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https://www.courtlistener.com/api/rest/v3/opinions/1337571/ | 229 S.C. 419 (1956)
93 S.E.2d 215
JACK J. WRIGHT, N.B. BAROODY, JULIAN A. PRICE and BEN DOZIER, Respondents,
v.
CITY OF FLORENCE, Appellant.
17170
Supreme Court of South Carolina.
June 5, 1956.
*420 W.H. Caldwell, Esq., of Florence, for Appellant.
*421 William H. Blackwell, Esq., of Florence, for Respondents, Jack J. Wright and N.B. Baroody.
Messrs. McEachin, Townsend & Zeigler, of Florence, for Respondent, Julian A. Price.
June 5, 1956.
STUKES, Chief Justice.
Under the recited authority of Section 7546 of the Code of 1942, as amended, the city council of Florence on July 1, 1950, adopted an ordinance whereby a Civil Service Commission was established in the city, conformable to the cited statute, with jurisdiction over the police and fire departments of the city. The statute is now codified as sections 47-721 to 47-740, both inclusive, of the Code of 1952. Sub-section 7546(11) of the Code of 1942, which appears in substance as section 47-740 of the Code of 1952, follows:
"It is not intended by this section to repeal any existing laws as they may affect municipalities of this State, but to extend and enlarge the powers of such municipalities as may fall within the population limitations of this section, *422 and as may elect to create such civil service commission by appropriate ordinance."
On December 8, 1955, council enacted an ordinance whereby the civil service ordinance of 1950 was expressly repealed.
Two members of the Civil Service Commission, whose terms of office had not expired, commenced this action against the city, and joined as defendants the chiefs of the police and fire departments, for declaratory judgment of invalidity of the repealing ordinance and for injunction of any act of the city under the authority of it.
It was alleged in the complaint: that the chiefs of the police and fire departments were made defendants individually and as representatives of the employees of the city; the establishment of the Civil Service Commission was in the exercise of an executive, not legislative, power of city council; there is no statutory authority for the repeal of the ordinance establishing the commission; the plaintiffs have a vested right in and to their statutory terms of office; and the attempted abolition of the commission affects the contractual rights of the employees of the city, whereby the attempted repeal of the ordinance of 1950 is void.
In the answer of the city it was claimed that it was authorized by its charter to establish the Civil Service Commission, and the statute is merely permissory; and the legal conclusions contained in the complaint with respect to the repealing ordinance were denied.
The defendant chief of the police department answered, cross-complained and alleged, inter alia: that the purpose of the attempted repeal of the ordinance was to discharge him from employment; the repealing ordinance violates the State and Federal constitutions in that it impairs contracts and deprives of property without due process of law; and that the answering defendant and other employees of the police department are entitled to performance by the city *423 of their respective contracts of employment, which was demanded.
The city answered the cross-complaint of the defendant chief of police, denied that his employment was induced by the 1950 ordinance and asserted that it is not binding upon the present council; and further generally denied the other allegations of the cross-complaint.
The foregoing is a scant summary of the pleadings but is sufficient for discussion and decision of the controlling issue presented by the appeal. The record does not contain any answer of the defendant chief of the fire department.
The controversy was heard by the lower court upon the pleadings, without evidence, and it was held that the attempted repeal of the ordinance whereby the civil service commission was established was invalid. It was concluded that the city could not have under its charter established the Civil Service Commission which the ordinance of 1950 did; the latter is solely referable to the statute which has been cited. It was reasoned that the creative power which gave rise to the commission lay in the statute and that the ordinance of 1950 was an exercise of the council's executive, rather than legislative, function. Conceding that under the statute the adoption of the civil service system was optional with the city, thereafter all of the provisions of the statute became mandatory upon the city and there being no provision in the statute for repeal of the adopting ordinance, it could not be repealed by council. The court expressly declined to decide, quoting from the order, "the question of contractual rights as presented by the cross-complaint of the defendant Julian A. Price (which) does not have to be answered in view of what has been decided. * * *"
The authority of Hardy v. Reamer, 84 S.C. 487, 66 S.E. 678, was relied upon by the court for its result. In that case, under Act No. 567 of 1902, 23 Stat. 1050, the City of Columbia was authorized to establish a Board of Police Commissioners, which was done by ordinance. Afterward *424 it was attempted to repeal the latter. The repeal was held to be invalid because the commission was created by the statute, without any right in the city to abolish; and the Commissioners were said to be officers of the State, which is not contended here with respect to the members of the civil service commission.
The Act of 1902 contained no such provisions as appear in sub-section 7546 (11) of the Code of 1942, which is quoted above. By it the legislature clearly expressed its intention not to inpinge upon any law theretofore affecting municipalities, and, on the contrary, intended, quoting from the statute, "to extend and enlarge the powers of such municipalities." Absent constitutional or statutory inhibition, among the powers of a municipality which existed before enactment of the statute was the power to repeal, by proper ordinance, any prior ordinance. In the early case of City Council of Charleston v. Wentworth Street Baptist Church, 1850, 4 Strob. 306, it was said, quoting: "It is plain (that) the power which enacted an ordinance may repeal it, unless the rights or privileges it conferred might be claimed in the nature of contract."
The rule is similarly and more fully stated by McQuillin, Municipal Corporations, 3rd Ed., Volume 6, Sec. 21-10: "Specific grant of power to repeal ordinances, however, ordinarily is not necessary since it is the general rule that power to enact ordinances implies power, unless otherwise provided in the grant, to repeal them. It is patently obvious that the effectiveness of any legislative body would be entirely destroyed if the power to amend or repeal its legislative acts were taken away from it." The following is also quoted from the cited section of McQuillin: "The power of repeal extends, generally speaking, to all ordinances. Indeed, a municipal corporation cannot abridge its own legislative powers by the passage of irrevocable ordinances. The members of its legislative body are trustees for the public, and the nature and limited tenure of their office impress the ordinances enacted by them with liability to change. One *425 council may not by an ordinance bind itself or its successors so as to prevent free legislation in matters of municipal government. Accordingly, in the absence of a valid provision to the contrary, a municipal council or assembly, having the power to legislate on, or exercise discretionary or regulatory authority over, any given subject may exercise that power at will by enacting or repealing an ordinance in relation to the subject. Thus, the power of repeal extends to legislative enactments and, a fortiori, to ordinances of an administrative character, as, for example, an ordinance fixing the fiscal year of a municipal corporation. The power does not extend, however, to authorize impairment of a contract or deprivation of property without due process of law."
Beside the limitation upon the right of repeal which impairs a contract or deprives one of property without due process of law, or, rather, the effect of the repeal (see infra), McQuillin notes another exception to the rule of implied power of repeal, which exists where an ordinance has been enacted under a narrow, limited grant of authority to do a single designated thing in the manner and at the time prescribed by the legislature, which excludes the implication that the city council is given any further jurisdiction over the subject than to do the one act. He expresses it another way, that no power of repeal exists as to an ordinance that constitutes the exercise of municipal power which is exhausted by its single exercise. An example of the latter is Thompson v. City of Marion, 1938, 134 Ohio St. 122, 16 N.E. (2d) 208, 210, where the city attempted to repeal an ordinance which set up a police and firemen's pension fund. The statute provided that such a system might be set up by ordinance where the council declared the necessity for it. The court concluded that the rule of implied power of repeal did not apply because the statute expressly limited authority to council to do a certain thing in the manner and within the time fixed by the legislature, and it was said in the opinion: "It [council] had only the power of determination *426 of the question of necessity and when that was found in the affirmative, its power was exhausted."
Repeal of a city service ordinance was upheld in City of Owensboro v. Board of Trustees, City of Owensboro Employees Pension Fund, 1945, 301 Ky. 113, 190 S.W. (2d) 1005, 1008. The court said: "Consequently, the repealing ordinance annulled, abrogated, and put an end to the Civil Service Ordinance. It must be admitted, however, that the repeal of it * * * did not and could not affect the vested rights and the inviolable contract of the employees who became such, and qualified under the Civil Service Ordinance within its operative life." In Stemmler v. Borough of Madison, 1912, 82 N.J.L. 596, 83 A. 85, there was upheld the repeal of an ordinance providing for the laying out of a street, the cost of rights of way apparently causing abandonment of the project. The repeal ordinance was contested by the plaintiff who had purchased an abutting lot. The court held applicable the rule of implied right of repeal, quoting, "when the ordinance is not a contract, or one that is, from its nature, exhausted by a single exercise."
Reverting to our reports, the case of Stone v. Mahon, 88 S.C. 576, 71 S.E. 300, is authority for reversal of the case in hand, and the court expressly said in it that it was not in conflict with Hardy v. Reamer, supra, 84 S.C. 487, 66 S.E. 678. There the legislature gave by act permissive authority to the municipality to establish a municipal court (as here a civil service commission) which it did; afterward the court was abolished by passage of an ordinance repealing the ordinance whereby it was established, and the ousted recorder (judge of the court) brought action. The decision is correctly stated in the headnote, as follows: "A city which is vested with power to create a municipal court by ordinance may repeal such ordinance and abolish the court during the term of office of the judge duly elected." The court made a sound distinction between the legislative act there involved, which gave permissory authority for the establishment by ordinance (as also in the case at hand), *427 and Act No. 566 of 1902, 23 Stat. 1048, which established (not authorized) recorder's courts in cities of a certain population class.
The distinction made in Stone v. Mahon exists with equal force in the case at bar when consideration is had of all of the contents of Chapter 7, Civil Service Commissions, Title 47, Municipal Corporations, of the Code of 1952. In art. 1, § 47-701 et seq., applicable to certain cities with commission forms of government, they shall establish by ordinance a civil service commission; section 47-709 of this article expressly exempts the city of Florence. Then follows Article 2, § 47-721 et seq., applicable to Florence and with which we are here concerned; it provides that a subject municipality may by ordinance provide for a civil service commission. Finally, there are articles 3 and 4, section 47-751 et seq., and section 47-781 et seq., applicable to municipalities of other specified population classes, in which there are thereby created civil service commissions. The difference is manifest. There is no doubt of the permissory nature of the legislative grant of power to the city of Florence to establish by ordinance its civil service commission; the legislature did not establish create it; council, perforce its ordinance, did. It follows that the statute did not prevent council from repealing its former, creative ordinance.
With respect to the plaintiffs, who were members of the Civil Service Commission before abolition of it by the repealing ordinance of 1955 and whose terms of office had not expired, it does not appear to be seriously contended that they have constitutional or contract rights which have been impaired. We conclude upon the record that they do not. They were officers, whose offices have been abolished. The following is from Stone v. Mahon, supra, 88 S.C. 576, 579, 71 S.E. 300, 301:
"`The fact that the effect of this ordinance was to oust the plaintiff from the office, which he held, before the expiration of the term for which he was elected, does not render *428 this legislation on the part of the city council invalid. The rule is thus concisely stated in Mechem on Public Officers, page 467: "Where the legislature has conferred upon a municipal board the authority to create offices, the board may abolish the offices so created, though the term of the incumbent has not expired." See, also, Cyc. 28, page 401, and Cooley's Constitutional Law, page 332. In the case of Board of Councilmen of City of Frankfort v. Brawner, 100 Ky. 166, 37 S.W. 950, at page 951, 38 S.W. 497, the Supreme Court of Kentucky uses this language: "And we know no reason why the municipal legislature that has, in the exercise of discretion given by the General Assembly, established a city office, may not, at will and at its pleasure, abolish it."'" (Other citations.)
See also the old and interesting case of Alexander v. McKenzie, 2 S.C. 81, where the mayor and aldermen of the city of Columbia were effectually legislated out of office; and the recent tangent decision in Newman v. McCullough, 212 S.C. 17, 46 S.E. (2d) 252. The following was said in the leading case of State ex rel. Lyon v. Rhame, 92 S.C. 455, 75 S.E. 881, 883, concerning state offices, which is analogous to the powers of council over municipal officers whose offices were created by council: "Public offices are created for the benefit of the commonwealth, incumbents have no contract or property rights in them, and, unless it be otherwise provided by the Constitution, they are subject entirely to legislative control. Hence, subject to the Constitution, the General Assembly may fix the term, provide for removal, abolish the office, reduce the term, and in every respect control the existence, powers, emoluments, and tenure of public officers."
We quote from 37 Am. Jur. 857, 858, Municipal Corporations, sec. 227: "Ordinarily, in the absence of constitutional or statutory restrictions, when a municipal corporation has power to create an office, it may abolish it. An office created by municipal ordinance may be abolished by ordinance; thereafter the incumbent ceases to be an officer. *429 Even when an officer by reason of having been appointed for a definite term, or by special statutory provision, cannot be lawfully removed except for cause after full hearing, his office may be summarily abolished whenever the proper municipal authorities deem it advisable. Tenure of office statutes and civil service statutes do not prevent a bona fide abolition of the office by the municipality." There is an annotation on the subject in 172 A.L.R. 1366, with cases relating to cities beginning at page 1383.
The defendant Chief of Police Price, as respondent, submitted sustaining grounds to the effect that his contractual rights had been unconstitutionally impaired by repeal of the ordinance, whereby the repeal was invalid as to him. There are several reasons why the contention cannot be adjudicated in this action. It was not decided by the lower court and is, therefore, not available to him as a ground to sustain the judgment. Carter v. Peace, S.C. 93 S.E. (2d) 113. Again, it may depend upon facts, evidence of which was not adduced in this action. Finally, this is not the proper form of action for the adjudication of his claims. The following is from 37 Am. Jur. 834, 835, Municipal Corporations, Sec. 197:
"The fact that the repeal of an ordinance cannot ordinarily be made to affect vested rights or contractual obligations is sometimes spoken of as a restriction on the power to repeal ordinances. It seems, however, that this restriction relates merely to the effect of the repeal. It is not that a city lacks power to repeal its ordinances, but that to the extent that the repeal affects vested rights or contractual obligations it may be inoperative. Even in such a case, however, the court will not ordinarily attempt to control the action of the municipal council, and if the council considers that the public interests require the repeal of an ordinance, in violation of a contract of the municipality, the court will not compel the specific performance of the contract but will leave the injured party to his remedy at law."
*430 Whatever rights Price has in the premises, if any, will not be adjudged in this action, and we intimate no opinion thereabout.
In the view which we have taken, it is unnecessary to consider appellant's position that it was empowered by its charter to establish by ordinance the civil service commission, and thereafter repeal it by ordinance. We hold that the power of repeal was implied, and no provision of the statute prevented it.
The appeal of the city is sustained.
The judgment is reversed and the injunction dissolved.
OXNER, LEGGE and MOSS, JJ., and T.B. GRENEKER, Acting Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337470/ | 559 S.E.2d 435 (2002)
274 Ga. 728
The STATE
v.
RODRIGUEZ.
No. S01A1679.
Supreme Court of Georgia.
February 4, 2002.
*436 J. Tom Morgan, Dist. Atty., Mike McDaniel, Asst. Dist. Atty., for appellant.
Lawrence Delan, Decatur, for appellee.
FLETCHER, Chief Justice.
Police arrested fifteen-year-old Carlos Rodriguez on two counts of murder and two counts of aggravated assault. The investigating officers misinformed Rodriguez that his mother had the right to decide whether he should speak to police or have an attorney present. After an extensive discussion about whether talking to police would help the accused, he and his mother signed a waiver form and police interrogated him. Rodriguez filed a motion to suppress the statement, which the trial court granted on the grounds that it was not voluntary and any waiver was not made knowingly and intelligently. Because the totality of the circumstances shows that Rodriguez did not knowingly and intelligently waive his constitutional rights and voluntarily make a statement, we affirm.
The question of whether a juvenile has made a knowing and intelligent waiver of his constitutional right to remain silent under the Fifth Amendment and right to counsel under the Sixth Amendment depends on the totality of the circumstances.[1] The government has a "heavy burden" in demonstrating that the juvenile understood and waived his rights.[2] Among the factors to be considered are the accused's age and education; his knowledge of the charge and his constitutional rights; his ability to consult with family, friends, or an attorney; the length, method, and time of the interrogation; and whether he previously had refused to give a statement or repudiated the statement later.[3] On appeal, we accept the trial court's findings on disputed facts and credibility of witnesses unless clearly erroneous, but independently apply the law to the facts.[4]
A critical factor in this case, as the trial court identified, is whether Rodriguez understood his constitutional right to consult with an attorney and right to remain silent. A review of the 47-minute taped interview and its transcript indicates that no one was clear about the nature of the accused's rights. The detective who served as a translator read the "Advice of Rights to Juvenile" form first to Mrs. Rodriguez in Spanish, which is her native language, and the four participants engaged in an extended discussion about her responsibility to invoke or waive the rights on behalf of her son. Only after a request by Rodriguez did the detective read the same Miranda[5] warning in English, the accused's primary language. The two detectives repeatedly told Mrs. Rodriguez that she would have to decide "on her own" whether to have an attorney present, it was her decision whether to talk, and she could stop talking to them at any time. When the detectives told her that she needed to make the decision, her son said, "Do it mom." *437 Mrs. Rodriguez acknowledged that "the decision is mine" and eventually allowed her son to answer questions, but later told police to stop the interview "because he doesn't know what he is talking about." Thus, the record supports the trial court's findings that the police incorrectly advised Rodriguez that his mother was the only person who could exercise his constitutional rights and, based on that erroneous advice, he gave her authority to decide whether he should make a statement to police.
Other factors support the trial court's ruling that Rodriguez's waiver of his constitutional rights was not made knowingly and intelligently. Rodriguez was 15 years old when questioned, had repeated the eighth grade, and dropped out of school in the ninth grade. He admitted having difficulty signing his name to the waiver form and was inarticulate both during his police interview and while testifying in court. He had stayed up until 4:00 a.m. on the day of his interview, sleeping less than four hours before police arrested him. The detectives refused to allow Rodriguez or his mother to consult with his older sister, who often acted as interpreter for their mother, and the entire interview is confusing due to the language barrier, the simultaneous discussions in English and Spanish, and the incomplete translations from one language to the other.
Finally, the method that police used in the interrogation, including whether they made threats or promises, is a significant factor in evaluating the voluntariness of the waiver here.[6] The witnesses at the hearing on the motion to suppress disagreed about whether the police detectives made any promise to Rodriguez and his mother during a preliminary discussion that was not recorded. After evaluating the witnesses' credibility, the trial court found that one detective told them that making a statement would help Rodriguez and his charges would be dropped or his sentence reduced if he gave a statement. Although the same officer attempted in the taped interview to clear up any confusion about the benefit that Rodriguez would gain from talking to police, we accept the trial court's ruling on the disputed facts concerning the officer's conduct since it is not clearly erroneous.
Considering the totality of the circumstances, we conclude that the state has not met its burden of demonstrating that Rodriguez knowingly, intelligently, and voluntarily waived his constitutional right to remain silent and right to counsel. Because the DeKalb County detectives misinformed the accused about the nature of his constitutional rights, Rodriguez did not understand that he had personal responsibility for deciding whether he should speak to police and could not rely on his mother to invoke or waive his rights. Of equal importance, the police induced the waiver by promising Rodriguez and his mother that the charges would be dropped or the sentence would be reduced later. Since the record shows that the accused's decision to talk was not knowingly, intelligently, and voluntarily made, we affirm the trial court's order granting the motion to suppress Rodriguez's statement.
Judgment affirmed.
All the Justices concur.
NOTES
[1] See Riley v. State, 237 Ga. 124, 128, 226 S.E.2d 922 (1976).
[2] Id.
[3] Id.; see Smith v. State, 263 Ga. 363, 364, 434 S.E.2d 465 (1993); State v. McBride, 261 Ga. 60, 63-64, 401 S.E.2d 484 (1991); Marshall v. State, 248 Ga. 227, 229-231, 282 S.E.2d 301 (1981).
[4] Linares v. State, 266 Ga. 812, 471 S.E.2d 208 (1996); see McBride, 261 Ga. at 65-66, 401 S.E.2d 484 (Hunt, J., concurring specially).
[5] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[6] See McBride, 261 Ga. at 64, 401 S.E.2d 484. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3781153/ | On September 15, 1928, the relator filed in this court an original action in quo warranto *Page 309
asking for a judgment of ouster against the respondent, and an induction of the relator into office. The petition in quowarranto alleged that the respondent was "wrongfully holding said office and exercising the powers, functions and prerogatives thereof."
Section 12303, General Code, authorizes an action in quowarranto against a person "who usurps, intrudes into, or unlawfully holds or exercises, a public office."
This action is brought by the relator in his private relation. Such being the case, in order to maintain his action, the relator "must show not only that he is entitled to the public office, but also that the identical office is unlawfully held and exercised by another." State, ex rel. Heer, v.Butterfield, 92 Ohio St. 428, at 432, 111 N.E. 279, 280;State, ex rel. Symons, v. Rice, 96 Ohio St. 574,117 N.E. 893.
The relator's petition, conforming to the statute and the foregoing decisions, alleges that the respondent "has been and is now unlawfully and wrongfully holding said office and exercising the powers, functions and prerogatives thereof." Notwithstanding said allegation that the respondent is holding and exercising the powers of the office in controversy, the record of this court, of which we take judicial notice, discloses the fact to be otherwise. At the time this petition in quo warranto was filed, there was pending in this court an action between the same parties involving the possession of this office; our records disclose that in that action, which was in mandamus, the respondent secured favorable judgments for the possession of the office in the lower courts, but that later this court stayed *Page 310
such judgments until further order, or the final determination by this court. Such being the case it appears that, by the orders of this court, respondent is not in possession of the office, and could not therefore exercise its functions.
This action in quo warranto is prematurely brought, and the motion to dismiss it will be sustained.
Motion sustained.
MARSHALL, C.J., DAY, KINKADE, ROBINSON and JONES, JJ., concur.
ALLEN, J., not participating. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/8312896/ | SALVADOR MENDOZA, JR., United States District Judge
On September 5, 2018, the Government filed an Indictment charging Defendant *1154Tommie Joe Flett with two counts: assault with a dangerous weapon and domestic assault by an habitual offender resulting in substantial bodily injury. ECF No. 1. On March 19, 2019, the Court rejected the parties' Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, granted Flett's oral motion to withdraw his guilty plea, and scheduled a pretrial conference and trial. ECF No. 40.
The Court held a pretrial conference on May 21, 2019. Before the Court was Flett's motion to dismiss count two and response to the Government's notice of prior convictions, ECF No. 54 ; Flett's motion to bifurcate or sever counts and response to the Government's notice of prior convictions, ECF No. 50 ; Flett's objections to anticipated expert testimony, ECF No. 49 ; and Flett's motions in limine , ECF No. 48. The Court ruled orally on each of Flett's motions and objections. This Order memorializes and supplements the Court's oral rulings, which are incorporated herein. The Court addresses each of Flett's motions and objections in turn.
A. Flett's motion to dismiss count two
Count two of the Indictment charges Flett with domestic assault by an habitual offender resulting in substantial bodily injury. ECF No. 1 at 2. Flett moves to dismiss count two, arguing insufficient evidence supports it because his criminal history does not contain the two predicate convictions required. ECF No. 54 at 4-8. For the jury to find Flett guilty of count two, the Government must prove beyond a reasonable doubt that, on or about July 12, 2018, he "ha[d] a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for offenses that would be, if subject to Federal jurisdiction ... any assault, sexual abuse, or serious violent felony against a[n] ... intimate partner." 18 U.S.C. § 117(a)(1) ; see also ECF No. 1 at 2.
Flett argues he has only one predicate conviction because his prior state and tribal convictions do not qualify as the second predicate.1 Applying the categorical approach, Flett argues his prior state and tribal convictions are overbroad because they require a lesser mens rea than the federal generic offenses, which require intent. ECF No. 54 at 4-7. Assuming, without deciding, that the categorical approach applies in this context, Flett's argument fails.
Both Flett and the Government point to simple assault and assault by striking, beating, or wounding (i.e., simple battery2 )- 18 U.S.C. § 113(a)(4) and (5) -as possible comparators. Id. at 5; ECF No. 61 at 8, 11, 12. Because § 113 "does not specify a mens rea requirement, nor does it define 'assault,' " the Ninth Circuit has "applied the common law definition of assault to § 113 crimes." United States v. Lamott , 831 F.3d 1153, 1156 (9th Cir.), cert. denied , --- U.S. ----, 137 S. Ct. 258, 196 L.Ed.2d 195 (2016). "Common law assault is defined as '(1) a willful attempt to inflict injury upon the person of another, also known as an attempt to commit battery, or (2) a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.' " Id. (quoting United States v. Lewellyn , 481 F.3d 695, 697 (9th Cir. 2007) ).
*1155"Under the common law, 'an assault is an attempted battery and proof of a battery will support conviction of an assault.' " Lewellyn , 481 F.3d at 697 (quoting United States v. Dupree , 544 F.2d 1050, 1052 (9th Cir. 1976) ). "[B]attery is a general intent crime." Lamott , 831 F.3d at 1157. "[A] general intent crime requires only that the act was volitional (as opposed to accidental), and the defendant's state of mind is not otherwise relevant." Id. at 1156. Thus, "[a]t common law, battery did not require intent to injure, only that the offensive touching was willful." Lewellyn , 481 F.3d at 697. Similarly, "[t]he mens rea requirement [for assault] is that the volitional act be willful or intentional; an intent to cause injury is not required." Id.
Incorporating these rules, the model jury instructions for simple assault and simple battery require that the defendant commit the act "intentionally." See Ninth Circuit Jury Instructions Comm., Manual of Model Criminal Jury Instructions 8.7A, 8.8 (2010 ed.). " 'Intentionally' applies to the act itself, and serves merely to distinguish nonvolitional or accidental conduct. The requirement that an act be done 'intentionally' is 'a perfectly adequate formulation of the idea of general intent.' " Lamott , 831 F.3d at 1158 n.1 (quoting United States v. Smith , 638 F.2d 131, 133 (9th Cir. 1981) ). And again, under that formulation, "[i]ntent to injure is not required"; indeed "criminal negligence or recklessness will suffice" as long as the act itself was intentional in the sense that it was volitional and voluntary. United States v. Juvenile Male , 930 F.2d 727, 728-29 (9th Cir. 1991) ; see also Lamott , 831 F.3d at 1156, 1158 n.1 ; United States v. Loera , 923 F.2d 725, 728 (9th Cir. 1991).
The Government alleges Flett has nine prior state and tribal convictions that qualify as predicates. ECF No. 61 at 4-5. But the Government relies most heavily on Flett's 2006 and 2008 Spokane Tribal Court convictions for second degree assault and battery. Id. at 9. Under the Spokane tribal code, "[a]ny person who shall willfully and knowingly use force or violence on another person shall be guilty of assault and battery in the second degree when he willfully and unlawfully touches, strikes or otherwise harms the person or body of another." SPOKANE TRIBE OF INDIANS, REV. LAW & ORDER CODE § 8-2.02(a) (2013), available at http://spokane tribe.com/userfiles/file/SLOC% 2005-14-2013% 20% 28Final% 29% 281% 29.pdf.
The plain language of this statute-specifically the words "willfully and knowingly" and "willfully and unlawfully"-requires that the defendant commit the act "intentionally" within the common law meaning outlined above. Specifically, this statute requires a volitional and voluntary act. Flett's argument that "willfully" is a lower mens rea than "intentionally," ECF No. 54 at 8, is mistaken because the words are synonymous in this context.3 Further, Flett's argument that this statute extends to nonbodily harm, id. , ignores the corporal focus of its plain language, which proscribes "us[ing] force or violence on another *1156person" by "touch[ing], strik[ing] or otherwise harm[ing] the person or body of another."
Therefore, Flett's 2006 and 2008 Spokane Tribal Court convictions for second degree assault and battery did not require a lesser mens rea than, and are no broader than, the federal generic offenses of simple assault and simple battery. The victims involved in those tribal convictions appear to have been Flett's intimate partners. See ECF No. 44 at 5 ; ECF No. 61 at 4. As a matter of law, either of those tribal convictions could qualify as Flett's second predicate.4
From this evidence, a rational jury could find beyond a reasonable doubt that Flett had the two required predicate convictions on or about July 12, 2018. In sum, it appears the Government may present sufficient evidence to prove Flett "ha[d] a final conviction on at least 2 separate prior occasions in Federal ... or Indian tribal court proceedings for offenses that would be, if subject to Federal jurisdiction ... any assault ... against a[n] ... intimate partner." 18 U.S.C. § 117(a)(1) ; see also ECF No. 1 at 2. Flett's motion to dismiss count two is DENIED.
B. Flett's motion to bifurcate or sever counts
Count one of the Indictment charges Flett with assault with a dangerous weapon. ECF No. 1 at 1. Count two of the Indictment charges Flett with domestic assault by an habitual offender resulting in substantial bodily injury. Id. at 2. For the jury to find Flett guilty of count one, the Government must prove the following elements beyond a reasonable doubt:
First, the defendant assaulted D.L. by intentionally wounding her;
Second, the defendant acted with the intent to do bodily harm to D.L.;
Third, the defendant used a dangerous weapon; and
Fourth, the assault took place within the external boundaries of the Colville reservation, in Indian country.
See Ninth Circuit Jury Instructions Comm., Manual of Model Criminal Jury Instructions 8.7 (2010 ed.); see also ECF No. 1 at 1 ; 18 U.S.C. § 113(a)(3). For the jury to find Flett guilty of count two, the Government must prove the following elements beyond a reasonable doubt:
First, the defendant knowingly assaulted D.L.;
Second, as a result, D.L. suffered substantial bodily injury;
Third, at the time of the assault, D.L. was the defendant's current or former intimate or dating partner;
Fourth, the assault took place within the external boundaries of the Colville reservation, in Indian country; and
Fifth, the defendant committed the assault after having a final conviction on at least two separate prior occasions in federal, state, or Indian tribal court proceedings for offenses that would be, if subject to federal jurisdiction, any assault, sexual abuse, or serious violent felony against an intimate partner.
See ECF No. 1 at 2 ; 18 U.S.C. § 117.
Flett moves to bifurcate trial proceedings because, he argues, the Government would prejudice his defense on count one by introducing evidence of his nine prior domestic assault convictions to prove count two's final element. ECF No. 50 at 1-3. Flett proposes withholding count two's final element, and corresponding evidence of his prior domestic assault convictions, *1157unless and until the jury finds the Government has proven all other elements of count two beyond a reasonable doubt. Id. at 3.
Under Federal Rule of Criminal Procedure 14, the Court may "order separate trials of counts" or "provide any other relief that justice requires" whenever "the joinder of offenses ... in an indictment ... appears to prejudice a defendant." Fed. R. Crim. P. 14(a). " Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts." Zafiro v. United States , 506 U.S. 534, 541, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Thus, under Rule 14, the Court has the authority to bifurcate trial proceedings in the exercise of sound discretion. United States v. Carlson , 423 F.2d 431, 435 (9th Cir. 1970).
"The defendant has the burden of proving that [a] joint trial w[ould be] manifestly prejudicial." United States v. Lewis , 787 F.2d 1318, 1321 (9th Cir. 1986). "The prejudice must ... be[ ] of such magnitude that the defendant's right to a fair trial w[ould be] abridged." Id. "Evidence is prejudicial only when it has an additional adverse effect on a defendant beyond tending to prove the fact or issue that justified its admission. A prior conviction is not prejudicial when it is an element of the charged crime." United States v. Barker , 1 F.3d 957, 959 (9th Cir. 1993).5 However, "[t]here is 'a high risk of undue prejudice whenever ... joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible.' " Lewis , 787 F.2d at 1321 (omission in original) (quoting United States v. Daniels , 770 F.2d 1111, 1116 (D.C. Cir. 1985) ). Therefore, the issue is whether Flett's prior domestic assault convictions are inadmissible as to count one, though necessary to count two.
"The use of other crimes evidence is not looked on favorably and its use must be narrowly circumscribed and limited." Id. Under Federal Rule of Evidence 404(b), evidence of a prior conviction is "not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character" but "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(1)-(2).
To establish that a prior conviction is admissible under Rule 404(b), the Government must show "(1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged." United States v. Rodriguez , 880 F.3d 1151, 1167 (9th Cir. 2018) (quoting United States v. Lloyd , 807 F.3d 1128, 1157-58 (9th Cir. 2015) ). "If the evidence meets this test under Rule 404(b), the court must then decide whether the probative value is substantially outweighed by the prejudicial impact under Rule 403." United States v. Martin , 796 F.3d 1101, 1106 (9th Cir. 2015) (quoting United States v. Bailey , 696 F.3d 794, 799 (9th Cir. 2012) ).
As to count one, Flett's prior domestic assault convictions are inadmissible under Rule 404(b). They all involved different *1158victims and are mostly remote in time because they were adjudicated between six and nineteen years ago (six, seven, seven, nine, ten, eleven, thirteen, seventeen, and nineteen years ago, respectively). See ECF No. 44 at 4-6 ; ECF No. 61 at 2, 4-5, 23-24. More importantly, Flett's prior domestic assault convictions are not sufficiently relevant to a material issue in count one and would be used only to show his propensity-that on this occasion he acted in conformity with his drunken, violent character toward his intimate partners.
The Government makes several arguments, none of which is persuasive. The Government argues these convictions show an intentional wounding with intent to do bodily harm. ECF No. 44 at 4-7, 8 n.1. But "[a] showing of intent to assault on an earlier occasion proves little, if anything, about an intent to assault at some later time." United States v. Bettencourt , 614 F.2d 214, 217 (9th Cir. 1980). The Government argues these convictions show an absence of mistake or lack of accident. ECF No. 44 at 4, 6, 8 n.1. But Flett disavows any case theory involving mistake or accident. ECF No. 50 at 11 ; ECF No. 66 at 10. The Government argues these convictions rebut a self-defense claim. ECF No 61 at 25. But Flett represents that he will not claim self-defense. ECF No. 66 at 10. The Government argues these convictions show modus operandi. ECF No. 44 at 4-5, 7. But far from establishing a distinctive criminal signature, Flett's pattern of drunken violence toward his prior intimate partners merely suggests bad character. The Government argues these convictions show motive through some form of provocation. ECF No. 56 at 5 ; ECF No 61 at 25. But this can be established on the facts of this case without reference to how Flett's prior intimate partners may or may not have provoked his assaults in past episodes. Additionally, the Government argues these convictions show identity. ECF No. 44 at 8 n.1 ; ECF No. 56 at 5 ; ECF No. 61 at 25. This argument is puzzling because Flett simply has not placed identity in issue.
The Government's strongest argument is that these convictions rebut a voluntary-intoxication defense. ECF No. 44 at 6. But it is uncertain whether Flett will raise such a defense. See ECF No. 50 at 11-12. Besides, rebutting such a defense is the same as proving specific intent and, as noted above, "[a] showing of intent to assault on an earlier occasion proves little, if anything, about an intent to assault at some later time." Bettencourt , 614 F.2d at 217.
Regardless, as to count one, Flett's prior domestic assault convictions are inadmissible under Rule 403. Their probative value is substantially outweighed by several dangers, including (1) unfair prejudice to Flett by suggesting he is guilty because he is a bad person, (2) confusing the issues the jury must decide and misleading the jury into a trial-within-a-trial by focusing on up to nine other victims and events long before the crime charged, (3) unduly delaying the proceedings and wasting time with testimony on matters unconnected to the present allegations, and (4) needlessly presenting cumulative evidence of Flett's various misdeeds.
Considering all, Flett's prior domestic assault convictions are inadmissible as to count one, though necessary to count two. In a joint trial on all elements, Flett would face " 'a high risk of undue prejudice' " to his defense on count one because of "[t]he danger that a jury will infer present guilt from prior convictions." Lewis , 787 F.2d at 1321 (quoting Daniels , 770 F.2d at 1116 ). This danger "cannot be ignored." Id.
In sum, Flett has proven that a joint trial on all elements would be "manifestly prejudicial" to his defense on count one because it would cause prejudice of such magnitude that his right to a fair trial would be abridged. Id. While a limiting *1159jury instruction could mitigate this undue prejudice, the Court exercises its discretion to provide a more robust safeguard that quarantines the prejudicial information unless and until the proper moment to consider it arrives. To save time and resources, the Court elects bifurcation over severance. Flett's motion to bifurcate trial proceedings is GRANTED and his alternative motion to sever counts for trial is DENIED AS MOOT . Count two's final element, and corresponding evidence of Flett's prior domestic assault convictions, shall be withheld unless and until the jury finds the Government has proven all other elements of count two beyond a reasonable doubt. If the jury finds the Government has proven all other elements of count two beyond a reasonable doubt, the Court will reopen trial for the limited purpose of determining whether Flett committed the assault after having a final conviction on at least two separate prior occasions in federal, state, or Indian tribal court proceedings for offenses that would be, if subject to federal jurisdiction, any assault, sexual abuse, or serious violent felony against an intimate partner.
C. Flett's objections to anticipated expert testimony
Flett raises two objections to certified physician assistant Christopher C. McGlothlen's anticipated testimony regarding D.L. and David A. Louie, Jr. ECF No. 49 at 3-5.
First, Flett objects to McGlothlen's testimony repeating D.L. and Louie's out-of-court statements because they are testimonial hearsay and admitting them through McGlothlen would violate Flett's confrontation rights if D.L. and Louie do not testify and he receives no opportunity to cross-examine them. Id. at 3. The Government argues the statements, which describe the source of physical injuries, fit a hearsay exception because they were made either (1) for the purpose of medical diagnosis or treatment, or (2) to describe a then-existing physical condition. ECF No. 57 at 2-3 (citing Fed. R. Evid. 803(3), (4) ). Further, the Government argues the statements are not testimonial because their primary purpose was to receive medical assistance, not to assist prosecution. Id. at 3-5 (citing Michigan v. Bryant , 562 U.S. 344, 359, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) ). Finally, the Government argues admitting the statements through McGlothlen would not violate Flett's confrontation rights because D.L. and possibly Louie may testify, in which case he will receive an opportunity to cross-examine them. Id. at 3. The Court agrees with the Government on all points. Accordingly, Flett's first objection is OVERRULED .
Second, Flett objects to McGlothlen's testimony on the cause of D.L. and Louie's wounds because he is not qualified as an expert on that subject. ECF No. 49 at 3-5. The Government agrees not to elicit such testimony. ECF No. 57 at 6. Accordingly, Flett's second objection is SUSTAINED .
D. Flett's motions in limine
1. Flett's motion to exclude accusations of child molestation
Flett moves to exclude accusations that he committed a sex offense involving children. ECF No. 48 at 3-4. This evidence includes but is not limited to Flett's own statement that, sometime before the alleged assault, D.L. accused him of inappropriately touching her children. ECF No. 56 at 3 ; ECF No. 65 at 3-4. The Government opposes the motion, arguing such evidence is admissible to establish motive. ECF No. 56 at 2-4. However, the probative value of such evidence is substantially outweighed by its danger of unfair prejudice to Flett. See Fed. R. Evid. 403. Accordingly, this motion is GRANTED , except if the Court *1160declares Flett opened the door to such evidence.
2. Flett's motion to exclude evidence of an unrelated arrest warrant
Flett moves to exclude evidence that, at the time of his arrest in this case, he had an outstanding warrant for his arrest in an unrelated matter. ECF No. 48 at 4-6. The Government does not intend to introduce such evidence but reserves the right to do so if Flett opens the door to it. ECF No. 56 at 4. Accordingly, this motion is GRANTED , except if the Court declares Flett opened the door to such evidence.
3. Flett's motion to preclude evidence of tribal exclusion
Flett moves to preclude evidence that, in 2009, the Spokane Indian Reservation issued an order excluding him from its property. ECF No. 48 at 6-7. The Government does not intend to introduce such evidence but reserves the right to do so if Flett opens the door to it. ECF No. 56 at 4. Accordingly, this motion is GRANTED , except if the Court declares Flett opened the door to such evidence.
4. Flett's motion to exclude prior conviction records
Flett moves to exclude his prior conviction records. ECF No. 48 at 8-10. The Government opposes this motion. ECF No. 56 at 5-6. But considering the above analysis regarding dismissal and bifurcation, this motion is GRANTED with two exceptions: (1) the Government may introduce Flett's prior domestic assault convictions to prove he has the two predicate offenses required by count two, and (2) the Government may use Flett's prior domestic assault convictions to impeach him or otherwise rebut his case theory if the Court declares he opened the door to those subjects.
Accordingly, IT IS HEREBY ORDERED:
1. Flett's motion to dismiss count two, ECF No. 54 , is DENIED.
2. Flett's motion to bifurcate or sever counts, ECF No. 50 , is GRANTED IN PART (as to bifurcation) and DENIED AS MOOT (as to severance).
A. Count two's final element, and corresponding evidence of Flett's prior domestic assault convictions, shall be withheld unless and until the jury finds the Government has proven all other elements of count two beyond a reasonable doubt.
B. If the jury finds the Government has proven all other elements of count two beyond a reasonable doubt, the Court will reopen trial for the limited purpose of determining whether Flett committed the assault after having a final conviction on at least two separate prior occasions in federal, state, or Indian tribal court proceedings for offenses that would be, if subject to federal jurisdiction, any assault, sexual abuse, or serious violent felony against an intimate partner.
3. Flett's objections to anticipated expert testimony, ECF No. 49 , are OVERRULED IN PART (as to the first objection) and SUSTAINED IN PART (as to the second objection).
4. Flett's motions in limine , ECF No. 48 , are GRANTED IN PART (as to all four motions) and DENIED IN PART (to the extent Flett opens the door and the Court declares he has done so).
*1161IT IS SO ORDERED. The Clerk's Office is directed to enter this Order and provide copies to all counsel.
Flett "concedes that his prior federal conviction constitutes one predicate conviction for purposes of 18 U.S.C. § 117(a)," ECF No. 54 at 9 n.9, but disputes whether any of his prior state and tribal convictions qualify as the second predicate, id. at 4-8.
Assault by striking, beating, or wounding is the "equivalent of simple battery." United States v. Juvenile Male , 930 F.2d 727, 728 (9th Cir. 1991).
See Loera , 923 F.2d at 728 ("The term 'willful' as used at common law as an element of a general intent crime refers to a volitional act. A willful act is a voluntary act. A voluntary act is one in which the individual has the ability to choose his course of conduct. The only question is whether the person could have refrained from doing it, or whether he was controlled by some irresistible power. If he could have refrained, the act is voluntary; but, if he was impelled by some irresistible force, it is involuntary." (internal quotation marks, ellipsis, and citation omitted)); Lamott , 831 F.3d at 1158 n.1 (" 'Intentionally' applies to the act itself, and serves merely to distinguish nonvolitional or accidental conduct. The requirement that an act be done 'intentionally' is 'a perfectly adequate formulation of the idea of general intent.' " (quoting Smith , 638 F.2d at 133 )).
Considering this analysis, the Court does not determine whether Flett's remaining seven state and tribal convictions qualify as predicates.
In Barker , the Ninth Circuit held "the district court may not bifurcate the single offense of being a felon in possession of a firearm into multiple proceedings." 1 F.3d at 959. Barker is distinguishable for the reasons Flett articulates. See ECF No. 50 at 3. Therefore, the Court retains discretion to bifurcate count two's final element from all other elements in this case. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/994688/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHELBY LEARY, Commissioner, State
of West Virginia Division of Labor,
on behalf of David Belcher, Calvin
Cheeks, Jeffrey Cheeks, Ransome
Mitchem, Johnny Brown, David
Denton, David Hagerman, Harlin
Hagerman, Robert Hill, Stephen
O'Dell, Bernard Simpson, Ira
Simpson, Claude Smith, and
No. 96-1005
Anthony Taylor,
Plaintiff-Appellee,
v.
BLUESTONE COAL CORPORATION,
Defendant-Appellant,
and
JAMES C. JUSTICE, individually,
Defendant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CA-93-1191-2)
Argued: October 31, 1997
Decided: April 6, 1998
Before WIDENER and ERVIN, Circuit Judges, and
BULLOCK, Chief United States District Judge for the
Middle District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Charles Leslie Woody, SPILMAN, THOMAS & BAT-
TLE, Charleston, West Virginia, for Appellant. Daynus Jividen,
OFFICE OF THE ATTORNEY GENERAL, Charleston, West Vir-
ginia, for Appellee. ON BRIEF: Eric W. Iskra, SPILMAN,
THOMAS & BATTLE, Charleston, West Virginia, for Appellant.
William S. Steele, Managing Deputy Attorney General, Amie Lang-
fitt Johnson, Assistant Attorney General, OFFICE OF THE ATTOR-
NEY GENERAL, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This appeal presents the issue of whether, under the circumstances
of this case, West Virginia's Wage Payment and Collection Act (the
"Wage Payment Act"), W. Va. Code §§ 21-5-1 et seq., is pre-empted
by federal labor law. Finding that the district court correctly con-
cluded that the Wage Payment Act was not pre-empted by federal
labor law, we affirm.
Appellee Commissioner of the West Virginia Department of Labor
(the "Commissioner") brought this complaint against Appellant Blue-
stone Coal Corporation ("Bluestone") and James C. Justice1 in state
court on behalf of twenty-six individuals who were former employees
of BBC Coal Company, Inc. ("BBC"), Thurman Coal Company
_________________________________________________________________
1 Defendant Justice was dismissed from this action by order dated
April 21, 1994. J.A. at 36.
2
("Thurman"), Grayhead Mining Company ("Grayhead"), and C&O
Mining Corp. ("C&O").2 Only the claim brought on behalf of the for-
mer employees of C&O is relevant in this appeal. The former employ-
ees of C&O allege that C&O owes them wages and fringe benefits
and that the Wage Payment Act entitles them to collect those monies
from Bluestone in its capacity as a prime contractor within the mean-
ing of the Wage Payment Act.3
The facts underlying this dispute are straightforward. During the
last six months of their employment, the C&O employees did not
receive wages and fringe benefits at the rate required by the 1988
National Bituminous Coal Wage Agreement. Instead, C&O negoti-
ated a separate contract with the employees and paid them at a lower
_________________________________________________________________
2 Bluestone removed this action to federal court on the ground that the
Commissioner's claims were subject to complete pre-emption under vari-
ous sources of federal law including labor law and the Employment
Retirement Income Security Act of 1974 ("ERISA"). The Commissioner
then moved to remand the action to state court. While the motion to
remand was pending, the claims with respect to the former employees of
Thurman and Grayhead were settled and dismissed. J.A. at 20, 54. The
district court then denied the Commissioner's motion to remand. The dis-
trict court found that removal was proper as to the entire action because
the Commissioner's claim with respect to BBC was subject to complete
pre-emption pursuant to Section 301 of the Labor Management Relations
Act (the "LMRA"), 29 U.S.C. § 185. J.A. at 63-71; see 28 U.S.C.
§ 1441(c); Franchise Tax Bd. of California v. Construction Laborers
Vacation Trust for S. California, 463 U.S. 1, 13 (1983); Rosciszewski v.
Arete Assocs., Inc., 1 F.3d 225, 229 n.3 (4th Cir. 1993). The district court
thereafter granted Bluestone's motion for summary judgment directed at
the claim brought on behalf of BBC employees because the claim was
pre-empted by Section 301 of the LMRA, and under Section 301 a claim
could not be maintained against Bluestone as a non-signatory to the rele-
vant collective bargaining agreement. J.A. at 85-86.
3 Under the Wage Payment Act, if the employer fails to pay in full the
wages of its employees including then accrued fringe benefits, then a
"prime contractor" is liable for "payment of wages and fringe benefits . . .
to the extent that the employer of such employee fails to pay such wages
and fringe benefits." W. Va. Code § 21-5-7. Bluestone does not dispute
that it is a prime contractor within the meaning of the Wage Payment
Act. See J.A. at 53.
3
rate. J.A. at 78. As a result, unfair labor practice charges were filed
against C&O with the National Labor Relations Board (the "NLRB"),
which entered a compliance order against C&O for net back pay,
fringe benefits, and medical benefits. J.A. at 52, 78. This court upheld
enforcement of the NLRB award. Id.
The Commissioner's claim on behalf of the C&O employees arose
because C&O failed to pay in full the wages owed pursuant to this
NLRB award, apparently because C&O had gone out of business. See
Appellee's Br. at 11. In its motion for summary judgment, Bluestone
asserted that the Commissioner's claim under the Wage Payment Act
on behalf of the C&O employees was pre-empted by federal labor law
governing successor liability for unfair labor practices. Bluestone did
not cite to authority or identify relevant pre-emption principles sup-
porting this position before the district court. J.A. at 79.
The district court rejected Bluestone's argument. The district court
found Section 301 pre-emption did not apply because the rights cre-
ated by the Wage Payment Act were independent of the collective
bargaining agreement and could be resolved without interpretation of
the agreement. Because Bluestone conceded that it would be liable for
the amounts owing to C&O employees if the Wage Payment Act was
not pre-empted, the district court subsequently entered an order grant-
ing judgment against Bluestone as to the C&O employees. J.A. at
100.
After the district court denied Bluestone's motion for reconsidera-
tion, Bluestone filed a timely appeal to this court. On appeal, Blue-
stone does not challenge the district court's determination that
Section 301 pre-emption is inapplicable in this case. Indeed, Blue-
stone concedes that Section 301 pre-emption does not apply. See
Appellant's Br. at 19. Instead, Bluestone relies on San Diego Bldg.
Trades Council v. Garmon, 359 U.S. 236 (1959), to argue that the
Commissioner's claim is pre-empted because the Wage Payment Act
interferes with "the unfair labor practices of C&O Mining and the
[NLRB's] compliance rules and regulations dealing with such viola-
tions." Appellant's Br. at 23. Thus, under Bluestone's theory, because
Section 8 of the National Labor Relations Act (the "NLRA"), 29
U.S.C. § 158, provides the NLRB with exclusive jurisdiction to adju-
dicate unfair labor practice charges, neither the state courts nor the
4
federal courts have jurisdiction to consider whether Bluestone should
be liable for C&O's unfair labor practices. Bluestone misunderstands
the nature of the Commissioner's claim and the scope of Garmon pre-
emption.
Pre-emption by federal law is a question of law subject to de novo
review. See Cox v. Shalala, 112 F.3d 151 (4th Cir. 1997). In Garmon,
the Supreme Court made two statements which have provided general
guidelines for determining the unexpressed intent of Congress regard-
ing the permissible scope of a state's regulation of activity touching
upon labor-management relations. As to conduct clearly protected or
prohibited by Sections 7 and 8 of the NLRA, the Garmon Court
stated:
When it is clear or may fairly be assumed that the activities
which a State purports to regulate are protected by§ 7 of the
National Labor Relations Act, or constitute an unfair labor
practice under § 8, due regard for the federal enactment
requires that state jurisdiction must yield. To leave the
States free to regulate conduct so plainly within the central
aim of federal regulation involves too great a danger of con-
flict between power asserted by Congress and requirements
imposed by state law.
359 U.S. at 244. The Garmon Court also made the following, more
sweeping statement: "When an activity is arguably subject to § 7 or
§ 8 of the Act, the States as well as the federal courts must defer to
the exclusive competence of the National Labor Relations Board if
the danger of state interference with national policy is to be averted."
Id. at 245.
Relying on these statements, Bluestone argues that West Virginia's
Wage Payment Act impermissibly interferes with the NLRB's juris-
diction over C&O's unfair labor practices, and its rules and regula-
tions with respect to compliance, and that, accordingly, federal law
has pre-empted the "collection of NLRB awards." Appellant's Br. at
18.
However, Bluestone overlooks the fact that the Supreme Court has
refused to apply the Garmon guidelines "in a literal, mechanical fash-
5
ion." Sears, Roebuck & Co. v. San Diego County Dist. Council of
Carpenters, 436 U.S. 180, 188 (1977). Thus, the Supreme Court has
held that:
Under Garmon, a State may regulate conduct that is of only
peripheral concern to the Act or that is so deeply rooted in
local law that the courts should not assume that Congress
intended to pre-empt the application of state law. .. . [In
Sears,] we emphasized that a critical inquiry in applying the
Garmon rules, where the conduct at issue in the state litiga-
tion is said to be arguably prohibited by the Act and hence
within the exclusive jurisdiction of the NLRB, is whether
the controversy presented to the state court is identical with
that which could have been presented to the Board .
Belknap, Inc. v. Hale, 463 U.S. 491, 509-10 (1983) (emphasis added).
In view of these principles, Bluestone's reliance on Garmon pre-
emption is misplaced. The conduct at issue under the Wage Payment
Act is not an issue which is identical to that which could have been
presented to the NLRB. The NLRB's inquiry into C&O's unfair labor
practices involved an examination of the unilateral dealing done by
C&O with its employees and an examination of NLRA Section 8.
Federal labor law rules with respect to successor liability, in turn, deal
with the circumstances in which liability for a predecessor's unfair
labor practices may be imputed to a successor corporation. See, e.g.,
Golden Gate Bottling Co., Inc. v. NLRB, 414 U.S. 168 (1973).
In contrast, prime contractor liability involves an examination of
the relationship between Bluestone and C&O, Bluestone's prime con-
tractor status, and West Virginia's Wage Payment Act. As the district
court consistently emphasized, prime contractor liability does not
involve any inquiry into whether C&O committed unfair labor prac-
tices, or whether Bluestone may be liable for those practices as a suc-
cessor. See J.A. at 118-19. Thus, prime contractor liability is not an
issue which could have been presented to the NLRB and is not an
issue with which the NLRB would have been concerned. In short, the
Wage Payment Act does not turn on successor liability and in no way
interferes with federal labor law rules with respect to successor liabil-
ity.
6
Moreover, as the Commissioner notes, the Wage Payment Act
expresses a policy which is rooted deeply in the local law of West
Virginia and consequently is not a law which courts should assume
Congress intended to pre-empt under the NLRA. See Mullins v.
Venable, 171 W. Va. 92, 297 S.E.2d 866 (1982). For the foregoing
reasons, we affirm the district court's decision denying Bluestone's
motion for summary judgment and granting judgment in favor of the
Commissioner.
AFFIRMED
7 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2894445/ | NO. 07-04-0463-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 17, 2006
______________________________
JOHNNY RODRIGUEZ, JR., APPELLANT
V.
JOHN LEZA AND ICON BENEFIT ADMINISTRATORS, INC., APPELLEES
_________________________________
FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-521,380; HONORABLE MACKEY HANCOCK, JUDGE
_______________________________
Before REAVIS and CAMPBELL, JJ. and BOYD, S.J.1
MEMORANDUM OPINION
Appellant Johnny Rodriguez challenges a judgment enforcing a Rule 11 mediation
agreement between himself and John Leza and an order of dismissal of his action against
ICON Benefit Administrators, Inc. Based on the following rationale, we affirm.
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Rodriguez and Leza were involved in an automobile collision in 2001. On March 21,
2003, Rodriguez, an employee of the City of Lubbock, filed suit against Leza seeking to
recover for personal injuries he sustained in the collision. After discovery progressed,
Rodriguez and Leza agreed to submit the dispute to mediation. At mediation, Rodriguez
and Leza signed a written mediation agreement pursuant to Rule 11 of the Rules of Civil
Procedure whereby Leza agreed to pay $6,500 to settle all claims arising out of the
collision. In return, Rodriguez agreed to indemnify Leza and to provide Leza with either a
release or a negotiated amount to be paid to the City of Lubbock’s health insurance
provider, HMO Blue, and workers’ compensation carrier, ICON.2
Following the mediation, Leza’s counsel prepared the necessary documents and
forwarded them to Rodriguez. However, Rodriguez, unable to reach an agreement with
ICON, refused to execute the settlement documents. Instead, on January 8, 2004, without
leave of the trial court, Rodriguez filed an amended petition attempting to join and add
ICON as a defendant. It appears from the record that the case remained dormant until
Leza filed the mediation agreement with the court on July 1, 2004, and moved that the
court enforce the agreement pursuant to Rule 11, or in the alternative, grant summary
judgment relief.
After notice of the filing and setting of a hearing, the court held a hearing on the
motion on August 6, 2004; however, neither Rodriguez nor his counsel were present at the
2
Rodriguez filed claims with both carriers, and both carriers paid for his medical
expenses.
2
hearing.3 Following the hearing, on August 12, 2004, the trial court signed its judgment that
the mediation agreement between Rodriguez and Leza be enforced and dismissed
Rodriguez’s suit against Leza.4 In addition, the order signed August 12, 2004, also
included a provision dismissing Rodriguez’s action against ICON Benefit Administrators,
Inc. with prejudice.
By his sole point of error, Rodriguez contends the trial court erred in granting
summary judgment in favor of ICON Benefit Administrators. We disagree. Although Leza’s
motion sought a summary judgment as alternative relief, ICON did not file a motion seeking
summary judgment or otherwise. Instead, according to the reporter’s record of the hearing
on August 6, 2004, noting that Rodriguez had attempted to join ICON without leave of the
court contrary to Lubbock County local Rule 3.40(B)(2), the trial court ordered that
Rodriguez’s action against ICON be dismissed. The order signed by the court included a
paragraph dismissing the suit against ICON.
Because a summary judgment was not rendered and Rodriguez does not present
a point of error challenging the dismissal for misjoinder or otherwise, Rodriguez’s sole point
of error presents nothing for review and is overruled.
3
Counsel for Rodriguez acknowledged he received a copy of the motion
approximately one month prior to the hearing, but that it was subsequently misfiled and was
never placed on his calendar.
4
By this appeal, Rodriguez does not contend that the trial court erred in confirming
the mediation agreement and dismissal of the case as to Leza.
3
Accordingly, the trial court’s judgment is affirmed.
Don H. Reavis
Justice
4 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2894149/ | NO. 07-05-0339-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 12, 2006
______________________________
THE STATE OF TEXAS, APPELLANT
V.
JOSEPH LANDON RIDENOUR, APPELLEE
_________________________________
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 6573; HONORABLE LEE WATERS, JUDGE
_______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellee Joseph Landon Ridenour was charged with capital murder. The State of
Texas appeals from the trial court’s ruling on appellee’s motion to suppress. Presenting
a sole issue, the State contends the trial court abused its discretion in suppressing and
excluding appellee’s voluntary and inculpatory statements that were not the subject of
custodial interrogation and that were recorded on State’s Exhibit 4. We reverse and
remand.
Appellee and the deceased had dated on and off and lived together at one time.
After the deceased was discovered, appellee was sought by law enforcement officers as
a person of interest. Appellee was not answering his phone nor his door, and officers
became concerned for his welfare upon learning he had recently been diagnosed with
diabetes and was suffering blackouts and diabetic comas. They contacted the apartment
manager who alerted the maintenance man to let the officers into appellee’s apartment.
Upon gaining entry into the apartment, officers observed appellee holding a gun
under his chin and heard him pull the trigger, but the gun did not discharge. One of the
officers was able to secure the gun away from appellee without resistance. Appellee was
read his rights and handcuffed before being escorted to a patrol car by Reserve Deputy
Vincent Marasco for transport to the police department.
According to Marasco’s testimony, he was not involved in the initial entry of
appellee’s apartment nor in any investigation but had been dispatched to the scene at a
later time where he was directed to secure the gun and transport appellee. Marasco was
equipped with a body microphone that transmitted to the video recorder in his patrol car.
According to Marasco, the video and audio ran continuously once he turned it on.
2
Approximately 35 minutes were recorded on the video labeled State’s Exhibit 4.
Portions of the audio are difficult to discern. The videotape spans the entire time from
when appellee was escorted out of his apartment and transported to the police station
where he and Marasco waited in an office until a detective arrived to interview him.
Marasco testified he did not question nor interrogate appellee at any time, but that appellee
did make voluntary statements to him as they engaged in casual conversation.
Defense counsel’s objection that State’s Exhibit 4 did not comply with article 38.22
of the Texas Code of Criminal Procedure and that it was not an accurate recording was
overruled. The State argued that article 38.22 did not apply because the content of the
exhibit was not the result of custodial interrogation.
After an in-chambers review of State’s Exhibit 4, the trial court made an oral ruling
that the audio/video device failed and was incapable of making an accurate recording. The
trial court also found that no oral statements made by appellee in response to questioning
by officers would be admissible. The trial court signed a written order denying appellee’s
motion with the exception that:
because the Defendant was in custody, no oral statement made by the
Defendant during the time period shown on State’s Exhibit 4 is admissible.
In this connection with respect to Exhibit 4, the Court finds that an accurate
recording of the Defendant’s statements was not made as required under
Article 38.22, Section 3, Code of Criminal Procedure.
That same date, the trial court signed a clarification order providing in relevant part:
3
no oral statements of the Defendant made in respect to custodial
interrogation is [sic] admissible. The Court makes no finding as to any other
statements of the Defendant not made as a result of custodial interrogation
which may be contained on State’s Exhibit 4.
It is undisputed that appellee was in custody at the time State’s Exhibit 4 was
recorded. The State maintains, however, that any inculpatory statements made were not
the result of custodial interrogation, and thus, the trial court made a mistake of law in
applying article 38.22 of the Code. We agree.
Generally a trial court's ruling on a motion to suppress is reviewed for abuse of
discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Cr.App. 2002). However, where,
as here, we are presented with a question of law based on undisputed facts, we perform
a de novo review. See Dyar v. State, 125 S.W.3d 460, 462 (Tex.Cr.App. 2003).
Voluntary, non-custodial statements are exempt from the requirements of Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct.1602, 16 L. Ed. 2d 694 (1966), and article 38.22 of the
Code of Criminal Procedure. Granviel v. State, 723 S.W.2d 141, 146 (Tex.Cr.App. 1986).
Article 38.22 generally precludes the use of statements that result from custodial
interrogation, absent compliance with procedural safeguards. Shiflet v. State, 732 S.W.2d
622, 623 (Tex.Cr.App. 1985) (en banc). The State concedes appellee was in custody; thus,
the decisive question is whether appellee made any statements resulting from interrogation.
Interrogation refers not only to express questioning, but also to words or actions of
police officers that they should know are reasonably likely to elicit an incriminating response
4
from a suspect. Rhode Island v. Innis, 446 U.S. 291, 299-302, 100 S. Ct. 1682, 64 L. Ed. 2d
297 (1980); Morris v. State, 897 S.W.2d 528, 531 (Tex.App.–El Paso 1995, no pet.). As
conceptualized in Miranda, interrogation must reflect a measure of compulsion above and
beyond that inherent in custody itself. Innis, 446 U.S. at 300. When a suspect in custody
spontaneously volunteers information that is not in response to interrogation by officers, the
statement is admissible even though not recorded because it is not the product of custodial
interrogation. See Stevens v. State, 671 S.W.2d 517, 520 (Tex.Cr.App. 1984); Smith v.
State, 60 S.W.3d 885, 889 (Tex.App.–Amarillo 2001, no pet.).
We have reviewed State’s Exhibit 4 in its entirety. Marasco testified that upon
reviewing the videotape he noticed it cut in and out, but confirmed the equipment was
functioning properly. While questioned on voir dire, he explained his body movements and
the distance between his body microphone and his patrol car may have affected the
recording.
During our review of State’s Exhibit 4, we discerned comments by Marasco and
voluntary statements by appellee. While in the patrol car, Marasco asked appellee if he
was all right. At the station, Marasco told appellee he was removing the handcuffs and
later arranged for appellee to have coffee. Much of the conversation by appellee was
about his diabetes and his blackouts. He also made voluntary statements, i.e., not
remembering what he did during blackouts, having a bad temper, wondering if he was
dreaming, never being in trouble until then, never doing anything like that in his life.
5
There is nothing in the testimony at the suppression hearing or on the videotape to
indicate Marasco interrogated appellee by questions, words, or actions hoping to elicit
incriminating statements from him. Any inculpatory statements made by appellee, although
made while in custody, were voluntary because they were not made in response to
interrogation by Marasco. We conclude the trial court abused its discretion in granting the
motion to suppress based on article 38.22, section 3 of the Code of Criminal Procedure.
We sustain the State’s sole issue; however, we express no opinion regarding the
admissibility of State’s Exhibit 4 under the Texas Rules of Evidence or other applicable
laws or rules, nor should this opinion be read to preclude the taking of additional evidence
on the question of whether statements recorded on State’s Exhibit 4 were the product of
custodial interrogation.
Accordingly, the trial court’s order on appellee’s motion to suppress is reversed and
the cause is remanded to the trial court for further proceedings.
Don H. Reavis
Justice
Do not publish.
6 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2894176/ | NO. 07-05-0072-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 10, 2006
______________________________
CHARLES STERLING MOBLEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 47,640-E; HON. DAVID L. GLEASON, PRESIDING
_______________________________
Memorandum Opinion
______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Charles Sterling Mobley appeals his conviction for possessing a controlled
substance and the accompanying four year sentence. The conviction occurred after the
State moved to adjudicate his guilt; adjudication of the latter had previously been deferred
per a plea bargain. Appellant raises six issues which we address in turn, and upon
addressing them we will affirm the judgment as modified.
Issues one and two implicate the trial court's decision to adjudicate appellant's guilt.
Because the issues implicate that decision, we have no jurisdiction to consider them.
Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005).
Through issues three and four, appellant contends that the trial court erred in stating,
within the judgment, that appellant agreed to the sentence and wished not to appeal. This
purportedly was error because no evidence appears of record supporting those statements.
Having reviewed the record, we agree with appellant. However, the error does not affect
the conviction or sentence imposed. Thus, we will simply modify the judgment to redact
those statements from it. Tex. R. App. P. 43.2(b) (allowing an appellate court to enter the
judgment which the trial court should have entered).
Through his last two points, appellant questions the validity of the sentence imposed.
It is purportedly invalid because the trial court failed to take judicial notice of the evidence
admitted at the original plea hearing. Thus, it had no evidence upon which to determine
the amount of methamphetamine appellant possessed, which, in turn prevented it from
determining the category of the crime (e.g. first, second or third degree felony) and the
quantum of punishment to impose. Unmentioned by appellant, however, are the facts
(appearing of record) that 1) the State indicted appellant for possessing "one gram or more
but less than four grams" of methamphetamine, 2) appellant judicially confessed in writing
to the veracity of the accusation in the indictment as part of the original plea bargain, 3)
both the indictment and confession appeared in the clerk's record, and 4) the trial court
expressly mentioned the confession several times before assessing punishment. As
argued by appellant, the trial judge ultimately convicting him and levying sentence differed
from the one who initially deferred appellant's adjudication of guilt. Given that the second
judge was not involved in the original plea hearing but knew of appellant's confession, that
both the confession and indictment were part of the clerk's record, and that the court
expressly referred to the confession, one can reasonably deduce that the trial court took
judicial note of that confession as well as its scope and effect when levying sentence. See
Holloway v. State, 666 S.W.2d 104, 108 (Tex. Crim. App. 1984) (holding that a trial court
may judicially note, sua sponte, the case record). Furthermore, appellant cites us to
nothing that pretermits a trial court from relying on a prior confession in determining the
category of felony involved or in assessing punishment. Finally, we note that the
punishment levied (i.e. four years imprisonment and an $800 fine) was well within the range
allowed when one (like appellant) commits a felony of the third degree for possessing more
than one but less than four grams of a controlled substance. See Tex. Health & Safety
Code Ann. §481.115(c) (indicating that such an offense is a felony of the third degree);
Tex. Penal Code Ann. §12.34 (specifying the range of punishment for a felony of the third
degree to be imprisonment up to ten years and a fine up to $10,000).
Accordingly, we 1) overrule issues one, two, five and six, 2) sustain issues three and
four, 3) modify the trial court's judgment to redact the statements that appellant accepted
the sentence and wished not to appeal, and 4) affirm the judgment as modified.
Brian Quinn
Chief Justice
Do not publish. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1337493/ | 212 Ga. 444 (1956)
93 S.E.2d 578
McCORMICK
v.
DENNY et al.
19299.
Supreme Court of Georgia.
Argued May 16, 1956.
Decided June 11, 1956.
Rehearing Denied June 26, 1956.
Ernest Bostick, Joseph B. McConnell, Chester E. Wallace, for plaintiff in error.
Spalding, Sibley, Troutman, Meadow & Smith, Richard A. Denny, Jr., James M. Sibley, contra.
CANDLER, Justice.
While residents of Virginia and during 1920. R. S. McCormick, Sr., and Dora McCormick were married. They separated, were divorced, and married again in 1942. During the latter part of December, 1945, or the first part of January, 1946, they separated again. She then filed another suit for divorce against him in Virginia, but it was later dismissed for want of prosecution. From the date of their last separation until Mr. McCormick came to Fulton County, Georgia, during October, 1946, his whereabouts and the place of his legal residence were unknown. He and Sophie Rhoden ceremoniously married in Fulton County, Georgia, on February 12, 1947. From the date of their marriage, except for a period of seven months residence in Texas, they lived together as man and wife in Fulton County until he died on September S, 1954. On October 7, 1954, Sophie Rhoden McCormick, alleging herself to be the widow of R. S. McCormick, Sr., filed an application in the Fulton County Court of Ordinary for permanent letters of administration on his estate. Dora McCormick filed a caveat to her application on the ground that the applicant was not the lawful widow of the deceased since the last marriage between the caveatrix and him had never been dissolved by divorce or otherwise. Her two children joined with her in filing the caveat. Their caveat was sustained in the court of ordinary, and Richard A. Denny, Jr., was appointed administrator after being selected by Dora McCormick and one of her children as a suitable person for such appointment. In due time, the case was appealed to the Superior Court of Fulton County. There a verdict against the applicant was rendered. On the usual general grounds, the applicant moved for a new trial, and later amended her motion by adding special grounds. Her amended motion *445 was granted by the trial judge and the losing parties excepted to that judgment and sued out a writ of error to the Court of Appeals. That Court reversed the judgment granting a new trial. McCormick v. McCormick, 93 Ga. App. 419 (91 S. E. 2d 859). On application therefor, this court granted the writ of certiorari to review the judgment rendered by the Court of Appeals. Held:
1. "The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge." Code § 6-1608; Sparks v. Noyes, 64 Ga. 437.
2. Where one who has been previously married by regular ceremony marries another and they live together as man and wife, there is a presumption that they had capacity to so contract; and this presumption prevails until the party attacking the subsequent marriage disproves every reasonable possibility of its validity by clear, distinct, positive, and satisfactory proof. Nash v. Nash, 198 Ga. 527 (32 S. E. 2d 379); Reed v. Reed, 202 Ga. 508 (43 S. E. 2d 539); Longstreet v. Longstreet, 205 Ga. 255 (53 S. E. 2d 480); Azar v. Thomas, 206 Ga. 588 (57 S. E. 2d 821); Woodum v. American Mutual Liability Ins. Co., 212 Ga. 386 (93 S. E. 2d 12), and citations.
3. On the trial of this case, it was stipulated that the whereabouts and legal residence of the deceased were unknown from about January 1, 1946, until the middle of October of the same year; that no divorce was granted between the deceased and Dora McCormick during that time in Rockbridge, Virginia, or in Newport News, Virginia; and that he did not obtain a divorce in Fort Worth, Tarrence County, Texas, where he and his second wife resided for about seven months after their marriage on February 12, 1947. Dora McCormick testified that she had not obtained a divorce from the deceased since their second marriage, and Richard A. Denny, Jr., testified that he had examined the records of the Superior Court of Fulton County, Georgia, and that no divorce between the deceased and his first wife had been granted in that court. Respecting the asserted invalidity of the deceased's second marriage, no other proof is before this court. As previously pointed out, the burden was on the parties attacking the validity of the second marriage to show its invalidity by clear, distinct, positive, and satisfactory proof, and they could carry this burden and overcome the prima facie validity of the second marriage only by proving that there was no jurisdiction in which the deceased could have obtained a valid divorce from his first wife during the ten months of his unaccounted-for whereabouts and legal residence, or if there was such a jurisdiction, by proving that he did not in fact obtain a divorce there during such period. This burden was not carried by the attacking parties by proof sufficient to show that it was reasonably impossible for the deceased to have obtained a valid divorce from his first wife in some jurisdiction authorized to grant divorces during the ten months of his unaccounted-for whereabouts and legal residence; hence, from the evidence before us, a verdict for the applicant was demanded.
*446 4. Since a verdict for the applicant was demanded by the evidence, the trial judge properly granted a new trial and the Court of Appeals erred in reversing his judgment.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338800/ | 204 Ga. App. 378 (1992)
419 S.E.2d 127
KAPLAN et al.
v.
BLANK et al.
A92A0178.
Court of Appeals of Georgia.
Decided May 19, 1992.
Reconsideration Denied June 1, 1992.
Jordan & Bodner, Leigh R. Bodner, for appellants.
Alston & Bird, Bernard Taylor, Harold W. Jordan II, for appellees.
CARLEY, Presiding Judge.
Prior to the delivery of her child, appellant-plaintiff Mrs. Susan Kaplan signed a written consent to the performance by appellee-defendant Dr. Stephen Blank of a cesarean section and a possible hysterectomy. Immediately following the delivery, appellee determined that a hysterectomy would not be necessary. However, appellee did perform a bilateral tubal ligation after obtaining only oral consent thereto. Subsequently, appellant and her husband initiated the instant tort action against appellee and his professional corporation, basing their claim upon the lack of any written consent to the performance of the tubal ligation. After discovery, appellees' liability. Although the trial court denied the motion, it did certify its order for immediate review. Pursuant to this court's grant of appellants' motion for an interlocutory appeal, they bring the instant appeal from the denial of their motion.
1. "A cause of action for battery exists when ... treatment is performed [by a physician] without the consent of, or after withdrawal of consent by, the patient. [Cits.]" Joiner v. Lee, 197 Ga. App. 754, 756 (1) (399 SE2d 516) (1990). Under the general provisions of the Georgia Medical Consent Law, OCGA § 31-9-1 et seq., a patient's consent to surgical or medical treatment need not be obtained in writing. OCGA § 31-9-2 (a); Spikes v. Heath, 175 Ga. App. 187, 188 (2) (332 SE2d 889) (1985). However, the Georgia Medical Consent Law "specifically excludes sterilization procedures, [which] must be governed by the `existing law independently of the terms and provisions of [OCGA 31-9-1 et seq.]' [Cit.] The `existing law' is found in the language of the Voluntary Sterilization Act[, OCGA § 31-20-1 et seq.]...." Robinson v. Parrish, 251 Ga. 496, 497 (306 SE2d 922) (1983).
*379 Under the Voluntary Sterilization Act, "[i]t shall be lawful for any physician to perform a sterilization procedure upon a person 18 years of age or over, ... Provided that a request in writing is made by such person...." (Emphasis supplied.) OCGA § 31-20-2. "When an operation shall have been performed in compliance with [the Voluntary Sterilization Act], no physician... shall be liable civilly or criminally as a result of such operation ... , except in the case of negligence in the performance of such operation." (Emphasis supplied.) OCGA § 31-20-5. When, however, a sterilization procedure has not been performed in compliance with the consent requirements of the Voluntary Sterilization Act, the procedure was not otherwise lawfully performed and a physician may be held liable for the commission of a battery. Gowen v. Carpenter, 189 Ga. App. 477 (1) (376 SE2d 384) (1988); Gowen v. Cady, 189 Ga. App. 473 (2, 3) (376 SE2d 390) (1988).
"`Sterilization procedure' means any procedure which is designed or intended to prevent conception and which is not designed to unsex the patient by removing the ovaries or testicles." OCGA § 31-20-1 (3). A tubal ligation obviously constitutes such a "sterilization procedure." However, appellees did not obtain any written consent prior to the performance of that procedure.
Relying upon OCGA § 31-20-5, appellees urge that they nevertheless incur no liability for the failure to obtain written consent. That statute provides: "Nothing in [the Voluntary Sterilization Act] shall be construed so as to require compliance therewith where medical or surgical treatment for sound therapeutic purposes ... is required of any person in this state and where such treatment, at the same time that it serves such purposes, may involve the nullification or destruction of reproductive functions." (Emphasis supplied.) This statute obviously contemplates the case wherein the ultimate loss of reproductive functions is merely incidental to a course of treatment which is otherwise beneficial to the patient's over-all general non-reproductive health. It is undisputed that the only purpose served by the performance of the tubal ligation in the instant case was to prevent a future pregnancy and that it served no sound therapeutic purpose which was of any immediate benefit to appellant Mrs. Kaplan's non-reproductive health. The purpose of every sterilization procedure is the prevention of a future pregnancy and to hold that such a purpose, standing alone, constitutes a "sound therapeutic purpose" within the meaning of OCGA § 31-20-5 would effectively negate the Voluntary Sterilization Act. Even if a pregnancy might be detrimental to the patient's general health, a future pregnancy can certainly be avoided by means less extreme than undergoing a sterilization procedure. Accordingly, mere avoidance of a future pregnancy is no viable basis for obviating the requirement that the physician obtain the patient's written consent to performance of a sterilization procedure and give *380 "a full and reasonable medical explanation ... as to the meaning and consequence of such operation." OCGA § 31-20-2.
It is undisputed that appellees performed a sterilization procedure without obtaining the written consent mandated by the Voluntary Sterilization Act. Accordingly, the procedure was performed without the requisite consent necessary to insulate appellee from liability for the commission of a battery. It follows that the trial court erred in denying appellants' motion for partial summary judgment as to appellees' liability for the battery that was committed.
2. The trial court did, however, correctly deny appellants' motion for partial summary judgment as to appellees' liability under a professional negligence theory. There appears to be no contention that appellees were negligent in the treatment that was provided. The only contention is that appellees performed a sterilization procedure to which the requisite consent was not given. Oral consent to a sterilization procedure is no consent under the Voluntary Sterilization Act. "Although [this] suit is against a physician and [his professional corporation] for conduct within the scope of the relationship of a physician to his patient, [it appears that the] determination [of such suit] depends, not upon the principles applicable to actions for negligence or malpractice, but upon the rules relating to a suit for damages growing out of a trespass alleged to have been committed upon the person of [appellant Mrs. Kaplan]." Mims v. Boland, 110 Ga. App. 477, 481 (la) (138 SE2d 902) (1964).
Judgment affirmed in part and reversed in part. Pope and Johnson, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338807/ | 204 Ga. App. 346 (1992)
419 S.E.2d 342
BARTON
v.
MARUBENI AMERICA CORPORATION.
A92A0398.
Court of Appeals of Georgia.
Decided May 27, 1992.
Chestnut & Livingston, Tom Pye, for appellant.
Troutman, Sanders, Lockerman & Ashmore, William T. Plybon, Jule J. Kreyling, for appellee.
POPE, Judge.
Plaintiff Marubeni America Corporation filed an action against defendant Walter F. Barton to collect payment on an overdue real estate note. The note, dated December 23, 1986, was in the amount of over $2.3 million with a maturity date of November 22, 1989. Defendant answered and admitted that the note remained unpaid but denied the note was in default. Defendant raised several affirmative defenses, including estoppel, failure of consideration, waiver, usury, and the claim that plaintiff was not entitled to recover on the grounds of fraudulent inducement, violation of fiduciary duty and because plaintiff exercised dominion and control over the property which secured the note. The trial court granted plaintiff's motion for summary judgment and defendant appeals.
*347 Defendant argues plaintiff is not entitled to summary judgment because it did not pierce or even address all of defendant's affirmative defenses and, therefore, issues remain for jury determination. Our review of the record reveals that each and every defense was refuted by the evidence. We agree with the trial court that summary judgment is appropriate in this case because plaintiff showed the "evidence does not create a triable issue as to each essential element of the case." Lau's Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).
The record shows the loan was made to defendant and he used the money to purchase the property secured by the note. Thus, no issue exists as to defendant's claim of failure of consideration. The record contains no evidence that plaintiff waived its right to collect the sum due pursuant to the note and in fact indicates the plaintiff pursued collection on the note before suit was filed. Defendant may not prevail on his claim of usury because the amount of the note is outside the provisions of Georgia's usury statute. See OCGA § 7-4-2 (a) (1) (B). Defendant's claim that plaintiff is barred from recovering because plaintiff has exercised dominion or control of the secured property is belied by defendant's own testimony that the property is titled in his name and that he has continued to market the property, though to no avail.
Defendant also claims plaintiff is estopped from enforcing the maturity date of the note and is precluded from recovering because he was fraudulently induced into believing that the maturity date would not be enforced if the property had not been sold by that date. At his deposition, however, defendant could not identify the person who made such representations to him, merely saying that the agreement about the maturity date was understood by all representatives of the plaintiff. This testimony is insufficient to modify the clear and unambiguous terms of the written note. OCGA § 24-6-2 permits parol evidence of collateral undertakings between the parties only when the writing does not purport to contain all the stipulations of the contract and only when such evidence is not inconsistent with the writing. In this case, defendant's testimony that the maturity date was waived by parol agreement is directly inconsistent with the certain and unambiguous maturity date stipulated in the written note. Moreover, the general rule prohibiting parol evidence may not be avoided on the theory of a confidential or fiduciary relationship between the parties. Richards v. First Union Nat. Bank, 199 Ga. App. 636 (405 SE2d 705) (1991).
Defendant's remaining claim is based on his theory that the relationship between the parties is not that of debtor/creditor but partners in the venture to purchase the property which secures the note and resell it for a profit. This theory is based on the fact that, in addition to interest of a stated amount, the note granted plaintiff the *348 right to share in any profits which might be realized upon sale of the property. The terms of contract granting a party the right to profits is not evidence, however, that a partnership, as opposed to a debtor/ creditor relationship, existed between the parties. See OCGA § 14-8-7 (4) (E).
Because the record contains evidence refuting each and every theory of defense raised by the defendant and contains unrefuted evidence in support of plaintiff's claim, the trial court did not err in granting summary judgment to plaintiff.
Judgment affirmed. Carley, P. J., and Johnson, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2212573/ | 172 Cal.App.2d 345 (1959)
THE PEOPLE, Respondent,
v.
ARTHUR LEE WILLIAMS, Appellant.
Crim. No. 6407.
California Court of Appeals. Second Dist., Div. Two.
July 27, 1959.
Rayfield Lundy for Appellant.
Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Robert M. Sweet, Deputy Attorney General, for Respondent.
ASHBURN, J.
Defendant was convicted of two charges of selling marijuana and one charge of possession of heroin. He has been represented by counsel at times, then in propria persona and finally by counsel.
He claims unlawful search and seizure, refusal to disclose the name of an informer, insufficiency of the evidence to support the convictions, perjured testimony on the part of Deputy Sheriff Brown, and inherent improbability therein. None of these contentions has substantial support in the record.
Count I of the information charges sale of marijuana on September 10, 1957. Deputy Sheriff Brown on that evening met defendant on the street, inquired if he had seen one "C.W." Defendant said he had not but he could help out because he had put "C.W." in business. He took Brown to his automobile, unlocked it and showed him a quantity of marijuana. Brown gave him five dollars and later defendant delivered a newspaper package of that plant to Brown. It became People's Exhibit 3.
Count II charges sale of marijuana on September 19, 1957. Deputy Brown, in the afternoon of that day, waved at defendant as the latter drove by in his car and defendant pulled over to join him. The officer talked about buying some marijuana and was told he could have it right then if he had the money, that it would be eleven dollars for a can of it. They then drove into the driveway of defendant's home, 1514 East 110th Street. Defendant went to his upstairs apartment and *347 soon returned to the car and delivered to Brown two newspaper packages of marijuana for which he was paid eleven dollars. This marijuana became People's Exhibit 4.
Count III alleges possession of heroin on October 11, 1957. On that evening, acting upon information furnished by a reliable informant to the effect that defendant was dealing in heroin and had some in his possession at 1514 East 110th Street, Officers Stephenson, King and Caskey parked their automobile nearby and watched suspicious actions of the occupants of three cars which drove up and soon left. Then Stephenson and King went to defendant's upstairs apartment, looked through a peephole in the door, knocked, a woman opened the door, they identified themselves and entered. Officer King found defendant in a bedroom where he was seated with a hypodermic in his hand, withdrawing it from a glass of water. On the table were three cellophane packages containing 108 capsules of heroin, a cigarette package containing 8 bindles and 9 capsules of heroin. (They became People's Exhibit 1.) Defendant was arrested and before leaving his home said he thought there were 120 capsules, as he had generally gotten that many out of a half ounce, and that was what he had bought that morning; that he had gone to a peddler to buy it and had just finished capping it. The informant was not present when any of these things occurred.
[1] Re alleged unlawful search and seizure. At the preliminary hearing the marijuana and the heroin were received in evidence without objection and it was stipulated at the trial that they be received in evidence bearing the same numbers. This stipulation precluded any subsequent complaint about these exhibits. (People v. Rollins, 161 Cal.App.2d 560, 565 [326 P.2d 938].) [2] In the absence of such a stipulation it would be too late now to raise the claim of unlawful search and seizure for failure to object to the evidence at the trial precludes advancing it on appeal. (People v. Richardson, 51 Cal.2d 445, 447 [334 P.2d 573].) No motion to suppress the evidence was made, as claimed by appellant.
[3] Actually, it does not appear that the officers did not have a search warrant, and it must be presumed that the arrest of defendant and search of his apartment were lawful. (People v. Citrino, 46 Cal.2d 284, 287 [294 P.2d 32]; People v. Kelsey, 140 Cal.App.2d 722, 723-724 [295 P.2d 462].)
[4] The claim that there was wrongful refusal to require the officer to disclose the name of the confidential informer *348 fails for want of support in the record. No such demand or request was made. No objection was interposed to the officer's testimony concerning what he learned from the informant and no motion to strike was made. (Priestley v. Superior Court, 50 Cal.2d 812, 819 [330 P.2d 39]; Coy v. Superior Court, 51 Cal.2d 471, 473 [334 P.2d 569].)
The sufficiency of the evidence is manifest. True, defendant denied everything but his evidence was rejected by the court and not without good reason.
[5] The claim of perjury in the testimony of Officer Brown calls on us to weigh the evidence, a thing which we cannot do. (People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778].) Likewise the assertion of inherent improbability in Brown's testimony finds no support in the transcript. (People v. Huston, 21 Cal.2d 690, 693 [134 P.2d 758]; People v. Baserto, 162 Cal.App.2d 123, 125 [327 P.2d 558].)
There is no semblance of merit in this appeal. It appears that the judgment herein was rendered on July 3, 1958, and on July 9th the trial judge upon defendant's motion granted a stay of execution pending appeal. This case was on our calendar of June 18, 1959. Presumably appellant has done almost a year of "dead" time in jail. This is not an unusual situation in a propria persona appeal. [6] If the defendant is indigent the appellate court, upon application for appointment of an attorney for him, will make an independent examination of the record and will make such appointment unless it finds that it would not be of advantage to the defendant or helpful to the court to have counsel appointed (People v. Hyde, 51 Cal.2d 152, 154 [331 P.2d 42]). Denial of such an application should be sufficient evidence to the defendant that his appeal is without merit and that he should begin to serve his sentence forthwith. It is unfortunate that such appellants, when having no substantial grounds for appeal, are not given advice as to the futility of appeal and the folly of a stay of execution during the progress of one.
The judgment and order denying a new trial are affirmed.
Fox, P. J., and Herndon, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2212574/ | 650 N.E.2d 685 (1995)
Calvin TYNES, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 49S00-9402-CR-00141.
Supreme Court of Indiana.
May 30, 1995.
*686 Howard Howe, Indianapolis, for appellant.
Pamela Carter, Atty. Gen., Suzann Weber Lupton, Deputy Atty. Gen., Indianapolis, for appellee.
DICKSON, Justice.
Defendant Calvin Tynes appeals his conviction of murder and presents two issues: (1) sufficiency of the evidence and (2) admissibility of unrelated weapon exhibits.
The defendant first contends that the evidence presented at trial is insufficient to prove the elements of the crime of murder beyond a reasonable doubt. He alleges inconsistencies both among prosecution witness Jennifer Watkins's various statements and between her statements and the physical evidence, and he emphasizes a statement he made to the police soon after the incident.
An appellate claim of insufficient evidence will prevail if, considering the probative evidence and reasonable inferences which support the judgment, and without weighing evidence or assessing witness credibility, we conclude that no reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Case v. State (1984), Ind., 458 N.E.2d 223, 226; Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, (1980), 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. Therefore, if a reasonable trier of fact could have found beyond a reasonable doubt that the defendant knowingly or intentionally killed the decedent, we must affirm the conviction. See Ind. Code. § 35-42-1-1.
The evidence favorable to the judgment shows that the decedent, Anthony Jones, and his girlfriend, Watkins, were walking down a street towards his grandmother's home in Indianapolis when they came upon a parked pickup truck containing the defendant along with three other people, with a fifth person standing nearby. At this point, someone in the group of people in and around the pickup truck although not the defendant asked if the decedent was Tony Jones and added, "I know what you did to my cousin." Next, Watkins saw the defendant, who was in the driver's seat of the pickup, lean down and pick up a shotgun. The decedent began to run as the defendant fired at him. He was struck by a number of shotgun blasts, which caused his death soon thereafter.
The defendant notes that the evidence from the crime scene which was adduced at trial demonstrates the presence of a second shooter. He explains that two different kinds of shotgun pellets were found in the decedent's body, and two different types of shell casings were found strewn about the crime scene. The wound which the pathologist stated was most likely fatal was inflicted by lead shot, and the gun which the defendant allegedly used fired copper shot. These facts, the defendant contends, show that a second, unidentified shooter actually committed the killing. The defendant, for the most part, supports his assertions with nothing more than his own version of the events of the night in question, see Brief of Appellant at 9-12, and urges us to reweigh the evidence on this issue and judge the credibility of the testimony.
The defendant notes inconsistencies in Watkins's testimony. The jury was free to decide that the witness was credible in spite of minor discrepancies between her deposition testimony and her testimony at trial on issues such as the color of the defendant's shirt and how close the defendant came to the victim. We note, as could have the jury, that it was 10:30 or 11:00 p.m. and dark at the time these events occurred. This fact could have been factored into the jury's assessment of credibility and could have led to their overlooking small inconsistencies in her testimony.
There is sufficient evidence from which a reasonable jury could conclude beyond *687 a reasonable doubt that the defendant contributed to the victim's death. Cf. Bivins v. State (1970), 254 Ind. 184, 188-89, 258 N.E.2d 644, 646 (holding that defendant is responsible for decedent's death if the injury which he inflicts contributes to death, even if other causes also contributed). Two of the weapons used in the murder were found in the truck that the defendant was driving when he was apprehended, and he had admittedly fired one of the guns at the victim. Record at 124, 178, 205 (defendant's statement 15, 20), 367. Furthermore, the pathologist testified at trial that, although the most serious wound was to the femoral artery, the combination of the wounds killed the decedent. Record at 243-44. The pathologist continued that the decedent could have died even absent the wound to his femoral artery. Record at 244. It is enough if the wound contributed to death; it need not have been fatal standing alone. Bivins, 254 Ind. at 188-89, 258 N.E.2d at 646. Furthermore, had the defendant, arguendo, not fired the killing shot, he would still be guilty of murder under an accomplice liability theory. An accomplice who acts in concert with another who actually committed the direct acts which constitute the elements of the crime is equally as liable as a principal for all acts which are a natural and probable consequence of the plan. See Ind. Code § 35-41-2-4; Moredock v. State (1987), 514 N.E.2d 1247, 1249. It is not necessary for the State to show that a defendant was a party to a preconceived scheme; it must merely demonstrate concerted action or participation in an illegal act. Bigbee v. State (1977), 173 Ind. App. 462, 471, 364 N.E.2d 149, 155. Moreover, in the present case it seems clear that the defendant and his compatriots had a preconceived scheme revenge upon the man who they believed had stolen a truck from their friend two weeks before and a second truck on that night. Record at 205 (defendant's statement 5-10, 16). Once the alleged thief the victim had been located, the defendant, by his own admission, fired a shotgun at him. We conclude that the evidence was sufficient for a reasonable jury to have found the defendant guilty of murder beyond a reasonable doubt.
The defendant contends, second, that the trial court erred in admitting into evidence two weapons and their accompanying ammunition, all found in the truck the defendant had been driving at the time of his arrest. The defendant argues that these two weapons an assault rifle and pistol were irrelevant and therefore inadmissible. Only shotguns were used at the scene, and the rifle and pistol not having been connected to the crime are highly prejudicial. The State counters that the evidence was properly admitted because it was in the get-away vehicle at the time the defendant was apprehended and because the trial court has wide latitude in determining the admissibility of evidence.
A trial court decision regarding the admission of evidence will be accorded a great deal of deference on appeal. See Greene v. State (1987), Ind., 515 N.E.2d 1376, 1380. In determining whether a piece of evidence is relevant and admissible, we look to whether the evidence tends to prove or disprove a material fact in the case or sheds any light on the guilt or innocence of the accused.[1]Perigo v. State (1989), Ind., 541 N.E.2d 936, 939. We conclude that it was error to admit the unrelated weapon evidence. It did not tend to prove or disprove a material fact or shed any light on whether the defendant was guilty of murder. The weapons were not used in the charged crime, nor were they helpful to "complete the picture" of the crime. However, we find that this error was harmless under the circumstances. The presence of these other weapons had been referred to several times throughout the trial without objection. Officer Meyers, who was one of the initial officers on the scene, testified that "there were a few weapons in the vehicle. Shotguns and some type of automatic pistol with a big banana clip on it and a semi-automatic handgun." Record at 178. In the defendant's own taped statement, which was admitted at trial, he extensively described the semi-automatic *688 rifle along with the two shotguns; he even explained how many rounds of ammunition were in the rifle. Record at 205 (defendant's statement at 11, 13-16, 23). It is harmless error to admit evidence which is merely cumulative. Atkinson v. State (1991), Ind., 581 N.E.2d 1247, 1249; Shumaker v. State (1988), Ind., 523 N.E.2d 1381, 1382; Campbell v. State (1986), Ind., 500 N.E.2d 174, 181. We conclude that any error in admitting the rifle and handgun was harmless.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DeBRULER, SULLIVAN and SELBY, JJ., concur.
NOTES
[1] This case was tried prior to the enactment of the Indiana Rules of Evidence; therefore, it has been decided under evidence law as it then existed. We note, however, that Indiana Rules of Evidence 401 and 402 would now govern admissibility in situations such as this. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1914760/ | 419 So. 2d 632 (1982)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner,
v.
Floyd Michael KILBREATH, Respondent.
No. 61133.
Supreme Court of Florida.
September 2, 1982.
*633 Thomas G. Kane of Driscoll, Langston & Kane, Orlando, for petitioner.
William H. Roundtree, Cocoa, for respondent.
EHRLICH, Justice.
We have for review the decision of the District Court of Appeal, Fifth District, in Kilbreath v. State Farm Mutual Automobile Insurance Co., 401 So. 2d 846 (Fla. 5th DCA 1981), which expressly and directly conflicts with Mendlein v. United States Fidelity & Guaranty Co., 277 So. 2d 538 (Fla. 3d DCA 1973). We have jurisdiction.[1]
The determinative issue in Kilbreath is whether, in an action under an uninsured motorist insurance policy, the statute of limitations begins to run as of the date of the accident. We hold that it does.
The pertinent facts may be stated briefly. Kilbreath had automobile insurance coverage under four separate policies issued to him by State Farm. On June 11, 1972, Kilbreath was injured in a motor vehicle accident. He requested arbitration of his claim on April 26, 1976, which request was denied on May 19, 1976. On May 16, 1980, almost eight years after the accident, Kilbreath filed suit against State Farm seeking underinsured motorist benefits under the uninsured motorist coverage. The trial court dismissed the action with prejudice reciting in the order of dismissal that the claim was barred by the statute of limitations.[2] The Fifth District Court of Appeal reversed, stating that arbitration or its waiver or denial by the company is a condition precedent to an action on the policy and that the statute of limitations did not begin to run until all conditions precedent to recovery under the contract had occurred. It held that the statute of limitations did not begin to run until arbitration had occurred or had been waived or denied by the insurance company. This petition followed.
The cause of action for an uninsured/underinsured motorist claim arises on the date of the accident with an uninsured/underinsured motorist since the right of action stems from the plaintiff's right of action against the tortfeasor. The statute of limitations thus begins to run on the date of the accident rather than on the date of compliance with the conditions precedent contained in the insuring agreement. Mendlein; Bocek v. Inter-Insurance Exchange of Chicago Motor Club, 175 Ind. App. 69, 369 N.E.2d 1093 (1977).
Kilbreath's policy of uninsured motorist insurance contains the following language:
To pay all sums which the insured or his legal representative shall be legally entitled *634 to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
The policy does not preclude the insured from maintaining an action at law against the tortfeasor. That cause of action against the third party tortfeasor clearly arises on the date of the accident. If the insured elects to proceed under his uninsured/underinsured motorist coverage, his first remedy is by the agreement of the parties. If the parties are unable to agree, his next remedy is by arbitration. If the insurer waives arbitration or refuses to arbitrate, the insured may then maintain an action at law against the insurer. The policy also provides that no action shall lie against the insurer unless as a condition precedent thereto there shall have been full compliance with all terms of the policy. An effort to agree amicably on the issue of entitlement and amount of damages, and failing that, arbitration, are both conditions precedent to an action against the insurer, but neither has any effect on when the cause of action arises. These are remedies provided by the insurance policy which the insured must exhaust before he can sue the insurer, but the statute of limitations is not tolled during the running of these times.
The uninsured motorist statute gives the insured the same cause of action against the insurer that he has against the uninsured/underinsured third party tortfeasor for damages for bodily injury. Dewberry v. Auto-Owners Insurance Co., 363 So. 2d 1077 (Fla. 1978). It provides a new procedure whereby the insured may recover his loss against his own insurer. The accrual of the action occurs at the time of the accident with the uninsured motorist. As pointed out by Judge Sharp in her dissent in the opinion below:
In an action against an insurance company for "underinsured" or "uninsured" motorist coverage the right of action stems from the plaintiff's right of action against the tortfeasor... .
401 So.2d at 847 (Sharp, J., dissenting).
The decision of the district court is quashed, and this cause is remanded with directions to reinstate the order of dismissal.
It is so ordered.
ALDERMAN, C.J., and BOYD, OVERTON and McDONALD, JJ., concur.
ADKINS and SUNDBERG, JJ., dissent.
NOTES
[1] Art. V, § 3(b)(3), Fla. Const.
[2] The trial court held the claim stale under the five year statute of limitations for an action on a contract, section 95.11(2)(b), Florida Statutes (1979). The district court likewise viewed five years as the proper measuring period, albeit running from a different starting point. It is not necessary to the outcome in this case to decide now and thus we reserve the issue of whether the applicable limitations period is the five year contract period or the four year tort period, since in any event the instant lawsuit was filed eight years after the date of the accident. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1914764/ | 419 So. 2d 231 (1982)
STATE of Alabama, DEPARTMENT OF REVENUE
v.
Tharpe FORRESTER, as Receiver for Trustee Life Insurance Company, etc.
In re STATE of Alabama, ex rel. Tharpe FORRESTER, Commissioner of Insurance
v.
TRUSTEE LIFE INSURANCE COMPANY, etc.
Civ. 3159.
Court of Civil Appeals of Alabama.
July 14, 1982.
Rehearing Denied August 25, 1982.
*232 Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr. and Ron Bowden, Asst. Attys. Gen., for appellant.
Bill Bradley of Henslee & Bradley, Gadsden, for appellees.
EDWARD N. SCRUGGS, Retired Circuit Judge.
This is a domestic corporation franchise tax case.
In its final judgment the trial court recited the following findings which actually consist of the stipulation of facts made by the parties:
"1. Trustee Life Insurance Company is a corporation organized and incorporated under laws of the State of Alabama, having been incorporated in Etowah County, Alabama, on June 8, 1962.
"2. In January, 1975, this Receivership proceeding was filed in this Court under the provisions of Chapter 32 of Title 27, Code of Alabama 1975.
"3. By Order dated September 3, 1976, and filed in the Office of the Clerk of the Circuit Court of Etowah County, Alabama, on September 3, 1976, this Court ordered liquidation of Trustee Life Insurance Company under the provisions of Chapter 32 of Title 27, Code of Alabama 1975. That since said Order of liquidation entered on September 3, 1976, the Receiver in this cause has been in the process of liquidating the said Trustee Life Insurance Company under the provisions of Chapter 32 of Title 27, Code of Alabama 1975, and, although the corporate entity named Trustee Life Insurance Company still exists and has not been dissolved, the said corporate entity named Trustee Life Insurance Company has existed only for the purposes of liquidation by the Receiver pursuant to Chapter 32 of Title 27, Code of Alabama 1975.
"4. By Order dated September 3, 1976, this Court fixed January 10, 1977, as the last date upon which claims could be filed in this proceeding by parties claiming indebtedness owed by Trustee Life Insurance Company.
"5. Trustee Life Insurance Company, in Receivership, has paid no domestic corporation franchise tax and permit fee to the State of Alabama for the years 1977, 1978, 1979, 1980 and 1981.
"6. The claim filed by the Department of Revenue of the State of Alabama for domestic corporation franchise tax and permit fee for the years 1977, 1978 and 1979 was filed in this Receivership proceeding in April, 1979. In October, 1981, the Department of Revenue of the State of Alabama filed in this Receivership proceeding an amendment to its claim described in the next preceding sentence, so as to claim domestic corporation franchise tax and permit fee allegedly owed by Trustee Life Insurance Company, in Receivership, for the years 1980 and 1981.
"7. If the Defendant, Trustee Life Insurance Company, legally owes the franchise tax and permit fee for the years 1977, 1978, 1979, 1980 and 1981 as claimed in the Claim, as amended, filed in this proceeding by the State of Alabama, Department of Revenue, said tax and permit fee for said years would be owed in the amounts stated in said Claim, as amended, filed by the Department of Revenue of the State of Alabama.
"8. The franchise tax on an Alabama domestic corporation is based upon the amount of subscribed and issued capital *233 stock of the corporation. The total par value of subscribed shares of stock of Trustee Life Insurance Company outstanding during the period 1977 through 1981 is $524,762.00. The 1979 franchise tax return of Trustee Life Insurance Company shows a total par value of subscribed shares of Trustee Life Insurance Company to be $524,762.00, which represents a total number of shares subscribed of 524,762 shares with a par value of $1.00 per share."
The trial court determined that the receiver of Trustee Life Insurance Company (Trustee Life) did not owe the domestic corporation franchise taxes for the five years in dispute. The circuit court stated that the rights and liabilities of Trustee Life and of its creditors, policyholders, stockholders, members, subscribers and all other interested persons were fixed as of September 3, 1976, the date of liquidation judgment. Such finding was based upon the provisions of § 27-32-26, Code 1975. The State of Alabama Department of Revenue (department) has appealed from the denial of their claim for such taxes.
The franchise tax on domestic corporations is based upon the amount of capital stock of the corporation and not upon the value of the corporate property. Article XII, § 229, Constitution of Alabama (1901); §§ 40-14-40 and -41.1, Code 1975. Alabama's franchise tax upon Alabama corporations "is imposed upon corporate existence, not corporate activity or exerted corporate function." State v. Bradley, 207 Ala. 677, 93 So. 595 (1922). In that case it was determined that the appointment of a receiver did not work a dissolution of the corporation and, although under receivership, the franchise tax was collectible.
The legislature, by means of § 40-14-56, Code 1975, has specifically provided as to franchise taxes as to corporations in receivership as follows:
"Whenever a corporation, either domestic or foreign, is in receivership or trusteeship, the provisions of this chapter shall apply to receiver or trustee thereof, and such receiver or trustee shall be liable for franchise taxes to the same extent as the corporation would be if there were no receivership or trusteeship. Such receiver or trustee shall make all reports herein required and shall be subject to all penalties as would be the corporation."
The taxes here in controversy arose after the September 3, 1976 judgment ordering the liquidation of Trustee Life. The specific language of § 40-14-56 as to the liability of a corporate receiver for franchise taxes controls over the statutory provisions of § 27-32-26, which govern receivership debts in general.
Since corporate existence activates the imposition of franchise taxes upon a domestic corporation, the tax continues for as long as the corporation exists under our present laws. Trustee Life, although ailing, remains alive as a corporation. It still exists and is thus liable for the disputed franchise taxes which should have been considered as administrative expenses of the receiver, who should have paid them annually when due under the requirements of § 40-14-56.
The learned trial court erred in denying and disallowing the claim of the department for the franchise taxes for the five years under litigation. We must reverse the judgment appealed from and remand this case to the circuit court for the entry of a judgment consistent herewith.
The foregoing opinion was prepared by retired circuit judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.
REVERSED AND REMANDED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337515/ | 93 Ga. App. 888 (1956)
93 S.E.2d 193
INDEMNITY INSURANCE CO. OF NORTH AMERICA et al.
v.
WESTMORELAND.
36170.
Court of Appeals of Georgia.
Decided May 16, 1956.
*889 Currie & McGhee, for plaintiff in error.
Pittman & Greene, contra.
*890 TOWNSEND, J.
All parties recognize the well-worn rule that the award, if supported by any competent evidence, will not be set aside. It is, however, contended, under the authority of Sisson v. American Mutual Liability Ins. Co., 71 Ga. App. 284 (30 S.E.2d 501), that where an award against the claimant is influenced at least in part, by specific findings of fact not authorized by the evidence, it must be set aside, and that for this reason the judgment of the superior court is correct. We agree with the principle of law, but have difficulty applying it to this case, so far as it affects the finding that the accident did not arise out of and in the course of the employment. There is sufficient competent evidence to authorize a finding by the board that the employee had no authority to use the company truck during his free period for lunch; consequently, the theory would not be tenable that the employee, being in the truck, was constructively "on the premises" of the employer. The fact that he was using a company truck is immaterial, and the situation is the same as though he had walked or ridden in his own car to his home during the half hour given him as free time between noon and 12:30. That he was returning from his home in a direction he would normally take to go to work at noon puts him in the same position as one who departs from his home in the morning and sets out for work. The responsibility of an employer must begin and end somewhere, and this State has never applied "portal to portal" liability to workmen's compensation cases. In Travelers Insurance Co. v. Smith, 91 Ga. App. 305 (85 S.E.2d 484), an effort was made to reconcile "preparation for work" cases with "lunch hour" cases, the former being, in general, more liberal in permitting recovery than the latter. In one of the earliest of these, Jackson v. Lumberman's Mutual Casualty Co., 33 Ga. App. 35 (125 S.E. 515) we find the Industrial Commission "thoroughly committed to the principle that a reasonable time must ensue after an employee reaches an employer's premises, .. . during which time an accident occurring shall be construed as arising out of and in the course of the employment." (Italics ours.) In the Smith case, supra (p. 311), the accident occurred after the premises had been reached by one returning to work at the end of his lunch hour, and this court, upholding the reversal by the superior court of the award denying compensation, stated: "But *891 where he is returning to his employment and is injured at a place and time where it is necessary for him to be in order to get back to his work station at the time set for him to recommence his duties, the situation is exactly the same as though he were arriving in the morning preparatory to undertaking his day's duties." (Italics ours). No doubt this language misled the judge, to whom the case was appealed, but our meaning was that, where one, arriving on the master's premises, at a time and place necessary for him to commence or recommence his duties, or to do things necessary to prepare him to undertake such duties, there is no difference in fact between the employee who has arrived in the morning and one who has arrived after his lunch hour, which was free time spent by him on his own affairs. That this ruling could not be extended so as to reverse the award of the board denying compensation such as here, is amply illustrated by Independence Indemnity Co. v. Sprayberry, 171 Ga. 565 (156 S.E. 230), a "deviation from employment" case wherein the Supreme Court, reversing the Court of Appeals, held that there was sufficient evidence in the record to authorize the judgment of the board denying the claim. The time during which an employee normally journeys from his home to his place of employment, either at morning or noon, is, in the absence of special circumstances his own time. The director here correctly found that the accident did not arise out of and in the course of the employment, and denied compensation on that ground. Accordingly, it is unnecessary to decide whether or not the issue as to dependency was influenced by findings of fact not authorized by the evidence, as contended.
The judge of the superior court erred in reversing the director's award denying compensation.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337510/ | 229 S.C. 466 (1956)
93 S.E.2d 601
C.A. SPELL, Respondent,
v.
WALKER S. TRAXLER, Appellant.
17178
Supreme Court of South Carolina.
July 2, 1956.
*467 P. Kramer, Esq., of Summerville, for Appellant.
Messrs. J.D. Parler and N.H. Hamilton, of St. George, for Respondent.
July 2, 1956.
LEGGE, Justice.
C.A. Spell brought this action against Walker S. Traxler to compel specific performance of his contract to purchase from Spell certain real estate. Traxler appeals from an order overruling his demurrer to the petition.
The petition, omitting the first two paragraphs, which were formal, and omitting detailed description of the real estate in question, was as follows:
"3. That heretofore on the 8th day of December, 1951, the Petitioner was the owner in fee simple of the following tract of land (describing it). The said premises are known as the `Home Place' of the late Charles Spell, and was devised by the said Charles Spell in and by his last will and testament to his wife, Mrs. Anna Prudence Spell, and was thereafter devised by the said Mrs. Anna Prudence Spell in and by her last will and testament to the said C.A. Spell.
"4. That the Petitioner acquired title to the tract above described by the last will and testament of Anna Prudence *468 Spell. Item 3 of said will reads as follows: `In the event that Henry A. Spell should die before his father, C.A. Spell, it is my will that the executors hereinafter named handle this estate to the one in the family that is most worthy and beneficial'. That after the death of Henry A. Spell the executors of the last will and testament of Anna Prudence Spell, by their certain deed dated 17th. day of July, 1948, conveyed to Petitioner the property above described in fee simple, and forever, by said deed being recorded in Book 94, page 33, R.M.C. office for Dorchester County.
"5. That heretofore the petitioner and the respondent entered into a contract for the purchase and sale of the tract of land hereinabove described wherein and whereby the respondent covenanted and agreed to pay unto the petitioner the sum of ten thousand ($10,000.00) dollars as the purchase price of said tract of land, and the petitioner covenanted and agreed to convey unto the respondent by a deed in fee simple to the lands described herein upon the payment of the sum of ten thousand ($10,000.00) dollars as aforesaid.
"6. That the Petitioner, in pursuance of said agreement tendered unto the respondent a deed in fee simple conveying the tract of land described herein, but that the respondent has failed and refused to accept the deed and pay unto the petitioner the sum agreed upon to be paid, to wit: ten thousand ($10,000.00) dollars."
Demurrer was "upon the ground that it appears upon the face of the Petition that the same fails to set forth facts sufficient to constitute a cause of action for the reason that the Petition purports to set forth a cause of action for the specific performance of a contract for the sale of a certain tract of land, and it affirmatively appears from the Petition that petitioners cannot perform the contract on their part for the reason that they do not own a fee simple title to the tract of land in question'".
In the order overruling the demurrer the following allegations of the petition were held sufficient to state a cause of *469 action for specific performance: (1) that petitioner owned the land in fee simple; (2) that it had been conveyed to him by a deed under which he held title in fee simple; (3) that he had entered into a contract to sell it to the respondent; (4) that he had tendered a deed pursuant to the contract; and (5) that respondent had refused to accept the deed. The order made no mention of the portion of the will of Anna Prudence Spell set out in paragraph 4 of the petition.
Appellant states the question on appeal thus: "Did the petition for specific performance show on its face that the proper legal construction of the will of the testatrix conclusively shows that the respondent did not have a fee simple title to the property?"
Entirely apart from the reference to Item 3 of the will of Anna Prudence Spell the allegations of the petition are, as the lower court held, sufficient to state a cause of action. But such reference to the will is, under a fair construction of the petition, inextricably woven into the fabric of the cause of action that the petitioner attempts to set fourth. Indeed, it is apparent from his brief that the conveyance to him by the executors of Anna Prudence Spell derived its efficacy from her will alone, and that it was not the intention of the petition to suggest otherwise.
It is elementary that in passing upon a demurrer the court is strictly limited to consideration of the pleading under attack, all of the factual allegations whereof that are properly pleaded are, for the purpose of such consideration, deemed admitted.
In the transcript of record before us are set out: (1) a stipulation to the effect that the parties admit the alleged agreement between them for the purchase and sale of the property in question; and (2) what purports to be the entire will of Anna Prudence Spell. Neither should have been included in the transcript. The alleged agreement is admitted by the demurrer; and the principle before mentioned precludes our consideration of any part of the will other than that which is set forth in the complaint.
*470 The crux of the problem here lies in the interpretation of the expression in Item 3 of the will, "that the executors hereinafter named handle this estate to the one in the family that is most worthy and beneficial"; and in its consideration the following long-settled principles are applicable:
1. All rules of construction are directed toward the ascertainment of what the testator intended by the language used in his will, and to the effectuation of that intention if it be consistent with law. Rogers v. Rogers, 221 S.C. 360, 70 S.E. (2d) 637.
2. The law abhors intestacy and will indulge every presumption in favor of the validity of the will. Meier v. Meier, 208 S.C. 520, 38 S.E. (2d) 762.
3. The testator's intention need not be declared in express terms if it can be clearly inferred from particular provisions and from the general scope and import of the will. Meier v. Meier, supra.
4. The testator's intention is to be gathered from the whole instrument, its doubtful language being considered in the light of circumstances known to the testator at the time of its execution. Shevlin v. Colony Lutheran Church, 227 S.C. 598, 88 S.E. (2d) 674.
5. If the testator's intention can be clearly perceived, and is not contrary to some positive rule of law, it must prevail even though it involve the rejection or addition of words or a change in their literal meaning. Finlay v. King's Lessee, 3 Pet. 346, 7 L. Ed. 701; Cabeen v. Gordon, 1 Hill Eq. 51, 10 S.C. Eq. 51; Clark v. Clark, 19 S.C. 345; Dillard v. Dillard, 95 S.C. 86, 78 S.E. 1037; Cannon v. Ballenger, 222 S.C. 39, 71 S.E. (2d) 513.
The court below did not undertake to construe the expression "handle this estate to the one in the family most worthy and beneficial"; and we shall not undertake to do so upon consideration of Item 3, which is the only part of the will before us. But it is our opinion that whatever doubt as to the intention of the testatrix may be *471 occasioned by her use of the quoted expression is to be resolved from consideration of the will as a whole in the light of the principles of construction to which we have referred, and that the said expression is not upon its face so devoid of meaning or so impossible of interpretation as to render the complaint demurrable.
Affirmed.
STUKES, C.J., and TAYLOR, OXNER and MOSS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337528/ | 94 Ga. App. 31 (1956)
93 S.E.2d 580
RESERVE LIFE INSURANCE CO.
v.
PEAVY.
36197.
Court of Appeals of Georgia.
Decided May 23, 1956.
*32 Martin, Snow & Grant, for plaintiff in error.
H. T. O'Neal, Jr., Robert E. Steele, Jr., contra.
TOWNSEND, J.
1. Certain of the grounds of demurrer raise the issue as to whether the plaintiff has "made a complete assignment of the cause of action sued upon and of all benefits due to him under the policy" so as to vest the right of recovery thereon solely in the assignee, the Macon Hospital. To decide this question it is necessary to analyze of what this cause of action consists. Code § 3-108 provides as follows: "As a general rule, the action on a contract, whether express or implied, or whether by parol or under seal, or of record, shall be brought in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent." The contract of insurance contemplates that the plaintiff alone is the legal owner thereof, although others than himself are thereby insured, and provides that "every transaction relating to this policy shall be between the company and the insured." The petition alleges that there has been a breach of the contract between plaintiff and defendant. The measure of damages for this breach is alleged as the amounts which defendant by its contract binds itself to pay upon the happening of a certain event an illness within the terms of the policy plus other damages sought to be recovered for bad faith. That which was assigned by the plaintiff to the hospital was the same thing which the defendant agreed, when otherwise liable, and when authorized by the plaintiff, to pay direct to the hospital that is, reimbursement of plaintiff's debt *33 to the hospital to the extent of its liability under the contract. The insurance contract is, so far as appears, still of force and effect. It is still a contract between the plaintiff and the defendant, and it has not been assigned by the plaintiff to anyone. The cause of action, if one exists, is an action for damages under the contract, title to which is in the plaintiff. The proceeds of the policy, which are the equivalent of the measure of damages, have been allocated or assigned to the hospital for the purpose of being applied against the plaintiff's debt to it. In 6 C. J. S. 1143, § 85, it is stated: "An assignment of property carries with it the right to the proceeds thereof, although an assignment of the expected proceeds of property gives no right to the property itself." Here the "property" is the contract of insurance, title to which remains in the plaintiff. The proceeds the plaintiff has set aside for the use of his creditor, the hospital. Accordingly, when under the terms of the policy he authorized the defendant, as he was entitled to do, to pay the proceeds direct to the hospital, the fact that this instrument "assigns" all benefits under the policy does not make it such an assignment of legal title as to authorize the hospital to sue on the policy in its own name, and accordingly such a suit could not be maintained. Wheeler v. Stapleton, 99 Ga. 731 (27 S.E. 724). Nevertheless, the hospital has such a substantial interest in the proceeds as to make it a proper usee for whose benefit the action may be maintained by the person having legal title to the contract. Jones v. Reed, 58 Ga. App. 72 (2a) (197 S.E. 665).
The plaintiff in error cites Sullivan v. Curling, 149 Ga. 96 (99 S.E. 533, 5 A. L. R. 124); Board of Drainage Commissioners of Henry County Drainage District No. 1 v. Morris Construction Co., 32 Ga. App. 300 (122 S.E. 723); Ross v. Glover-Ball Co., 156 Ga. 109 (1) (118 S.E. 691); Virginia-Carolina Chemical Co. v. Rachels, 41 Ga. App. 221 (152 S.E. 308); Norwich Union Fire Ins. Soc. v. Wellhouse, 113 Ga. 970 (2) (39 S.E. 397); King v. Prince, 89 Ga. App. 588 (80 S.E.2d 222) and Browder v. Cox, 83 Ga. App. 738 (64 S.E.2d 460). These cases, individually, need no discussion. All are based on the rule that one who has assigned his right of action to another, or one who himself has no right of action because of the extinguishment of the debt or other cause, may not bring an action as a nominal plaintiff for the *34 use of another. In none of these cases is there a discussion of the right of one who is the legal holder of an instrument to sue for damages or proceeds for the benefit of a usee to whom the latter have been assigned. The demurrers raising this issue were properly overruled.
2. The remaining issue raised by the demurrers is whether the affirmative allegations of the petition bring it within the policy provision extending coverage only to "sickness, the cause of which originates while this policy is in force and more than 15 days after the date hereof." The petition does allege that "on the date said policy was issued and for 15 days thereafter, plaintiff was in good health and free of disease." Unless one allegation is the equivalent of the other, the plaintiff has failed to bring himself within the terms of the policy and cannot recover. Hulsey v. Interstate Life & Accident Ins. Co., 207 Ga. 167, 169 (60 S.E.2d 353); Carpenter v. Life & Casualty Ins. Co., 74 Ga. App. 745 (41 S.E.2d 271); Hurt & Quinn, Inc. v. National Surety Corp., 81 Ga. App. 683 (59 S.E.2d 722). The plaintiff relies upon Georgia Life &c. Ins. Co. v. Gammage, 91 Ga. App. 125 (85 S.E.2d 85), wherein the following is stated at page 129: "Mrs. Gammage testified that, in 1950, her husband was in good health, free of disease, and as well as ever he had been, and was making no complaints to her. If at that time he showed no observable symptoms, the jury were authorized to find, as they did, that the disease resulting in his death originated after the policy was issued, and so was covered." From this it appears that testimony that one is "in good health and free from disease" at a certain time may be construed to mean that the disease had not originated at that time. Since testimony is construed in favor of the verdict, and pleadings are construed against the pleader, this case is not absolutely decisive on the question. Nevertheless, no matter what construction is applied, one cannot be literally "free from disease" if there are incipient in his body the germs or other inherent conditions which will for a certainty incapacity him and which are within themselves the direct and proximate cause of such sickness. When the policy excludes "sickness the cause of which originates" before the issuance of the policy or within a 15-day period thereafter, it can mean only that the cause of the illness originates or begins to establish itself in the body of the insured during that *35 period of time. If the disease is beginning to establish itself, then the plaintiff is not "free of disease" in the literal or absolute sense. We are not here discussing "apparent sound health," which has no place in this issue in its present stage. We merely hold that the allegation is sufficient, and is the equivalent of the policy language itself, so that proof of any facts insufficient to establish that the sickness originated while the policy was in force and more than 15 days from its inception date would also be insufficient to support the allegation that, "on the date said policy was issued and for 15 days thereafter, plaintiff was in good health and free of disease." Conversely, testimony sufficient to establish the one proposition would also establish the other. It follows that the petition was not subject to the grounds of demurrer raising this issue.
The trial court did not err in overruling the general and special demurrers to the petition.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337576/ | 212 Ga. 412 (1956)
93 S.E.2d 354
WILSON
v.
THE STATE.
19333.
Supreme Court of Georgia.
Argued May 14, 1956.
Decided June 12, 1956.
Robt. W. Reynolds, Peter W. Walton, for plaintiff in error.
J. B. Edwards, Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, contra.
CANDLER, Justice.
Alton Wilson, Jr., was indicted in Lowndes County for the murder of A. C. (Dick) Walden, Jr. He has been twice convicted of that offense and on each conviction was sentenced to be electrocuted. His first conviction was reversed by this court because the solicitor-general in his argument to the jury urged them to convict him without recommendation and referred to the legal possibility of his being later paroled or pardoned. Wilson v. State, 212 Ga. 157 (91 S.E.2d 16). To his second conviction he moved for a new trial on the usual general grounds, and amended his motion by adding five special grounds. His amended motion was denied and the exception is to that judgment. Held:
1. The general grounds of the motion for new trial are without merit, since the verdict was amply supported by evidence.
2. Over the defendant's objection that it related to a separate and distinct offense and placed his character in issue when he had not previously elected to do so, Roosevelt Whitfield, a witness for the State, was permitted to testify that the defendant, shortly prior to the time he allegedly killed Walden, but at a different place, pointed a pistol at him. Special ground one of the motion alleges that the admission of Whitfield's testimony was erroneous. This ground is meritorious. The transaction about which the witness was allowed to testify was distinct, independent of, and wholly separate from the one for which the defendant was being tried, and it is well settled by numerous decisions of this court that such evidence is irrelevant and inadmissible. See Bacon v. State, 209 Ga. 261 (71 S.E.2d 615), and the several cases there cited.
3. As a witness for the State, R. J. Dorminy testified that he asked the accused why he shot Dick Walden, and that he replied: "Well, when he turned, the temptation was just too great." Sheriff J. L. Futch, also a witness for the State, testified that the accused on several different occasions admitted to him that he shot the deceased Walden. The defendant timely and in writing requested the judge to give the following charge: "I charge you, gentlemen, that all admissions must be scanned with care." *413 The requested charge was not given, and special ground two alleges that the judge erred in refusing to so instruct the jury. Code § 38-420 declares that all admissions shall be scanned with care. For a conviction in this case, the State relied strongly on the defendant's incriminating admissions which the witnesses Dorminy and Futch testified about, and the judge's failure to give the requested charge was reversible error; and this is especially true since the judge in his general charge omitted to give the jury any instruction as to the weight which should be given to any incriminating admission made by the defendant. See Russ v. Myrick, 154 Ga. 829 (3) (115 S.E. 644).
4. The remaining special grounds of the motion have been carefully examined, and it is sufficient to say that they are without merit.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337575/ | 212 Ga. 543 (1956)
93 S.E.2d 717
HUNTER
v.
OGLETREE et al.
19371.
Supreme Court of Georgia.
Argued June 11, 1956.
Decided July 10, 1956.
Rehearing Denied July 24, 1956.
T. J. Molnar, for plaintiff in error.
Stone & Stone, W. L. Stone, Joe M. Ray, contra.
ALMAND, Justice.
Hugie Ford Hunter filed an equitable petition against certain named heirs of Jennie Hunter and the nominated executor of her purported will, seeking to enforce an alleged agreement between the plaintiff's mother and Jennie Hunter, wherein the latter agreed to adopt the petitioner, then a baby, as her son, and seeking also to enforce an alleged agreement between the plaintiff and Jennie Hunter, by which after the plaintiff became of age Jennie Hunter agreed to leave all of her property by will to him if he would continue to live with and take care of her. The defendants filed a general demurrer to the petition, and subsequently the petitioner amended his petition by adding two counts. Without the defendants having renewed their general demurrer, or demurring to the petition as amended, the court sustained the general demurrer and dismissed the petition *544 as then amended. We reversed this order (Hunter v. Ogletree, 212 Ga. 38, 89 S.E.2d 891), without passing on the merits of the case. On return of the remittitur, the plaintiff amended his petition by adding material and substantial allegations. The defendants then filed their general demurrer, and a special demurrer on the ground that the amended petition sought to recover on two distinct causes of action. These demurrers were sustained, with leave to amend. The petitioner did not amend, but filed his bill of exceptions assigning error on the order sustaining the demurrers.
In all three counts of the petition, the plaintiff set out two separate contracts which he seeks to enforce. First, he alleges that his mother, when he was 11 days old, surrendered his custody and control to Jennie Hunter, under an agreement that the latter would raise him as her child and would adopt him; that he was reared by Jennie Hunter as her child; and second, when he became of age she agreed that, if he would continue to remain with and take care of her, she would will all of her property to him; that he had performed his part of the contract, and that she died without making the promised will. The prayers of all three counts were to enforce these two contracts.
The cause of action as based upon an alleged contract of virtual adoption between the plaintiff's mother and Jennie Hunter is separate and distinct from the cause of action based upon a separate and independent contract between the plaintiff and Jennie Hunter to leave by will all of her property to the plaintiff if he continued to live with her. All three counts were subject to the special demurrer on the ground of multifariousness. Rieves v. Smith, 184 Ga. 657 (192 S.E. 372, 112 A. L. R. 368). The court properly sustained the special ground of the demurrers and dismissed the petition.
There being an affirmance of the judgment of the trial court, no ruling will be made on the motion to dismiss. City of Hawkinsville v. Williams, 185 Ga. 396 (1) (195 S.E. 162).
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338817/ | 308 S.C. 552 (1992)
419 S.E.2d 781
Roy Lee WADE, Petitioner
v.
STATE of South Carolina, Respondent.
23682
Supreme Court of South Carolina.
Submitted June 14, 1991.
Decided July 13, 1992.
Asst. Appellate Defender Robert M. Pachak, of the South Carolina Office of Appellate Defense, Columbia, for petitioner.
Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka and Staff Atty. Lisa G. Jefferson, Columbia, for respondent.
Submitted June 14, 1991.
Decided July 13, 1992.
FINNEY, Justice:
This Court granted certiorari to review the denial of postconviction relief (PCR) to Petitioner Roy Lee Wade on the *553 sole issue of whether or not petitioner entered a guilty plea as a result of coercion. After consideration of the record, briefs filed on behalf of the parties, and the applicable law, we affirm the findings of the PCR court.
On July 19, 1988, the petitioner pled guilty to one count of criminal sexual conduct with a minor in the first degree and one count of criminal sexual conduct with a minor in the second degree involving his step-niece. On July 21, 1988, he was sentenced to imprisonment for thirty years for criminal sexual conduct in the first degree and twenty years, consecutive, for criminal sexual conduct in the second degree.
The petitioner was also charged with criminal sexual conduct with his two daughters and another niece. Petitioner's father and brother were charged on separate indictments with related offenses involving the same minors. Petitioner was represented by counsel at the guilty plea proceedings. Petitioner's counsel assented to the solicitor's statement to the court that plea negotiations resulted in certain charges being dropped and that other criminal sexual conduct charges were dropped due to petitioner's guilty plea.
On October 19, 1989, petitioner filed an application for PCR allegation ineffective assistance of counsel in eight particulars, and that his plea process was defective because the court failed to establish a factual basis for the plea and had failed to inquire into and seek to resolve the conflict between the petitioner's waiver of trial and his claimed innocence.
The petitioner was granted an evidentiary hearing at which he was represented by Virginia Herrick. Testimony was presented by the petitioner; Elmer Hatcher, petitioner's guilty plea counsel; John H. Wade, Sr., petitioner's father; Geraldine Wade, petitioner's mother; and Barbara Wade Carmody, petitioner's sister.
Petitioner's guilty-plea counsel testified that although the petitioner was reluctant to plead guilty, the ultimate decision to enter a guilty plea was made by the petitioner. Counsel also testified the solicitor had indicated to him that the way she intended to treat the female members of the family would depend, to some degree, upon what the male members of the family did since the males were considered the actual perpetrators, which statement he communicated to the petitioner. The petitioner's mother testified that she was never charged *554 with any offense and that she was not told of possible charges against her daughters-in-law. The record reflects that petitioner's wife and sister-in-law each received an eight-year sentence, suspended to five years probation.
The PCR judge dismissed petitioner's application, finding that the petitioner had failed to establish any constitutional violations or deprivations before or during his guilty plea proceeding.
The petition to this Court for a writ of certiorari ensued. We granted certiorari to review petitioner's allegation that his conviction was obtained by a guilty plea which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea. The petitioner alleges his guilty-plea counsel told him that if he did not plead guilty to the charges his mother, wife and sister-in-law would go to jail.
In a PCR proceeding, the burden of proving the allegations in his petition is upon the petitioner. This Court must uphold the findings of the PCR judge if such findings are supported by any evidence. Thrift v. State, 302 S.C. 535, 397 S.E. (2d) 523 (1990).
The record reveals numerous interrelated charges and potential charges against the petitioner and other adult members of his family arising from instances of criminal sexual conduct with several minor family members over an extended period of time. The record reflects affirmatively the petitioner's knowing, intelligent and voluntary entry of his plea of guilty. Moreover, the petitioner entered his guilty plea with an awareness of the plea negotiations concerning the cases involved. See Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed. (2d) 274 (1969); United States v. Marquez, 909 F. (2d) 738 (2nd Cir.1990); LoPiana v. State, 270 S.C. 563, 243, S.E. (2d) 448 (1978).
After conducting an evidentiary hearing the PCR judge found that petitioner's allegation claiming his plea was unlawfully induced was conclusively refuted by the record. The PCR judge observed that the testimony offered in support of petitioner's allegation was unconvincing, without credibility, and untruthful. We conclude that the findings of the PCR judge are supported by evidence in the record, and that the petitioner has failed to prove the allegation that his guilty *555 plea was not knowing, intelligent and voluntary. See Cherry v. State, 300 S.C. 115, 386 S.E. (2d) 624 (1989).
For the foregoing reasons this Court affirms the conclusions and findings of the PCR court.
Affirmed.
HARWELL, Acting C.J., and CHANDLER and TOAL, JJ., concur.
GREGORY, C.J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263765/ | 25 Md. App. 375 (1975)
336 A.2d 129
RONALD ASHTON ERBE
v.
STATE OF MARYLAND.
No. 644, September Term, 1974.
Court of Special Appeals of Maryland.
Decided March 20, 1975.
The cause was argued before ORTH, C.J., and MORTON and GILBERT, JJ.
Kenneth A. Reich, with whom were Robert M. Bell and Piper & Marbury on the brief, for appellant.
*376 Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State's Attorney for Baltimore City and Peter Semel, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
ORTH, C.J., delivered the opinion of the Court.
STATEMENT OF CASE
RONALD ASHTON ERBE, born 23 November 1947, was arrested, apparently on 26 September 1968, for breaking the dwelling of Bruce Reed on 15 August 1968 in the daytime with intent to steal personal property. On 30 September, after a preliminary hearing in the Municipal Court of Baltimore City, he was bound over for action by the Grand Jury, and committed to jail in default of $1000 bail. On 2 October he posted the required bail through an insurance company and was released. He and one Owen R. Peyton were presented on 9 October and indictment 6251Y, charging them jointly with the breaking and related offenses, was filed on 21 October in the Criminal Court of Baltimore. He was arraigned on 31 October in that court,[1] and tried on 25 June 1969. He was convicted at a bench trial of breaking the dwelling with intent to steal (1st count) and grand larceny (3rd count).[2] On 1 July 1974 concurrent sentences of 3 years were imposed under each count. The execution of the sentences was suspended, and he was placed on probation in the care of the Maryland Division of Parole and Probation for 3 years from 1 July 1974, restitution to be made and court costs to be paid through the Probation Department. He noted an appeal on 9 July 1974.
*377 THE FACTS
The posture of the appeal is such that the only facts which are material concern the delay which occurred between the guilt stage and the penalty stage of the proceedings. A transcript of the guilt stage of the proceedings is not included in the record submitted to us. The docket entry under date of 25 June 1969 reads: "Release c/o Attorney Stanley S. Cohen pending Disposition." The next entry is under date of 5 March 1973: "Failed to appear for Disposition. Bench Warrant (Pink) issued." An entry on 19 December 1973 states: "Bench Warrant (Pink) returned. Cepi in Jail." On 16 January 1974 the appearance of Kenneth A. Reich, Esq. and Robert M. Bell, Esq. was entered for Erbe. They moved to dismiss the indictment. There is a transcript of proceedings had on that date. According to the court the motion was made in chambers that morning[3] and sought "dismissal of the sentencing by reason of delay in same." It seemed to the court "that it is necessary that [it] take some testimony in that regard...." The court thought it ought to hear from Mr. Cohen, on the record, "as to just what he did, if anything, to get in touch with his client, who had been released in his custody on June 25, 1969." Mr. Cohen testified and was asked to describe the contact he had with Erbe from the date of conviction to early March 1973. He said he had no contact with his client. He had copies of two letters sent Erbe but that did not mean that only two letters were sent. The Erbe file had been closed and stored in the basement of the attorney's office building. "And I would not have, in January, February, or March of 1973, have pulled the file in order to have sent a letter." The attorney made no telephone calls to Erbe because he was "never able to get a phone number for Mr. Erbe. I was unsuccessful in all my attempts to contact him." Although he had some brief *378 contact with Erbe's father prior to trial, he did not attempt to contact the father in March 1973 because "he was informed prior to the time of trial, by the attorney who originally referred the case to me through his parents, that his parents were no longer going to be responsible for representation and I attempted to strike my appearance."[4] The attorney had an address which Erbe had given him. "I assume it was a good address, although as I said before, I never received any letters back saying that he had moved or that there was a change of address. And I assumed that when I sent the letters, that he received them." The address was 212 South Gilmore Street, Baltimore, Maryland 21223.
It was stipulated that Erbe was living at 212 South Gilmore Street in 1969 at the time of his convictions. He moved from that address to several other addresses in Baltimore City, but left forwarding addresses with the Post Office for each address. The stipulation, in the words of Mr. Reich, continued: "The next address he lived at, after Gilmore, I believe was Arlington Avenue; that was with his mother. Then he went to an address on Sorrell, S-o-r-r-e-l, I believe. I'm not sure of the spelling, Sorrel Road; where he lived with his father. He then went to a Ravenwood Avenue address, a Smallwood address, a McHenry Street address, and finally an address on Relcrest Road... where he did ... leave a forwarding address."
In denying the motion, the court explained how the failure to sentence Erbe had come to light:
"The matter would have rested forever in the indefinite stage of having the defendant released in the custody or his attorney, except that on inquiry by the staff of this Court back in January, 1973, it was discovered that the case had not been closed.
The Criminal Assignment Office and the State's Attorney's Office were contacted as to why the matter had not been set down for disposition. The State's Attorney's Office and the Criminal Assignment Office each stated, in effect, that it was *379 not the responsibility of their office to set the case in for disposition or scheduling for further hearings.
Accordingly, this Court initiated the matter and had a summons sent to the defendant at 212 South Gilmore Street. The case was set in for March 5, 1973. The summons, according to the sheriff's return, had been served at 212 South Gilmore Street.
Mr. Cohen appeared at that hearing on March 5, 1973, and stated substantially what he has stated on the stand today; that he tried to communicate with the defendant, but did not know where he was, and had not heard from him in all that time.
Accordingly, a warrant was issued, and as a result, in late December of 1973, the defendant was placed in custody."
How Erbe was apprehended appeared from the testimony of Herbert S. Wilcox, Operations Director of Baltimore Goodwill Industries, testifying in behalf of Erbe in mitigation of punishment. Erbe was employed by Goodwill as a truck driver from about the middle of January 1973 to the sixth of February 1973. He left to take a job elsewhere at higher pay "we encourage our employees to seek better jobs when they're ready." About a week before Christmas of 1973 he re-applied for his former job and was personally interviewed by Wilcox. "Part of our normal hiring process with a truck driver is that we must get a D.M.V. record and also police clearance... So we gave him the form for police clearance, and asked him to get those accomplished and return the next day." He did not return. Wilcox found out later that "there was an outstanding charge against him." The court noted that in the light of Wilcox's testimony, it was on inquiry of Erbe concerning his record at the Police Department that he was placed in custody.
The court requested a pre-sentence investigation. Pending receipt of the report, Erbe was released in the custody of his *380 attorney, Mr. Reich. The report of the investigation was filed on 15 February 1974. Sentence was imposed on 1 July.[5]
ISSUES FOR DECISION
Erbe argues that the delay between conviction and sentence violated his constitutional rights to a speedy trial and his legal right to be sentenced without unreasonable delay bestowed upon him by Rule 761 a.
Speedy Trial
Under the Sixth Amendment to the Constitution of the United States, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." Under Article 21 of the Maryland Declaration of Rights, "in all criminal prosecutions, every man hath a right ... to a speedy trial by an impartial jury...." The "speedy trial" right under the Maryland Constitution is "coterminous with its Federal counterpart" and any resolution of a claim under the Sixth Amendment will be dispositive of a parallel claim under Article 21. State v. Lawless, 13 Md. App. 220, 225.
It is correct, as we said in Sands v. State, 9 Md. App. 71, 79, quoting 5 Wharton's Criminal Law and Procedure (1957) § 2176, p. 370, that "A criminal case is not complete and the case is not disposed of until sentence has been pronounced." But it does not necessarily follow, as Erbe would have it, that the constitutional guarantee of a speedy trial applies to the penalty stage of the trial. We pointed out in Sands, at 79: "Although `conviction' and `sentence' are commonly used synonymously, they are legally distinct. Conviction is the determination of guilt of an accused; sentence is the judgment entered thereon."
Whether the penalty stage of the trial is encompassed within the speedy trial guarantee does not seem to have been presented to the Maryland appellate courts before. Nor has the Supreme Court of the United States definitely answered *381 the question. In Pollard v. United States, 352 U.S. 354, the Court, assuming arguendo that sentencing was part of the trial, found no violation of the Sixth Amendment because in the circumstances there the delay was not "purposeful or oppressive" and because the sentencing error was promptly remedied when discovered. At 361. See Brady v. Superintendent, 443 F.2d 1307 (4th Cir.1971).
There are cases in other jurisdictions which conclude that the speedy trial guarantee attaches to the sentencing process. Commonwealth v. Ashe, 368 Pa. 211, 82 A.2d 244 (1951); People v. Brown, 260 Cal. App.2d 745, 67 Cal. Rptr. 288 (1968); Juarez-Casares v. United States, 496 F.2d 190 (5th Cir.1974), so hold. See United States v. Sherwood, 435 F.2d 867 (10th Cir.1970). We do not, however, find them persuasive. Of them, only Brown makes any attempt to explain the reasoning behind the conclusion. And in Brown, the California court simply quoted from another case that the guarantee of a speedy trial protects the accused against prolonged imprisonment. None of the cases refers to any direct support for its conclusion. Ashe cites no support whatsoever; Brown cites analogous support; Juarez cites only Pollard and several federal cases subsequent to that decision which simply assumed that speedy trial rights applied to the sentencing situation. See Brooks v. United States, 423 F.2d 1149, 1151 (8th Cir.1970). Finally, the statements in Ashe and Brown have been seriously eroded by subsequent decisions. See Commonwealth v. Giovengo, 188 Pa. Super. 220, 146 A.2d 629 (1958); Commonwealth v. Stewart, 221 Pa. Super. 1, 289 A.2d 126 (1972); People v. Taylor, 14 Cal. App.3d, 328, 92 Cal. Rptr. 198 (1971); People v. Valdespino, 15 Cal. App.3d, 207, 93 Cal. Rptr. 142 (1971). In Stewart, 289 A.2d at 128, the Pennsylvania court found that "[n]o express authority therefore exists for the conclusion that the federal constitutional right to a speedy trial incorporates the right to be sentenced on a timely basis." The court decided the case on due process grounds although it did note that many of the same speedy trial considerations expressed in Smith v. Hooey, 393 U.S. 374 and Klopfer v. North Carolina, 386 U.S. 213 were present in its case. 289 A. *382 2d at 129. In Valdespino, the California court was faced with a situation where imposition of sentence was suspended and the defendant was placed on probation for two years. Ten months later he violated his probation. A hearing on his probation violation was not held until more than 2 years after his guilty verdict. His probation was extended for another year. He claimed that his right to a speedy trial had been violated because his original trial was not completed until he was sentenced for his probation violation. The court rejected this contention. It distinguished Brown where there had been neither sentence nor grant of probation and thus no judgment or final appealable order. It found that the "trial" did not continue beyond the entry of a judgment or other final, appealable order the grant of probation. The court, however, did not stop there. It noted that "[o]rdinarily the trial ends with the verdict or other decision of the trier of fact." It listed four considerations which the speedy trial right was designed to protect and found them inapposite with regard to the post conviction situation, 93 Cal. Rptr. at 114-145:
"We note also that section 1381[6] is a legislative implementation of the constitutional right of one charged with crime to a speedy trial. As pointed out in Barker v. Municipal Court, 64 Cal.2d 806, 812-813, 51 Cal. Rptr. 921, 415 P.2d 809, the purpose of the Constitution and of section 1381 is: (1) to protect the accused against prolonged imprisonment, (2) to relieve him of the anxiety and public suspicion attending an unresolved criminal charge, (3) to prevent his exposure to the hazards of a trial after a great lapse of time, with witnesses unavailable or their memories dulled, and (4) to avoid the possibility of concurrent sentences being denied him.
*383 These considerations seem wholly inapplicable to Valdespino. His guilt on the earlier Santa Clara County charge has been conclusively determined. The anxiety and public suspicion attending an unresolved criminal charge and a lapse of time with attending problems of missing or forgetful witnesses could not concern him. Nor could he be prejudiced by the possibility of prolonged imprisonment or denial of the possibility of concurrent sentences."
Brooks v. United States, supra, and Alford v. State, 294 N.E.2d 168 (Ind. 1973), make an attempt to analyze the applicability of speedy trial considerations to the period between conviction and sentencing. Both indicate non-applicability. In Brooks, at 1152-1153, the 8th Circuit noted that "the sensitive concerns which surround the necessity of a speedy trial on the merits of a case generally are not applicable when the delay is between conviction and sentencing. There exists here no concern over `oppressive incarceration' before trial, `anxiety' over public accusation before trial, or any `impairment' over petitioner's ability to defend himself." In Alford, the defendant contended that certain Indiana Rules of Criminal Procedure and the cases relating to speedy trial were applicable to sentencing. The court, after discussing the reasons for necessity for a speedy trial, rejected this contention, 294 N.E.2d at 170-171: "Once the defendant had pled guilty and is convicted of the offense, the possibility of lost evidence or fading memories of witnesses is no longer a factor. Although Alford had not been sentenced, his right to file a motion to withdraw his guilty plea or to file a petition for post conviction relief under P.C. 1 of the Indiana Rules of Procedure were in no way impaired."
We call attention to another line of cases in which state courts have voided sentences imposed after a substantial delay, not on speedy trial grounds, but apparently under due process principles, on the basis that the sentencing court lost its jurisdiction because of an unreasonable delay. See People *384 v. Ruddell, 46 Ill.2d 248, 263 N.E.2d 48 (1970); People v. Fay, 10 N.Y.2d 374, 179 N.E.2d 483, 223 N.Y.S.2d 468 (1961) and cases cited therein. In Fay, the defendant had pleaded guilty in January of 1953 but had not been sentenced until November of 1959. The question before the court, undecided in New York at that time, was "Does an inordinately long and unexplained delay in imposing a criminal sentence cause the trial court to lose jurisdiction so that a sentence thereafter imposed is void and the defendant is entitled to habeas corpus relief?" 223 N.Y.S.2d at 469. The court listed a group of cases which answer the question affirmatively, id. at 470:
"The general rule of those cases is expressed thus in People v. Penn, 302 Ill. 488, 494, 135 N.E. 92, 95: `The effective administration of criminal law requires that one who pleads guilty or is convicted of a violation of the law shall be promptly and certainly punished, and no court has authority to suspend sentence indefinitely in such case. It is the duty of the court to pronounce judgment promptly at the term at which the conviction is had, unless upon a motion for a new trial, in arrest of judgment or for other cause, the case is continued for further adjudication, and the defendant, by recognizance or being held in custody is still required to answer the charge. If sentence is indefinitely suspended, the court loses jurisdiction, and a judgment subsequently entered is void.'"
The court noted that the Illinois Rule was not universal, id.:
"An important holding to the contrary is the United States Supreme Court's in Miller v. Aderhold, 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702 where it said that, while indefinite or overlengthy postponement is unlawful, it gives the defendant no rights at least unless he has moved for timely sentencing, since his failure so to move is a consent or waiver. But the Miller holding is not binding on us and seems at war with concepts *385 prevalent in this State especially since our State nowhere imposed on a defendant any duty to demand sentence and the question of retention or loss of jurisdiction should not depend on activity or nonactivity of defendant. Furthermore, a waiver is an intentional relinquishment of a known right and there is no proof here of any such intention of this relator."[7]
The court rejected Miller and accepted the rationale of the Illinois Rule, id. at 471-472:
"This State has a strong policy against unreasonable delays in criminal causes and it has been enforced to the full (see People v. Wilson, 8 N.Y.2d 391, 208 N.Y.S.2d 963, 171 N.E.2d 310). No reason appears why it should not be enforced here. Sentencing is the entry of judgment in a criminal cause. It is a part of the judicial process and, as explained in the above-cited cases from other jurisdictions, it is in the absence of compelling reasons inconsistent and disorderly to defer that part of the process. We need not stop to inquire what factors justify long delays in sentencing because we find here nothing that the law would accept as a reason. Not only orderly administration of the courts and the public interest therein demand prompt disposition of these matters but a convicted defendant also has an enforcible interest in having judgment pronounced. Until such pronouncement he cannot be eligible for pardon or commutation of sentence, and deferment of imprisonment puts off the time when he can serve his term and return to society or can be eligible for parole. In this case the sentence if promptly announced in 1953 could not have sent relator to *386 prison since he was but 17 years old. Lack of a judgment prevents an appeal. For all these reasons we think the better rule is that a long and unnecessary failure to sentence is not only an error but results in lack of jurisdiction. If sentencing can be delayed 6 years without failure of jurisdiction, it can be delayed forever."
A number of other courts have followed Miller and answered the question posed in Fay negatively. See State v. Sorrows, 63 N.M. 277, 317 P.2d 324 (1951). In Fitzherbert v. State, 229 A.2d 697, 700 (Me. 1967), the Maine court said that the position as to loss of jurisdiction espoused by Fay is the minority rule.
In Barker v. Wingo, supra, at 532, the Supreme Court listed the interests of the defendant which the speedy trial right was designed to protect:
"This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system."
It is manifest that an accused's defense cannot be impaired once he has been convicted. So the most serious interest to be protected is not susceptible to protection at that point. Of course, no appeal would lie until final judgment, attained upon the imposition of sentence. It is conceivable that delay in the right to appeal could result in prejudice to the defense in the event a new trial was awarded. See Fay, supra, and Brown, supra. But that is mere speculation. Such a claim is to be advanced if and when the speculation ripens into reality. Patently, after conviction reached without violating speedy trial precepts, "oppressive pre-trial incarceration" is not a factor, nor is the interest to "minimize anxiety and concern of the accused." "Accused" *387 within the contemplation of the speedy trial right has been narrowly construed by the Supreme Court in United States v. Marion, 404 U.S. 307, which held that the right did not attach until a person has been "accused" either by arrest or proper charge. The Court found that "[o]n its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been `accused' in the course of that prosecution." Id. at 313. The speedy trial guarantee runs to a criminal defendant and the guarantee is that the prosecuting authorities will move with dispatch to insure an early and proper disposition of the charges against him. State v. Hamilton, 14 Md. App. 582, 287 A.2d 791. Therefore, the guarantee only applies during that period of time when the prosecuting authorities are actually prosecuting the defendant. Once the "accused" is found guilty he becomes the "convicted". He is no longer an "accused" because the charges have been resolved against him. The role of the prosecuting authorities is to all intent terminated once the guilty verdict has been rendered. It then becomes the responsibility of the trial court to sentence the convicted criminal. His prosecution is complete all that remains is to determine punishment for his wrongdoing.
In addition, when the Barker court talked in terms of anxiety and concern of the accused, it was referring to a presumptively innocent defendant who must exist under a cloud of suspicion and uncertainty. See Klopfer v. State of North Carolina, supra, at 222. But when the defendant is found guilty his presumption of innocence dissipates. While he awaits sentencing he may still be under a cloud, but it is not a cloud of "public accusation", Klopfer, supra, but a cloud of public guilt generated by the finding beyond a reasonable doubt that he did commit the wrongs alleged. See Valdespino, supra. The major concerns of the speedy trial guarantee either do not apply after conviction or are of only speculative moment. Any real prejudice suffered by an individual as a result of an unreasonable delay in sentencing may be remedied under due process principles.
We hold that the constitutional right to a speedy trial does *388 not apply to the penalty stage of the proceedings and that delay in the imposition of sentence is to be tested by due process standards.
In denying the motion to dismiss the case, the court said:
"When a defendant is released in the custody of his attorney, I think that resolves into certain responsibilities both as to the attorney and as to the defendant.
The evidence here, by stipulation, is that the defendant made at least four or five changes of address without notifying his counsel.
Mr. Cohen testified that he did not know the address of his client after attempting to communicate with him at the only address he knew, 212 South Gilmore Street."[8]
We see no violation of due process of law in the unique circumstances here existent. The delay in sentencing was due to administrative misadventure; it was not purposeful or oppressive. There was patently no deliberate attempt to hamper Erbe. Rather, there was inadvertent inaction. The fault was accidental in conception, venial in effect, and remedied as promptly as possible when known. The key is that had Erbe felt at any time truly aggrieved by the failure to impose sentence, he need only have so indicated to his counsel, to the State or to the court. He at all times knew that he had been convicted (on appeal he does not challenge the propriety of his conviction), that he had been released in the custody of his lawyer, and that he was awaiting sentence. It was not until it came to the attention of the court that sentence had not been imposed, and Erbe was apprehended by a quirk of fate after failing to appear in answer to a served summons, that he became dissatisfied *389 with his status. Not only did he maintain silence, but he failed to keep in touch with his attorney and did not inform him or the court of his many changes of address. It is manifest that, until taken into custody, he was perfectly content to enjoy the status quo.
At the hearing on the motion to dismiss, Erbe produced no evidence of actual prejudice. He did not himself testify on the issue, although he may well have been a compellable witness. He now argues that he suffered "actual prejudice" in three respects: (1) five years spent under the threat of punishment; (2) the postponing of punishment, which if timely imposed, "would probably have been completed by now"; (3) the one month he spent in jail after he was arrested on the bench warrant for his failure to appear for sentencing in March 1973. None of these points was raised below. Rule 1085. In any event, he could have been sentenced either in 1969 or 1973 to a total of 25 years. Code, Art. 27, §§ 30 (b) and 340. It seems that the delay, rather than enhancing punishment, may well have lessened it. And the issuance of the bench warrant and his subsequent incarceration were directly attributable to his failure to appear or inform the proper persons of his whereabouts.
We hold that the court below did not err in denying the motion to dismiss on the ground of a denial of due process of law.[9]
Maryland Rule 761 a
Rule 761 a provides, inter alia: "Sentence shall be imposed without unreasonable delay." Erbe contends that his sentencing on 1 July 1974 was a violation of the Rule. Therefore, he argues, this Court should "vacate the conviction and sentence and dismiss the indictment." Even if the sentence was imposed after an unreasonable delay, Erbe *390 is not entitled to the relief he seeks because he has failed to show that he was prejudiced by the delay.
The Rule provides no sanction for a violation of its requirement that sentencing be imposed without unreasonable delay. Thus, in the absence of a violation of constitutional rights, the imposition of sentence will not be precluded even where there has been unreasonable delay. The pertinent language of Rule 761 a is identical to Rule 32 (a) (1) of the Federal Rules of Criminal Procedure. As is the case in other states, the Maryland Rule was obviously patterned on the federal Rule. See Fitzherbert, supra. Cf. Dyson v. State, 6 Md. App. 453, 458. The federal courts have refused to void a sentence imposed after an unreasonable delay unless the delay was "purposeful or oppressive", Welsh v. United States, 348 F.2d 885, 886-87 (6th Cir.1965), or the defendant suffered "meaningful loss or injury to his rights." United States v. James, 459 F.2d 443, 444 (5th Cir.1972), cert. denied 409 U.S. 872. In Juarez, supra, at 192, the Court said that "[i]f there has been an unreasonable delay, and if that delay results in prejudice to the defendant, then a violation [of the Sixth Amendment and Rule 32] has occurred." (emphasis added) In Application of Leibowitz, 43 N.J. Super. 579, 129 A.2d 466, 469 (1957), the Court held that the rule providing that sentence be imposed "without unreasonable delay" was directory and not mandatory.[10]
We hold that the court below did not err in denying the motion to dismiss on the ground of a violation of Rule 761 a.
Judgments affirmed; appellant to pay costs.
NOTES
[1] Stanley S. Cohen, Esq. appeared at the arraignment on behalf of Erbe. Mr. Cohen told the court: "He informs me that next week he will pay me and at that time I will enter my appearance." The plea was not guilty. Election of a jury trial or court trial was reserved. Mr. Cohen was appointed by the court on 25 June 1969 to represent Erbe and counsel's appearance was entered on that date.
[2] On 25 June 1969 a stet was entered to the indictment as to Peyton. The stet was moved by the State "because of conviction in companion case" and ordered by the court for that reason. See Maryland Rule 718.
[3] The docket entry on 16 January 1974 reads: "As to Erbe, Case Resumed: Oral Motion to dismiss Indictment heard and denied." At the hearing, however, the judge said in open court that he had "perused the motion which was handed me in chambers this morning when all counsel were present." No written motion to dismiss is included in the record submitted to us.
[4] Apparently this is the reason why Mr. Cohen was appointed by the court to represent Erbe. See footnote 1, supra.
[5] It appears from the record that disposition was first set for 15 March 1974. According to the docket entry on that date it was "Removed by Criminal Assignment Office." The reason for the removal is not disclosed.
[6] Section 1381 of the California Penal Code makes it mandatory upon the prosecutor to bring a defendant to trial within 90 days after he received notice from the defendant who has been incarcerated for conviction on another offense.
[7] We note the parallels between the New York court's reasoning with regard to waiver and the Supreme Court's rationale for rejecting the "demand-waiver rule" in Barker v. Wingo, 407 U.S. 514. New York was one of the few states which had rejected the demand waiver rule prior to Barker.
[8] Defense counsel conceded that there was "a dual responsibility; that of the attorney and of the defendant to keep in touch with each other." He argued, however, that the attorney did not recall "even telling Mr. Erbe what his responsibilities were; what he was supposed to do; when he might be sentenced or anything. There was just simply no contact here at all hardly an attorney-client relationship at all."
[9] Even if the right to a speedy trial applied to the penalty stage of the proceeding, upon consideration of waiver and, if not waived, of the four factors involved the length of the delay, the reason for the delay, prejudice, and assertion of the right, we would have no difficulty in finding that Erbe was not entitled to the relief prayed. See State v. Becker, 24 Md. App. 549; Johnson v. State, 305 A.2d 622 (Del. 1973).
[10] In Stevenson v. State, 4 Md. App. 1, the accused argued that his prosecution was precluded by a violation of Rule 719, which provides that the accused shall be furnished a copy of the indictment "within a reasonable time." This Court rejected that argument, finding no violation of constitutional rights under the circumstances of the case. At 17-18. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263775/ | 336 A.2d 164 (1975)
In re Richard J. CRONIN.
No. 13-73.
Supreme Court of Vermont, Rutland.
April 1, 1975.
*165 Gregory A. McKenzie, Deputy Defender Gen., Robert E. West, Defender Gen., Montpelier, for plaintiff.
John S. Liccardi, State's Atty., Rutland, for defendant.
Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.
LARROW, Justice.
This is an appeal from denial of post conviction relief sought under 13 V.S.A. § 7131 et seq. The substance of appellant's claim below was that a plea of nolo contendere entered by him in the District Court of Vermont, Unit No. 1, Rutland Circuit, was induced by promises and misrepresentations of his assigned attorney, and done without the benefit of effective counsel. The plea was to a charge of armed assault, reduced from a charge of armed assault with intent to kill or maim. A 3-5 year sentence was imposed. Appellant here claims, in brief, that the trial court did not apply correct legal standards in determining whether his plea was unfairly induced, and erred in finding he had been afforded the effective assistance of counsel.
A long summary of facts is not required for disposition. Appellant, who was 17 at the time of the plea in question, had his *166 father as guardian ad litem, his mother also in attendance and participating, and assigned counsel of his selection. His claim was that he entered his plea in reliance upon statements of his counsel that he would be eligible for parole in six months, or that, because of counsel's political influence with the then governor, a pardon might be secured. He also claimed that counsel's impatience with his case and his disregard for his rights, coupled with these statements, required a finding of incompetency by the reviewing court, under any applicable standard.
In summary, the reviewing court found the attorney to be in good standing. It found that there had been several discussions about probation, parole and pardon, but that no promise had been made by the attorney as to any of these matters. It found, by way of conclusion, that no promises or misrepresentations had been made to the appellant, and that he was represented by effective and competent counsel. Post conviction relief was denied.
As appellant asserts, substantial questions of law are involved in this appeal. He briefs these questions ably and extensively; the State somewhat perfunctorily relies upon the presumption of counsel's competency outlined in general terms in In re Murphy, 125 Vt. 272, 214 A.2d 317 (1965), and in State v. Rushford, 127 Vt. 105, 241 A.2d 306 (1968). It argues the passage of time, prejudice to the state, a reliance by the state upon the appellant's oral and written waiver of further proceedings, and the failure of the appellant to establish that representations were in fact made to him. These claims have some weight, but they are not in our judgment controlling, nor are they dispositive of the case here presented. In our view, the findings below are not either particular enough or definitive enough to permit final disposition here. A remand is required for new hearing and findings adequate to dispose of the legal issues involved.
Consistent with the testimony of counsel, the court found that there were no promises or misrepresentations as to prospects of pardon. This finding must be sustained, as supported by the evidence. Lane Construction Co. v. State, 128 Vt. 421, 265 A.2d 441 (1970). But the findings are silent as to admitted conversations on the subject, the content of those conversations, admitted discussions of political activity that would not otherwise be relevant, and what, if any, reliance might reasonably have been placed by appellant in the prospects of pardon. Similarly, too, the findings are silent about the activities of counsel in the trial court, including attempts to waive the procedures usually attendant upon the taking of an inculpatory plea, even though these matters were of record and undisputed. They overlook completely the attorney's claim of lost records, and his admission of failure to answer repeated letters from appellant while in prison. All of these matters, in our view, have material bearing on the points in issue, and their total absence from the factual findings requires a remand.
A possible course of action open to us would be to defer resolution of those issues pending further factual hearing. But implicit in the remand for such hearing is a holding that these matters, not now found, are material for disposition. If they were not, remand would not be required.
As noted, the court below found that no promises or misrepresentations were made. But we concur with appellant that this is not the crucial point. An explicit promise is not required in order for a plea to be considered involuntary. A misunderstanding, if reasonable, that statements are a promise or representation may be sufficient to vacate a conviction based on plea. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); In re McGrail, 130 Vt. 492, 296 A.2d 213 (1972). If a defendant changes his plea in full reliance upon an understanding, entertained rightly or wrongly, *167 but reasonably and in good faith, the change of plea is involuntary if the understanding proves to have been wrong. In re Newton, 125 Vt. 453, 458, 218 A.2d 394 (1966). The finding that no promises or misrepresentations were actually made should not be conclusive.
If the defendant had that bona fide belief [of receiving probation or suspended sentence] in his mind and if that belief was a controlling factor in causing him to enter a plea of guilty, the court has to take that belief into consideration, irrespective of the kind of information upon which it was founded.
United States v. Lias, 173 F.2d 685, 687 (4th Cir. 1949); accord, United States v. Lester, 247 F.2d 496 (2d Cir. 1957). A strong factor for consideration is the age of the appellant at the time he changed his plea. Admittedly, he was then 17, a fact neither found nor considered by the trial court. And this fact becomes particularly relevant in considering the effect of the form statement of voluntariness executed by him, and his responses to the inquiries of the court in this connection at time of sentence. Such inquiries did not include the determination of the factual basis for the plea now required by V.R.Cr. P. 11(f), but that rule was not then in effect. Appellant testified that he thought "he was all set and saying anything would ruin whatever had (been) done." If believed, that statement could destroy the evidentiary effect of his signed and oral statements, in accordance with the holding in Christy v. United States, 437 F.2d 54 (9th Cir. 1971):
The fact that on entering his plea appellant had assured the court that no one had promised him anything is not conclusive. As this court noted in United States v. Tweedy, 419 F.2d 192, 193 (9th Cir. 1969), he might have thought "that it was all part of the game and that honest answers would destroy the deal." Christy, supra, 437 F.2d at 55.
The application of this rule could well be strengthened by the efforts of his counsel, shown by the transcript though not found by the trial court, to have the plea accepted without the "formalities" of inquiry by the sentencing court, on his representation that "this young man understands his rights to a jury trial and other rights." The sentencing court, to its credit, nonetheless made full inquiry of the respondent, but confusion, misunderstanding, and consequent involuntariness could well have been found by the trial court, had it not elected to confine itself to the issue of whether promises or misrepresentations were in fact made. Remand is required for the finding of all relevant facts and the granting or denial of relief on the basis of such findings.
The importance of full inquiry into the voluntariness of appellant's nolo plea is emphasized by DR-9-101(C) of the A.B.A. Code of Professional Responsibility:
(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.
Appellant further contends that in the District Court he was deprived of the effective assistance of counsel, contrary to the provisions of the Sixth Amendment to the U. S. Constitution. He urges that the reviewing court did not apply the proper standard in testing this contention, and that, whatever standard is applied, his representation did not meet it.
This general subject has received the attention of this Court in the past. In re Murphy, supra; State v. Rushford, supra; In re Bousley, 130 Vt. 296, 292 A.2d 249 (1972). Both Murphy and Rushford enunciate, with seeming approval, the so-called "mockery of justice" standard. Under that standard, to set aside a conviction for inadequacy of counsel, the record as a whole must demonstrate a representation "so rife with shortcomings and of such low caliber as to amount to no representation." *168 Still, while quoting this standard, in each case the Court went on to examine in detail the conduct of the attorney in question, and based its ultimate judgment on its analysis of that conduct. Thus in Bousley, where, as here, respondent selected his assigned counsel, the Court concluded:
We have carefully perused the whole record and we find absolutely no merit in petitioner's accusations. There is nothing in the record to indicate that the conduct of petitioner's defense was in any degree less than the conduct expected from a lawyer with the skill, training and experience of Bousley's counsel.
In re Bousley, supra, 130 Vt. at 304, 292 A.2d at 255.
We have, therefore, while expressing the lesser standard of "mockery of justice," at the same time carefully reviewed the complained-of conduct to test its conformity with the standards of reasonable competence, thus justifying our own comment that there is "neither uniformity of discussion nor certainty" on the point in question. Id. at 299, 292 A.2d at 252.
The reported cases contain many able discussions as to the appropriate standard to be applied where inadequacy of counsel is the claimed defect in a criminal conviction. A lengthy summation of these arguments would serve little purpose. It would appear, however, that two aspects of representation require consideration, the first his appointment and the second his conduct of the litigation. As to the first aspect, we reiterate our previous statements that there is a presumption of competency attendant upon the appointment of a member of the bar in good standing, and that the burden is on the respondent to overcome this presumption by a preponderance of the evidence. In re Murphy, supra; In re Bousley, supra; In re Clark, 127 Vt. 555, 255 A.2d 178 (1969).
On the second aspect, we feel that the modern weight of authority, and the better view, support appellant's contention. The appointment, or acceptance, of competent counsel by the court does not fully satisfy the constitutional rights of a respondent. As a matter of common knowledge, the most competent counsel may, from time to time, deviate seriously from standards of reasonable competence, and it is no complete answer to say to a respondent that his attorney has demonstrated great proficiency in other cases. His concern is his own case; his right is to the assistance of counsel acting with reasonable competence in his case.
We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.
MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), cert. denied 368 U.S. 877, 82 S. Ct. 121, 7 L.Ed.2d 78 (1961).
The standard of adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place.
Moore v. United States, 432 F.2d 730, 736 (3rd Cir. 1970); accord, West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973); United States v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973); Brubaker v. Dickson, 310 F.2d 30 (7th Cir. 1962); Pinedo v. United States, 347 F.2d 142 (9th Cir. 1965); State v. Fleury, 111 N.H. 294, 282 A.2d 873 (1971).
We note that the view which we here adopt appears to have the endorsement of the U.S. Supreme Court. In McMann v. Richardson, 397 U.S. 759 (1970) at 770-71, 90 S.Ct. 1441 at 1448, 25 L.Ed.2d 763, that Court held:
In our view a defendant's plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the *169 defendant's confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases. On the one hand, uncertainty is inherent in predicting court decisions; but on the other hand defendants facing felony charges are entitled to the effective assistance of competent counsel.
It is apparent from the record below that the reviewing court considered only whether promises or misrepresentations were in fact made to appellant by his counsel, and the competency of counsel generally, rather than his effectiveness in the particular case. For the reasons we have outlined, these considerations alone do not determine the voluntary or involuntary character of the plea which appellant entered, and remand for new hearing is required.
Judgment reversed, and cause remanded for new hearing in accordance with the views herein expressed.
BARNEY, Chief Justice (concurring).
I agree with the opinion filed in this case that there must be a remand for further findings. I further agree that the sole issue is the voluntariness of the appellant's plea of guilty.
It seems to me the gist of the appellant's complaint to the Court is that he changed his plea to guilty on the basis of misrepresentation by his attorney, whether intended or unintended. Unlike In re Newton, 125 Vt. 453, 218 A.2d 394 (1966), the misrepresentation could not come to light prior to, or during the sentencing process, as far as the appellant was concerned. Nor was it a plea bargain, or a transaction of which the sentencing court was aware, or in which it was involved.
Furthermore, the opinion filed seems to suggest in fact that the finding of no misrepresentation made below may be based, improperly, on an inadequate consideration of the record, and therefore, in reality, subject to challenge as contrary to the evidence. It is my agreement with this evaluation that leads me to concur.
I am not at all certain that I can accept generally the proposition that a subjective, but reasonable misunderstanding, if established, guarantees retrial. This is a proposition of broad sweep, and I would prefer to examine its implications in the light of a more complete exposition of the facts.
The misunderstanding asserted here springs from actions of defense counsel. From the facts I cannot determine whether the issue arises out of claims of incompetence, misconduct or misunderstanding. If the result is a due process deprivation for the appellant, the distinction, as to him, would seem to be of little moment. Thus, I am not sure whether this is the sort of case that will, when the time comes, perform a definitive function in establishing tests for competency of counsel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263654/ | 25 Md. App. 428 (1975)
336 A.2d 515
DANNIE LEE WHITMAN
v.
STATE OF MARYLAND.
No. 333, September Term, 1974.
Court of Special Appeals of Maryland.
Decided April 3, 1975.
*429 The cause was argued before MORTON, MOYLAN and MOORE, JJ.
James D. McCarthy, Jr., with whom was Frank R. Weathersbee on the brief, for appellant.
Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General and Robert D. Horsey, State's Attorney for Somerset County, on the brief, for appellee.
MOORE, J., delivered the opinion of the Court.
The primary question on this appeal is whether appellant, Dannie Lee Whitman, who had been the subject of an arrest without probable cause, thereafter consented voluntarily to a search of his truck in which was found an illicit cargo of 9,156 cartons of cigarettes, in transit from North Carolina to New York.
The appeal was taken from a judgment of conviction upon a criminal information in the Circuit Court for Somerset County charging appellant with illegally transporting cigarettes without the required Maryland cigarette stamps and with possession of unstamped or improperly stamped cigarettes. After the denial of his motion for suppression of the contraband, the court (Duer, J. presiding without a jury) found appellant guilty of both counts and sentenced him to a fine of $15,000 plus court costs. Concurrent one year prison terms were suspended.
The record discloses that appellant, age 23, was transporting the cigarettes in a red, six-wheel truck, 1974 model, with a long aluminum body, north of the Chesapeake *430 Bay Bridge Tunnel late on the night of December 11, 1973. Unknown to Mr. Whitman, a police informant was following him. Telephone calls were made by the informant to Corporal Thomas M. Windsor of the Maryland State Police at 11:58 p.m. on December 10 and thereafter at 12:50 and 1:15 a.m. on December 11. Trooper Windsor in turn relayed this information to State troopers on the Eastern Shore of Maryland, alerting them to be on the lookout for the vehicle. Trooper Franklin R. Evans of the Maryland State Police in Worcester County had appellant under surveillance and ultimately stopped him in Somerset County, just north of the Worcester County line at approximately 1:30 a.m. He was joined there by Trooper P.L. Thomas.
Appellant was placed under arrest by Trooper Evans: "I advised him we had reliable information he was hauling untaxed cigarettes and placed him under arrest, and read the Miranda warnings to him." The trooper asked appellant's consent to a search of the vehicle and appellant refused. The truck was then driven by Trooper Thomas to the State Roads Barn in Somerset County. Appellant was transported to the Barn in the police cruiser by Trooper Evans. Trooper Milton J. Hall, a criminal investigator for the Maryland State Police was contacted to assist in the investigation and assistant State's Attorney Widdowson of Somerset County was also summoned. Upon the arrival of Trooper Hall at the Barn, it was ascertained that the vehicle was registered to Whitman Furniture Company of Coats, North Carolina, and appellant was advised that he had the right to give permission to open it. As to his response, Trooper Evans testified:
"A. He kept saying no, so we told him that we were going to open the vehicle and we were going to get a search warrant.
* * *
Q. You told him you were going to get a search warrant?
A. We started the process to obtain a search warrant.
*431 Q. You started the process?
A. Yes.
Q. And what was that?
A. We were in the process of typing it up and getting the Judge in fact, the Judge did come to the barn.[1] In between time, the defendant gave us permission. The key to the lock was on the key ring of the vehicle. The defendant opened the rear door and we examined the cargo.
Q. The defendant himself did open the truck for you?
A. He unlocked the lock, yes, sir.[2]
Q. Do you know about what time it was that he gave you consent to open up the truck?
A. I would say about an hour later, hour and a half later. I can't swear for sure exactly what time."
Trooper Evans admitted on cross-examination: "I might have said we will go in the truck with or without your consent, so you might as well give it ... I advised him what the law was, that we could legally go in there with or without his consent. I believe that's my wording." (Emphasis added.) According to Trooper Evans, appellant then stated: "You can go ahead and search it." Trooper Evans had requested appellant to unlock his truck on two prior occasions and had been refused.
Trooper Hall, who appears to have had the principal role in the investigation at the State Roads Barn, testified that he also twice requested permission to search the truck and added:
"I started the search warrant and typed a few *432 sentences and advised Mr. Whitman it would be a lot less time consumed if we could receive a consent to search. And at the time, after I typed several sentences, he acknowledged that he would permit us to search the vehicle.
Q. Do you know what time that acknowledgment of his came forth?
A. I believe it was approximately 2:30.
Q. What time was your time of arrival at the barn?
A. Shortly after 2:00. I'm not certain.
THE COURT: Was Mr. Widdowson there
THE WITNESS: Yes, sir.
THE COURT: when he gave you consent to search?
THE WITNESS: Mr. Widdowson was himself interrogating the defendant.
BY MR. HORSEY:
Q. You mean the Assistant State's Attorney?
A. Yes, sir."
On cross-examination Trooper Hall stated that appellant gave his consent to the search after the second request and that the consent came after Trooper Hall in effect stated:
"We are getting a search warrant. It would be a lot less time-consuming if you just go ahead and consent.
Q. And he said?
A. Yes, sir."
Taking the stand in support of his motion to suppress, appellant recalled Trooper Evans' stating that the troopers would open the truck whether he consented or not. He described the effect of this statement upon him in the following manner:
"A. Well, I figured if they were going to open it anyway, I might as well.
*433 Q. Did you say that before you signed this?
A. Yes, sir.
Q. Did that have any bearing on the fact that you signed this?
A. Yes, sir.
Q. What bearing?
A. Well, like I just said, if I was already under arrest anyway, they are going to open it anyway so save a little time.
Q. Did you know you didn't have to sign that?
A. Yes, sir.
Q. You did know that?
A. Uh-huh."
The paper to which the appellant affixed his signature was a form entitled "Consent to Search and Seize." It was executed by him on December 11, 1973 at 2:35 a.m. and contained the following paragraphs after describing the vehicle and granting permission to search it:
"I fully understand that I have a constitutional right to refuse to consent to this search and that the items seized may be used against me in a court trial. I further understand that I have a constitutional right to withdraw my consent at any time and require any further search to be executed on the strength of a legal search warrant.
"This consent has been given by me to the above named officer knowingly and voluntarily and absent of threats, promises or inducements of any kind with the full knowledge that I have waived my constitutional right to refuse this consent."
In his denial of the motion to suppress, the trial court made the following ruling from the bench:
"I think he made a voluntary consent. It's true that he was there perhaps an hour. He tells me that the police outside of asking him to consent to open the truck, apparently treated him all right.
*434 "This man was not treated as a hardened criminal. He wasn't handcuffed. He could move around, smoke if he wanted to, and I suspect he did just about as much as any troopers down there.
"He signed this consent and he knew he consented because he thought it would save time. He had a right to consent and he did it. I think it was voluntary.
"On those grounds, I overrule your motion to suppress the evidence."
The court did not advert to the question of the legality vel non of appellant's arrest by Trooper Evans. On this point, however, the record is abundantly clear that the familiar requirements of Aguilar v. Texas, 378 U.S. 108 (1964) i.e., the basis of knowledge test and the credibility or reliability test were not satisfied. Trooper Windsor, to whom the informant made the three telephone calls, could provide no testimony concerning the informant's basis of knowledge and could only testify that he had had two prior calls from the informant some six months before.
In this condition of the record the State concedes in its brief that the evidence "does not sufficiently establish the underlying circumstances for the credibility or reliability of the informant so that the lower court could determine that the police had probable cause to believe that the appellant had committed or was committing a felony." The State contends, however, that even if the arrest was illegal it does not follow that the search was unlawful for the reason that a subsequent search does not become unlawful and the evidence obtained thereby inadmissible if the accused voluntarily consented to the search, placing reliance upon Anderson v. State, 237 Md. 45, 205 A.2d 281 (1965) and Lopata v. State, 18 Md. App. 451, 307 A.2d 721 (1973).
The principal question before us with respect to the denial by the lower court of the motion to suppress the evidence is whether appellant's consent to the search of the truck was voluntary. Appellant has also challenged the sufficiency of *435 the evidence to sustain his conviction of illegal transportation of untaxed cigarettes.
I
Preliminarily, with respect to the scope of our review, we observe that in the presence of alleged infringements of constitutionally protected rights, we are required to examine the entire record and to make an independent, reflective constitutional judgment on the facts. Davis v. North Carolina, 384 U.S. 737, 741 (1966); Walker v. State, 12 Md. App. 684, 280 A.2d 260 (1971). As Judge Moylan stated for this Court in Walker (12 Md. App. at 695):
"What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact the existence or non-existence of voluntariness."[3]
Our analysis of the law applicable to the principal question presented here must focus in the first instance upon two leading cases decided by the Supreme Court of the United States: Bumper v. North Carolina, 391 U.S. 543 (1968) and Schneckloth v. Bustamonte, 412 U.S. 218 (1973).[4]*436 In Bumper a black man was brought to trial and convicted upon a charge of rape of a white woman. The conviction was reversed and the case remanded, essentially for the reason that the appellant's grandmother, a 66 year old widow with whom the appellant lived in a house located in a rural area, at the end of an isolated road, was held not to have consented to the search of her residence and that it was constitutional error to admit in evidence a rifle found in the search and allegedly used by the appellant in the perpetration of the crime.
The grandmother, two days after the alleged offense but prior to the petitioner's arrest, admitted four white law enforcement officers into the house. One of the officers had announced, "I have a search warrant to search your house." The woman responded, "Go ahead," and opened the door. At a hearing on the motion to suppress the prosecutor informed the trial court that he did not rely upon a search warrant but upon the consent of the grandmother. (No such warrant was offered in evidence nor was there any return of a warrant in the record).[5] She testified at the hearing that the officer had not read her the search warrant but he did tell her he had one. She believed he had such a warrant and was quite agreeable to the search of her house:
"... He said he was the law and had a search warrant to search the house, why I thought he could go ahead. I believed he had a search warrant. I took him at his word."
And again she stated:
"Nobody threatened me with anything. Nobody told me they were going to hurt me if I didn't let them search my house. Nobody told me they would give me any money if I would let them search. I let them search, and it was all my own free will. Nobody forced me at all." (Emphasis added.) *437 In holding that the petitioner's constitutional rights had been violated, Mr. Justice Stewart, writing for the Court, first stated the rule with respect to the burden of proof where consent is relied upon:
"When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all." (Emphasis added.)
As to the effect of a law enforcement officer's claim of authority to search pursuant to a warrant, the Court observed:
"When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion albeit colorably lawful coercion. Where there is coercion there cannot be consent." (Emphasis added.)
In the instant appeal there was no evidence of a deliberate misrepresentation by the police or by the Assistant State's Attorney that there was a clear right to the issuance of a search warrant. Bumper is not, however, to be distinguished simply by stating, as does the appellee in its brief, that the State Police did not claim authority to search the truck under a warrant which in fact did not exist and that they "simply indicated that they would obtain such a warrant if appellant refused consent." This is an understatement of the facts in this case and there remains to be answered the *438 question whether here was also a situation "instinct with coercion."[6]
Further guidelines in the determination of the voluntariness of a consent to a warrantless search emerged in Schneckloth v. Bustamonte, supra.[7] There, a police officer on patrol in the early hours of the morning stopped an automobile in which the petitioner, Robert Bustamonte, was riding, the officer having observed that the vehicle was missing a headlight and a license plate light. Five other occupants as well as the petitioner were requested by the police officer to step out of the car and the driver was given a citation for the missing lights and for driving without a permit. None of the occupants was placed under arrest and none was warned of his constitutional rights. The officer, who asserted at trial that the atmosphere at the time was "congenial," requested and received permission to search the vehicle. Three checks, later ascertained to have been stolen in a burglary, were found under the left rear seat. They were admitted into evidence at the trial over motions to suppress on the ground that there was no consent to the warrantless search of the automobile.
Mr. Justice Stewart, speaking for the majority of the Court, reversed the ruling of the United States Court of Appeals for the Ninth Circuit that it was incumbent on the State to prove that the subject of a search knew that he had a right to refuse consent. The Supreme Court thus upheld the ruling of the lower State courts that the question whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a *439 question of fact to be determined from the "totality of all the circumstances." (Emphasis added.)
The narrow holding of the Court was that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments impose upon the prosecution the burden of demonstrating that the consent was in fact voluntarily given.[8] With respect to the determination of the element of voluntariness, the Court held:
"Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent."[9] (Emphasis added.)
The Court went on to state that consent searches must not be approved without "the most careful scrutiny" by the court in order to assure the absence of coercion:
"The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial *440 restrictions upon such searches would jeopardize their basic validity.... In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents." 412 U.S. at 229.
Finally, it was also emphasized that the standard of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458 (1938) would not be applied to cases involving consent to search. "While we have occasionally referred to a consent search as a `waiver', we have never used that term to mean an `intentional relinquishment or abandonment of a known right or privilege.'"
Before we consider other pertinent cases on the precise issue involved in this appeal, we observe that the State's reliance on the cases of Anderson v. State and Lopata v. State, supra, is misplaced. Anderson is not apposite because there was no evidence contrary to the testimony of the police that the consent was freely and voluntarily given, so that the trial court's finding was merely affirmed without any discussion of possible coercion.[10]Lopata v. State, supra, although containing a thorough analysis by Judge Moylan of the then recently decided Schneckloth case, really involved the consent by an innocent third-party to the search of his commercial garage, where there was no arrest and appellant was found to lack even the standing to contest the search. The issue presented here was not reached.
Predictably, the "totality of the circumstances" rule of Schneckloth has since been applied in custodial situations as well by all the United States Courts of Appeals confronted *441 with the question. United States v. Garcia, 496 F.2d 670 (5th Cir.1974); United States v. Rothman, 492 F.2d 1260 (9th Cir.1973); United States v. Heimforth, 493 F.2d 970 (9th Cir.1974), cert. denied 94 S.Ct. 1615; United States v. Cage, 494 F.2d 740 (10th Cir.1974); United States v. Campbell, 16 Cr. L. 2508 (4th Cir.1975); United States v. Hearn and Taylor, 496 F.2d 236 (6th Cir.1974); Hayes v. Cady, 500 F.2d 1212 (7th Cir.1974); United States v. Watson, 504 F.2d 849 (9th Cir.1974), cert. granted February 18, 1975, 420 U.S. 924, 43 L.W. 3452.[11]
That the issue of voluntariness has, since Schneckloth, become "a delicate one" was observed by the Tenth Circuit in United States v. Heimforth, supra, where the appellant was convicted on four counts of illegally importing marijuana and possession of contraband with intent to distribute. On appeal he contended that the search of his warehouse, revealing large amounts of marijuana, was invalid on the ground that his consent to the search was not voluntary. The evidence disclosed that when he consented to the search he had already been arrested. While holding in accord with Rothman, supra, that the Supreme Court's "totality of circumstances" test was applicable to all consent searches irrespective of whether or not the consenting party is in police custody, the Court in Heimforth pointed out that in considering the factual issue of voluntariness, "an important factor, however, remains whether there has been an arrest prior to the consent." (Emphasis added.) (The case was remanded to the District Court for the limited purpose of making specific findings concerning the legality of the search that Court having simply made a general determination that the search was legal.)
Applying the guidelines of Schneckloth, the Sixth Circuit Court of Appeals in United States v. Hearn and Taylor, supra, collated those factors tending to establish a voluntary and uncoerced consent on the part of appellant Taylor to the *442 search of his premises, and also those tending to establish an involuntary and coercive consent search. The record disclosed that local law enforcement officers obtained a State warrant to search Taylor's premises for a stolen Hobart welder. After locating the welder at one building they continued the search, in quest of a stolen traxcavator, going to a barn 150 yards away. One of the police officers testified that they asked Taylor about the traxcavator and he responded that he was unaware that it was in the barn although he had put hay in there some six or eight months before and had not returned to the barn since then. In response to the officer's suggestion that they look at it Taylor responded, "Well, let's go see it." There they found the traxcavator concealed by the hay. After the discovery, Taylor was permitted to go on his way and turned himself in at the jail later on.
The search warrant for the Hobart welder was defective under the standards of Aguilar v. Texas and the Court found it clear that the continuation of the search after the location of the welder did not comport with constitutional standards. Consequently the admission of evidence concerning the location of the traxcavator could be supported only upon the theory that Taylor's statements and actions rendered the search a consensual search. The trial court's finding of a valid consent was overruled and Taylor's conviction under the count of the indictment pertaining to the receiving and concealing of the traxcavator was set aside and a new trial granted.
Placed here in juxtaposition, the factors isolated and analyzed by the Court were as follows:
Non-coercive Coercive
"(a) his having been initially "(a) the presence of three law
given his Miranda advice of enforcement officers on his
rights incident to farm;
*443 his arrest on the stolen (b) his initial arrest upon the stolen
welder charge; welder charge;
(b) his continued freedom of (c) the suggestion by the officers
movement and the lack of any that the barn be inspected for the
physical restraint incident to presence of the traxcavator;
his arrest upon the stolen (d) the use by the officers of
welder charge; information gained by a prior
(c) his presence on his own farm unlawful search as the predicate
and in familiar surroundings; for their suggestion that the barn
(d) his acquiescence in the be inspected for the presence of
officer's suggestion to `go the traxcavator; and
look at it' (i.e., the (e) the absence of any warning to the
traxcavator) and his appellant that he had a
affirmative response, `Well, constitutional right to refuse to
let's go see it'; and consent to a search of the barn."
(e) his leading the way to the
barn and in mounting the bales
of hay in advance of the
others."
The Court concluded, upon its evaluation of the above elements, that the coercive would substantially outweigh the non-coercive, quoting the following language from Schneckloth, as did the Court in Garcia, supra:
"In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable *444 subjective state of the person who consents." 412 U.S. at 229, 93 S.Ct. at 2049, 36 L.Ed.2d at 864. (Emphasis added.)
Both before and after Schneckloth, there are cases in which the primary thrust of appellant's claim of reversible error has been the alleged coercive effect of language or conduct of police officers pertaining to obtaining a warrant. Thus, in United States v. Curiale, 414 F.2d 744 (2d Cir.1969), cert. denied 396 U.S. 959 (1969), where the appellant was convicted of knowingly possessing three million dimes moving in interstate commerce, a federal agent presented the appellant with a consent form for searching his premises. The officer testified that after reading the form, appellant looked at the officer and remarked "If I don't sign this, you are going to get a search warrant." According to the officer, "At that point, I stopped him and said, `I don't want you to sign on that basis. If you are going to sign it, do it voluntary'. [sic] He just looked and signed it."
The Court of Appeals rejected appellant's contention that there was, as in Bumper v. North Carolina, supra, an unjustified search. It was found that appellant's statement concerning the search warrant showed an awareness of his right to resist the search in the absence of a warrant and that although he understood his right he nevertheless chose to relinquish it. As to the effect of the police officer's response, the Court held:
"Here Ahearn's response was sufficient to put the Appellant on notice that his consent should not be conditioned on the availability or unavailability of a warrant. There was no duty to disclose that at that particular moment in a continuing investigation there was insufficient evidence to get a search warrant. In any case, it is clear that Curiale knew what he was doing. Relying upon the fact that the dimes were so well concealed that they would not be found, the appellant hoped to turn suspicion *445 away from himself by appearing to give the authorities innocent and wholehearted cooperation. His lack of success, by itself, does not affect the voluntariness of his assent." (Emphasis added.)
In reliance upon Curiale, in United States v. Savage, 459 F.2d 60 (5th Cir.1972), the Court in a per curiam opinion held that a written consent was not rendered involuntary by reason of the fact that before signing the form the appellant inquired of the police officer if he could get a search warrant and the officer replied, "Yes, we probably can." The Court stated: "The officer's statement was in response to defendant's inquiry, and it was not a misrepresentation of the facts."
Implied coercion was claimed by the appellant in United States v. Culp, 472 F.2d 459 (8th Cir.1973), cert. denied 93 S.Ct. 2161 (1973), wherein a police officer announced that "[W]e are in the process of getting one [a search warrant]; one of our men is getting one and we'll search it [the premises] whether you like it or not." Although the appellant claimed that he agreed to cooperate as a result of this statement and thereafter produced an attache case and a satchel which contained incriminating evidence, the Court found on the record before it that the real inducement for appellant's cooperation was that the officers "had agreed to be lenient with my wife." The Court noted, however, that if the officer's statement had been the only inducement for appellant's consent, "further analysis would be necessary to determine whether the alleged comment requires a finding of illegal coercion." In a footnote reference on this point, the Court stated:
"Many cases imply that where law enforcement officers indicate only that they will attempt to obtain or are getting a warrant that such a statement cannot serve to vitiate an otherwise consensual search." (Citing cases including Savage and Curiale, supra.)
In another federal case prior to Schneckloth, United *446 States v. Boukater, 409 F.2d 537 (5th Cir.1969), the Court expressed similar concern over the language of the police officer. Appellant had been confronted but not arrested by federal agents at the Miami National Airport and was told that he was suspected of carrying counterfeit money. Asked if he would voluntarily consent to the search of his briefcase, appellant stated: "It looks like you got me. You can search my bags." According to one of the agents he gave his verbal approval to the search. After refusing to sign a written waiver, however, the agent said something to him about getting a search warrant. Writing for the Court, Judge Thornberry stated in the opinion that the agent was very emphatic in testifying that he did not pressure appellant by saying that he would get a warrant and make a search even if appellant withheld consent; he merely said he would attempt to get a search warrant. (Emphasis added.)
In discussing the implications of the agent's statements about procuring a warrant, the Court observed:
"The statement by Rivers about procuring a search warrant is more troublesome and might lead us to a different result if the evidence indicated that Boukater was in custody and that the agent either said or implied that he might as well consent because a warrant could be quickly obtained if he refused." (Emphasis added.)
Weighing all the circumstances, however, the Court concluded that the consent was voluntary:
"Since appellant had been advised that he was not under arrest and was free to leave, he would not have been coerced into consenting to an immediate search by the agent's statement that he would attempt to get a warrant. As we say, this factor is troublesome, but we have concluded that it does not taint the search since everything else points toward completely voluntary consent."
The Supreme Court of Oregon in State v. Douglas, 488 P.2d 1366 (1971), in the presence of conflicting trial testimony *447 concerning police officers' statements with respect to their obtaining a search warrant, held by a divided vote that the appellant's consent to a search was voluntary. The comprehensive opinion for the majority discloses that appellant was visited at his motel near the place of the crime by two police officers shortly after a burglary at a nearby service station but he declined to give them permission to examine his suitcase. The opinion attributes to the officers and the appellant, respectively, various statements with respect to obtaining a search warrant. One officer testified that he told defendant he would "make an effort" to obtain a warrant; the other, however, said that he told the defendant that he would get a search warrant. The appellant himself, testifying in support of a motion to suppress, stated that when he was alone with one of the officers, he was informed that "it would be better all the way around if I opened it myself because they could get a search warrant." Appellant also testified that his brother-in-law talked with him in the absence of the police officers and told him that the search warrant was "on its way"; and that upon being so informed by his brother-in-law he emptied the contents of the suitcase. After a discursive analysis and discussion of pre-Schneckloth case law and authorities, the majority opinion of the Court concluded that the evidence was sufficient to sustain the findings of fact by the trial court that the consent was voluntary. The Court's comments concerning the distinction between a statement by a police officer that he would get a search warrant and a statement that he would apply for one, are significant. It is stated: (p. 1375)
"Since the primary issue to be decided is whether the consent was voluntary or was coerced, we doubt whether the ordinary person, when confronted with a request by an officer to consent to a search, would discriminate between the statement that otherwise the officer would get a search warrant, as compared with a statement that otherwise he would apply for a warrant. If, however, it be considered that such a *448 distinction has controlling significance, and if it also be considered that the evidence in this case was not sufficiently `clear and convincing' to establish that the officer told defendant that otherwise he would apply for a warrant, rather than get a warrant, we nevertheless reach the same result under the facts and circumstances of this case. This is because the defendant in this case testified that what finally `prompted' him to open the suitcase was what his brother-in-law (not the officers) did and said. Thus, he testified that his brother-in-law `kept after me to open the suitcase' and told him, when he said he would `wait for the search warrant,' that `they have got it.' In addition, this is not a case in which defendant merely gave verbal consent to a search. Instead, defendant deliberately opened his suitcase, dumped out the contents and did so not only once, but twice." (Emphasis in original.)
Two other pre-Schneckloth State adjudications concluded with startling finality, and absent any discussion, that statements by police officers that they would obtain a search warrant vitiate a subsequent consent. State v. Lewis, 454 P.2d 360 (N.M. 1969); Poe v. Oklahoma City, 483 P.2d 1190 (Okl. Cr. 1971). In Lewis, a police officer testified that appellant made no objection to the search of his car because another police officer was going to get a search warrant for it "anyway". The Court of Appeals of New Mexico held flatly: "His consent does not justify the search since it is no more than acquiescence to a claim of lawful authority," citing Bumper v. North Carolina, supra. In Poe, supra, the record disclosed that appellant was informed by the police that if he did not consent to the search of his automobile it would be impounded and a search warrant obtained. The Court of Criminal Appeals of Oklahoma refused to uphold the State's contention that the defendant voluntarily consented to the search. In reversing the conviction for possession of marijuana, the Court held: "We are of the *449 opinion that threatening to impound a vehicle and to obtain a search warrant is coercion. It is a well established rule that a waiver obtained by coercion is unlawful."
In the most recent, reported consent case decided by a United States Court of Appeals, United States v. Faruolo, 506 F.2d 490 (2d Cir.1974), there is oddly no reference whatever to Schneckloth, decided seventeen months earlier. It was contended that the appellant Faruolo "reluctantly" signed a consent form permitting the search of his dwelling following the hijacking of a truckload of women's dresses and wearing apparel. Specifically, it was argued that he signed the document because of an apprehension that the federal agents would arrest his 17 year old son whom they had observed unloading the contraband and also because of an alleged representation by a federal agent that he could get a search warrant. Without referring to Schneckloth, Mulligan, J., stated for the Court that: "We adhere to the view reaffirmed in United States v. Mapp, 476 F.2d 67, 78 (2d Cir.1973) that we must look to the `totality of the circumstances' in determining whether a consent to a search is voluntary or not."
Stating narrowly the question before it, the Court observed:
"The argument is reduced therefore to the proposition that [federal agent] Egan's statement that he would apply for a warrant, which conveyed the impression that one would be obtained, constituted a coercive factor negating consent. In comparable cases this and other courts have held to the contrary. Here the defendant had been given partial Miranda warnings, he was told that he did not have to consent to the search (in United States v. Mapp, supra, 476 F.2d at 77, we held that failure even to advise the person of the right to withhold consent is not fatal but only one factor to be held in the balance) and he consented after being made aware of the fact that a warrant would be obtained."
*450 It is apparent, however, that the Court weighed heavily the District Court's finding that the federal agent's advice was "well grounded." (Emphasis added.) In its opinion the Court, indeed, states, "There was no deceit or trickery. The court below found that there was not only a sufficient basis for his communicated belief but that in fact there were grounds for the issuance of a search warrant. This is not at all open to serious question." (Emphasis added.) The Court then concluded:
"In our view, in light of these cases, the well founded advice of a law enforcement agent that, absent a consent to search, a warrant can be obtained does not constitute coercion." (Emphasis added.)
In a well-considered concurring opinion in Faruolo, Judge Newman, District Judge, focused on the implications to a defendant of a police officer's statement that he would get a search warrant:
"Were the slate clean, I would be inclined to reject a finding of voluntariness obtained in response to statements about the obtaining of a warrant that did not in some way affirmatively communicate the discretionary aspect of the warrant-issuing process. If a person is confronted with only the choice of permitting an immediate search without a warrant or waiting the brief interval necessary for a warrant to be obtained, he is misled into believing that the only variable in the choice is time, rather than the far more important variable of whether the warrant will be issued at all. If he consents because he has been led to believe that obtaining a warrant is a virtually automatic formality, then regardless of his apparent willingness to permit the search, he has responded to a situation as `instinct with coercion' as the one in Bumper, where the officer gained entry not with the assurance that a warrant could be obtained, but with the statement that he had already obtained one."
*451 The precise impact of Schneckloth in terms of its treatment of "psychological coercion" is perceptively analyzed by the United States Court of Appeals for the Ninth Circuit (Duniway, J.) in the case of United States v. Rothman, 492 F.2d 1260 (Nov. 27, 1973). Mr. Rothman was observed by the ticket agent at the Western Airlines counter at San Diego Airport because he appeared to fit the Federal Aviation Administration's profile of potential airplane hijackers. Although he passed through the magnetometer at the boarding gate without activating it, he was nonetheless detained for questioning by a Deputy United States Marshal who had been told by the ticket agent that Rothman met the profile.
Uncooperative, Rothman refused to produce identification and also assaulted the Deputy Marshal as the latter was unlocking the door to his office. He was subsequently arrested for assaulting a federal officer, handcuffed and given Miranda warnings. Thereafter his luggage from the plane was brought to the office in which he was being held. He refused permission to search it. Later, his handcuffs were removed and he was handcuffed again with his hands in front of him. The opinion of the Court quotes the following conversation which then occurred:
"Rothman: `Why don't you go ahead and open the bags?'
Deputy: `No, if you refuse to open them I don't want to open them now.' [Something was then said about a search warrant.] `We can get one and probably will later on.'
Rothman: `What is the use of going through all this, go ahead and open the bags, it is okay.'
Deputy: `No, I don't want to open them now. I won't do it. Why don't you open it now? The keys are laying here on the desk, if you want to open it go ahead.'
Rothman took the keys which had been placed in front of him and opened his luggage which contained thirty-nine kilos of marijuana."
*452 Prior to reaching its conclusion that the trial judge's finding of consent was erroneous, the Court adverted to the language of Schneckloth concerning the balancing of interests in the ascertainment of the voluntariness of a consent:
"`Two competing concerns must be accommodated in determining the meaning of a `voluntary' consent the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.' Id. at 227, 93 S.Ct. at 2048. Warrantless consent searches are permissible because they enable the police to investigate in situations where the `stigma and embarrassment' of arrest or a `far more extensive search pursuant to a warrant' may be avoided. Id. at 228, 93 S.Ct. at 2048. `Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway or in a person's home or office, and under informal and unstructured conditions.' Id. at 231-232, 93 S.Ct. at 2050. The consent search as a tool of police investigation is viewed by the Court as a supplementary aid to routine informal investigatory work which `normally occur in a person's own familiar territory.'" Id. at 247, 93 S.Ct. at 2058.
It was thereafter observed, however, that upon the facts presented in Rothman, the "competing concern" of the policy favoring the "legitimate need" for warrantless searches was less significant than under "normal" consent search conditions. The Court stated:
"Here, Rothman was arrested and handcuffed and had been in incommunicado custody for some time when he opened the bags. He was by no means in an informal atmosphere or on familiar grounds. Rather, he was arrested, handcuffed, isolated in a strange place, given a formal Miranda warning and then interrogated by three officers over a period of *453 approximately two hours. Such an environment is akin to `the specter of incommunicado police interrogation in some remote station house' and is squarely `inapposite' to the questioning environment contemplated when consent searches were held permissible. Id. at 247, 93 S.Ct. 2041. In a situation such as this the government's burden to prove voluntary consent is increased. United States v. Page, supra, 303 F.2d 81, 84; Judd v. United States, 1951, 89 U.S.App.D.C. 63, 190 F.2d 649, 651." (Emphasis added.)
Moreover, the Court rejected the holding of the trial court that since Rothman was aware of his right to refuse consent, his consent was therefore voluntary. Judge Duniway stated that the holding of Schneckloth that knowledge of the right to refuse is but one factor to be taken into account "cuts both ways. The knowledge of the right to refuse consent is no longer a necessary condition for valid consent, but neither is it a sufficient condition. It is only an element to be considered as part of the `totality of circumstances'. What is required is a `careful sifting of the unique facts and circumstances of each case.' Schneckloth v. Bustamonte, supra, 412 U.S. at 233, 93 S.Ct. at 2050."
Finally, the Court concluded that under the totality of the circumstances test the psychological atmosphere was of crucial significance. It was observed:
"The psychological atmosphere in which the consent is obtained is a critical factor in the determination of voluntariness. Channel v. United States, 9 Cir., 1960, 285 F.2d 217, 220; Judd v. United States, supra, 190 F.2d 649, 651. In looking at the factual issue of voluntariness, the court must be aware of the `vulnerable subjective state' of the defendant as well as the possibility of `subtly coercive police questions.' Schneckloth v. Bustamonte, supra, 412 U.S. at 229, 93 S.Ct. at 2049, and the inherently coercive nature of custodial interrogation, Id. at 247, 93 S.Ct. 2041.
*454 "This case is another instance of a custodial investigation in which, `viewing the totality of the circumstances,' we are compelled to hold that the consent was not voluntary because it was systematically psychologically coerced." (Emphasis added.)
We must conclude, as did the Court in Rothman, that the psychological atmosphere in the instant appeal was critically suggestive. Appellant, age 23, had a tenth-grade education. His principal most recent work experience had been service in the United States Army.[12] He had no prior criminal involvement. To be sure, he had been administered Miranda warnings out on the highway immediately upon his arrest; and he was treated with civility in custody, as the trial court found. He was not handcuffed nor denied the opportunity to smoke nor did he complain of being deprived of food or drink or physical comforts.
It is manifest, however, that the testimony below presented other facts and circumstances of enormous psychological effect and of compelling significance:
1) There was no probable cause for appellant's arrest, as shown by the evidence and as conceded by the State;
2) He was in custody for at least one and a half hours in the presence of three uniformed State troopers and a prosecuting attorney;
3) He was detained in a strange environment, a room located in the State Roads Barn to which he and his truck had been separately transported;
4) He was subjected to questioning by at least two uniformed State troopers and by the prosecuting attorney;
5) In his presence, telephone calls were made after two o'clock in the morning to a local District *455 Court judge and the circumstances were such as reasonably to induce appellant's belief that the judge was enroute to issue a search warrant;
6) The search warrant papers were being typed in his presence after refusals on his part of several requests to consent to the search of his truck and appellant was told by the officer at the typewriter that less time would be consumed if he consented to the search;
7) The State police had previously "advised him what the law was" and had stated unequivocally that they could legally conduct the search with or without appellant's consent;
8) Appellant's ultimate oral and written consents were given after about one and a half hours in custody, at approximately 2:30 a.m., as he expressed it, and as the trial judge found, to save time. "... if I was already under arrest anyway, they are going to open it anyway so save a little time."
The Supreme Court of Oregon observed in State v. Douglas, supra, that the "subject of illegal searches and seizures is one of the most confused and difficult subjects of the law today" and noted also that the variety of views expressed on the subject of consent searches seems to defy reconciliation. Without taking issue with the views thus expressed, we think the clear teaching of Bumper, later expressly enunciated in Schneckloth and its progeny, including Rothman, supra, (and patently the rationale of Miranda) is that the will of the individual in custody may be overborne by less than physical force or threats, or an atmosphere charged with hostility, duress or violence. The lesson articulated by Bumper and Schneckloth in the area of search consents is that the individual subjected to the search may indeed be submitting rather than consenting, even in an atmosphere of relative cordiality because of the presence of psychological forces as potent and effectual in achieving a *456 "consent" as the traditional techniques and familiar instruments of physical "persuasion." We must, we find, be guided by the holding in Bumper that a consent which is actually simple acquiescence to lawful authority is not voluntary and, when the defendant is in custody, by the concern expressed in Schneckloth that "in examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents."
While each case must rest for decision upon its own facts and the "totality of the circumstances," an arrest without probable cause followed by custodial prodding for the arrestee's consent to a search, combined with police representations that the issuance of a warrant will be practically automatic these are circumstances calculated only to persuade the individual that insistence upon Fourth Amendment guarantees will secure for him merely a delay of the inevitable search rather than the protection against unreasonable search and seizure to which he is constitutionally entitled. Such a melange of fact and circumstance as was here presented is, we think, inherently coercive.[13]
The final capitulation of the appellant was the inevitable consequence of his "vulnerable subjective state" and the "subtly coercive" statements and conduct of his captors. In the totality of the circumstances above enumerated, his consent was lacking in voluntariness. It was error to deny the motion to suppress.
II
In the light of our determination that the contraband should have been suppressed, we find it unnecessary to consider the alternative claim that the evidence was insufficient to show a violation of Article 81, § 455 of the Annotated Code of Maryland prohibiting transportation of *457 unstamped cigarettes without the required shipping documents.
Additional probative evidence with respect to the legality of the search may be available to the State. Therefore, we shall remand for a new trial. Upon remand, the State will bear the burden of demonstrating to the satisfaction of the lower court that it can produce additional probative evidence. Such evidence shall be presented within such time as may be authorized by the lower court. If the lower court is satisfied with the presentation by the State, it shall hold a new trial; if not, it shall enter a judgment of acquittal. See Gray v. State, 254 Md. 385, 255 A.2d 5 (1969); Smith v. State, 8 Md. App. 163, 258 A.2d 755 (1969).
Judgments reversed; case remanded for a new trial; costs to be paid by Somerset County.
NOTES
[1] It appears that Trooper Hall was in communication with District Court Judge Lloyd Simpkins who also came to the State Roads Barn but apparently arrived after the consent had been given.
[2] Trooper Thomas testified that he himself clipped the seal on the lock but could not state definitely whether he or the appellant turned the key in the lock. Trooper Hall also recalled that Trooper Thomas cut the seal but was uncertain as to who unlocked the padlock.
[3] We have here no first-level fact findings by the lower court with respect to the psychological impact upon the appellant of being confronted by the three uniformed and armed State troopers and the Assistant State's Attorney, their obvious consensus that a search warrant would issue and the additional circumstance that a judge who had been telephoned from the place of custody was apparently enroute from his home at 2:30 in the morning in order to sign the warrant.
[4] For a comprehensive presentation of consent cases, see Annotation, "Validity of Consent to Search Given by One in Custody of Officers", 9 A.L.R.3d 858 (1966).
[5] See, Note 15, 391 U.S. 550 where the majority opinion states that no warrant was ever returned and "there is no way of knowing the conditions under which it was issued, or determining whether it was based upon probable cause."
[6] Distinguishing Bumper, the U.S. Court of Appeals for the Fifth Circuit in Hoover v. Beto, 467 F.2d 516 (1972), held that the search of appellant's home was not constitutionally invalid under Aguilar v. Texas and quoted with approval language of the lower court that, unlike Bumper where "the party in question was a 66 year old Negro widow of patently limited education ... petitioner here was himself a lawyer with extensive criminal experience in criminal law and its practical realities. While this is not necessarily a controlling distinction here, it is a circumstance." 467 F.2d at 522.
[7] Schneckloth is analyzed critically in 12 Am.Crim.L.Rev. 231-249 (1974); 52 N.C.L.Rev. 644-654 (1974); and 49 Notre Dame Lawyer 891-906 (1974).
[8] In contrast with the instant appeal, the Court observed that "the present case does not require a determination of the proper standard to be applied in assessing the validity of a search authorized solely by an alleged consent that is obtained from a person after he has been placed in custody. We do note, however, that other courts have been particularly sensitive to the heightened possibilities for coercion when the `consent' to a search was given by a person in custody." (n. 29, 412 U.S. at 241).
[9] The California State Courts had followed these principles in affirming the respondent's conviction but the Court of Appeals for the 9th Circuit remanded the case for an evidentiary hearing because the prosecution had failed to prove that consent to the search had been made with the understanding that it could be freely withheld.
[10] We accept, of course, the holding of Anderson that an illegal arrest does not, without more, vitiate a free and voluntary consent. We note, however, the language of the U.S. Court of Appeals for the District of Columbia Circuit in Judd v. U.S., 190 F.2d 649 (1951), a case cited in Schneckloth as one of those dealing with consents given while in custody:
"This burden on the Government is particularly heavy in cases where the individual is under arrest. Non-resistance to the orders or suggestions of the police is not infrequent in such a situation; true consent, free of fear or pressure, is not so readily to be found."
[11] The Court of Appeals reversed the conviction of Watson because it held there was an illegal arrest (made without a warrant), and additionally that his consent to search given while in custody after his arrest was not voluntary.
[12] He had served in Vietnam and had recently been honorably discharged and married
[13] It seems probable that cases discussed supra, holding that the consents were voluntary, e.g., Boukater, Douglas and Faruolo, would have reached contrary results given the circumstances here noted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263662/ | 479 F.Supp. 160 (1979)
FEDERAL TRADE COMMISSION, Petitioner,
v.
TRW, INC. and its unincorporated division, TRW Credit Data, Respondents.
Misc. No. 79-0122.
United States District Court, District of Columbia.
September 6, 1979.
*161 Warren S. Grimes, F. T. C., Washington, D. C., for petitioner.
Robert H. Rawson, Jr., Washington, D. C., for respondents.
MEMORANDUM AND ORDER
HAROLD H. GREENE, District Judge.
This is a proceeding under Section 9 of the Federal Trade Commission Act, 15 U.S.C. § 49, and Section 621(a) of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681s(a), to enforce a subpoena duces *162 tecum.[1] Petitioner, the Federal Trade Commission (FTC), seeks the documents as part of an ongoing investigation to determine whether respondent, TRW, Inc. (TRW), is engaging in practices which violate various sections of the FCRA.
Two groups of documents are at issue in this proceeding.[2] The first group, consisting of documents # 001-165 and 183-184, were withheld by TRW on grounds of a qualified "self-evaluative" privilege. The second group, consisting of documents # 180-182, were withheld on grounds of attorney-client privilege. As explained below, the Court does not find either of these grounds to be sufficient in this case.
Documents # 001-165 and 183-184 consist of reports and responses compiled by TRW in the course of a National Consumer Relations Audit which, according to TRW, has been conducted since 1973 to ensure compliance with applicable laws by: (1) maintaining uniform and consistent procedures in its numerous branch consumer relations offices, and (2) developing an audit procedure to provide management and legal counsel with valuable and necessary information to be used in formulating new and improved policies. TRW argues that since the documents contain self-analysis and self-criticism and have been treated some-what confidentially within TRW, they are properly withheld under the "self-evaluative" privilege, which promotes the strong public policy of encouraging such internal evaluations.
The FTC argues that there is no recognized "self-evaluative" privilege, particularly in the context of a law enforcement agency's subpoena enforcement proceeding, and that, in any case, these documents would not fall within its purview. The Court agrees.
While in a line of cases, beginning with Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C.1970), district courts have, in the exercise of their discretion, denied discovery of certain "self-evaluative" materials to private litigants where an overwhelming public interest favored their continued confidentiality,[3] appellate courts have not done so. See, e. g., Dixon v. So. Pine Street Corporation, 516 F.2d 1278 (2d Cir. 1975). As was pointed out in Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518, 522 (E.D.Tenn. 1977), "the qualified privilege . . . at the most remains largely undefined and has not generally been recognized. . . ."
Moreover, there are no cases in which a law enforcement agency, seeking documents pursuant to its statutory subpoena power in the course of an investigation, has been denied such discovery.[4] In that *163 regard, the courts have uniformly refused to recognize a "privilege." See, e. g., Reynolds Metal Co. v. Rumsford, 564 F.2d 663, 667 (4th Cir. 1976); United States v. Noall, 587 F.2d 123, 125-26 (2d Cir. 1978). Compare Banks v. Lockheed-Georgia Co., 53 F.R.D. 283 (N.D.Ga.1971) (private discrimination plaintiffs cannot obtain preliminary report analyzing defendant company's equal employment opportunity problems and affirmative programs) with Reynolds Metals Co. v. Rumsfeld, supra (EEOC can obtain copies of civil rights compliance program and related documents).
Even if this Court were to recognize the privilege, however, as the cases applying it point out, it is only a qualified one, and TRW's withheld documents would not fall within its purview.[5] In most instances, the best sources of information about corporate activities are corporate informational mechanisms designed to provide management with the information necessary to make informed business decisions. The documents at issue here contain information at the heart of the FTC's investigation. There is always an arguable need for confidentiality, and elements of self-evaluation and analysis, with respect to these sources. In that regard, the Court does not accept TRW's naked assertion that ordering their disclosure will have a "chilling effect" on future self-evaluative activities. It may be presumed that corporations will continue to monitor themselves to ensure their compliance with the law, as they have done in the past, without the added incentive of a "selfevaluative" privilege.
For these reasons, the Court holds that Documents # 001-165 and 183-184 are not privileged and must be produced. In order to protect any personal expectations of privacy which may inhere in them, however, the Court will order identifying information to be deleted from employee evaluations.
Documents # 180-182 consist of a proposal for work to be performed for TRW by the Stanford Research Institute (SRI), a preliminary draft report, and a final report delivered to TRW. TRW seeks to withhold these documents based upon the attorney-client privilege, on the ground that they assisted TRW's lawyers in evaluating TRW's credit reporting system and in preparing for possible litigation with the FTC. This claim is not persuasive.
First, even assuming the documents were created to secure legal advice, the findings were sufficiently circulated within TRW as to negate the intention of confidentiality. When a document is prepared for simultaneous review by non-legal as well as legal personnel, it is not considered to have been prepared primarily to seek legal advice and the attorney-client privilege does not apply. United States v. International Business Machines Corp., 66 F.R.D. 206, 213 (S.D.N.Y.1974).[6]
More importantly, however, the documents were prepared by an entity outside of TRW. The Attorney-Client privilege does not extend to information and statements obtained by an attorney from third persons. 8 Wright & Miller, Federal Practice and Procedure: Civil § 2017 at 137 (1970); Bird v. Penn Central Co., 61 F.R.D. 43, 46-48 (E.D.Pa.1973);[7]Jack Winter, Inc. *164 v. Koratron Co., 54 F.R.D. 44 (N.D.Calif. 1971). Thus, the privilege does not extend to information disclosed to an attorney by a person outside the organization of a corporate client and its affiliates. United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass.1950); City of Philadelphia v. Westinghouse Electric Corp., 210 F.Supp. 483, 484 (E.D.Pa.1962). The Stanford Research Institute is such an external entity.
For these reasons the Court holds that Documents # 180-182 are not privileged and must be produced.
Accordingly, it is this 5th day of September, 1979,
ORDERED That petitioner's application to enforce compliance with its subpoena duces tecum be and it is hereby granted, and it is further
ORDERED That respondent produce forthwith to petitioner Documents # 001-165 and 180-184 as defined herein.
NOTES
[1] The subpoena was originally issued on May 21, 1976, and has since been revised.
[2] A third group, consisting of documents # 166-179, were withheld on grounds of attorney-client privilege. As the result of information produced in TRW's opposition to this enforcement proceeding, FTC has withdrawn its petition to enforce the subpoena with respect to these documents.
[3] Thus, these courts have fashioned a "qualified self-evaluative" privilege. See Bredice, supra; Gillman v. United States, 53 F.R.D. 316 (S.D.N.Y.1971); Banks v. Lockheed-Georgia Co., 53 F.R.D. 283 (N.D.Ga.1971); New York Stock Exchange v. Sloan, 22 Fed.R.Serv.2d 500 (S.D.N.Y.1976). A contrary line of more recent cases declines to acknowledge or apply such a privilege. See, e. g., Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518 (E.D.Tenn.1977); Davidson v. Light, 79 F.R.D. 137, 139 (D.Colo.1978); Wright v. Patrolmen's Benevolent Association, 72 F.R.D. 161 (S.D.N.Y.1976); Ligon v. Frito Lay, 82 F.R.D. 42 (N.D.Texas 1978). As the court noted in Robinson v. Magovern, 83 F.R.D. 79 (W.D.Pa.1979), most of the cases recognizing the privilege preceded the Supreme Court decision in United States v. Nixon, 418 U.S. 683, 709-10, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974), which emphasized that "exceptions to the demand for every man's evidence are not lightly created nor expansively construed." See also Wright v. Patrolmen's Benevolent Association, 72 F.R.D. 161, 164 (S.D. N.Y.1976).
[4] Section 9 of the Federal Trade Commission Act gives the FTC the power to compel by subpoena all "documentary evidence relating to any matter under investigation." 15 U.S.C. § 49. Although traditional privileges, such as attorney-client or work-product, may apply, United States v. McKay, 372 F.2d 174 (5th Cir. 1967), novel privileges generally have not been applied absent a specific statute or acquiescence by the agency. See F.T.C. v. St. Regis Paper Company, 304 F.2d 731 (7th Cir. 1962); Falsone v. United States, 205 F.2d 734 (5th Cir. 1953).
[5] For example, in Bredice, supra, 50 F.R.D. at 250-51, the Court explained that an overwhelming public interest favored encouraging unimpeded the flow of ideas and advice among doctors who "have a responsibility for life and death decisions." Subjecting them to the discovery process without exception would end such deliberations.
[6] Indeed, mere disclosure to a third party waives the privilege. Philadelphia Electric Co. v. Anaconda American Brass Co., 275 F.Supp. 146 (E.D.Pa.1967).
[7] The only recognized exception to the rule that the communication must be directly between client and attorney, is for ministerial agents of the attorney (such as clerks or stenographers) whose assistance is essential in the ordinary performance of legal services or of the client (such as messengers or interpreters) who facilitate transmission of the communication. 8 Wigmore, Evidence § 2301 at 583; § 2317 at 618 (McNaughton Rev. 1961). Even if this Court were to accept TRW's argument that the exception should be extended to non-ministerial agents, the Stanford Research Institute would not fall within that exception. The Court does not view the independent compilation and analysis performed by SRI as the equivalent of simply "translating" data on hand into language which TRW could readily comprehend. Compare United States v. Koval, 296 F.2d 918 (2d Cir. 1972) (accountant); United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975) (psychiatrist); United States v. Judson, 322 F.2d 460 (9th Cir. 1963) (accountant). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263679/ | 479 F.Supp. 1263 (1979)
Douglas K. KNUTSON, Arlen N. Benham, Geoffrey Beaty, Laura Duarte, Evan Francis Williams, Joseph W. Berthiaume, Kenneth W. Jackson, Jean E. Nyland, Daniel A. Dutra, Willard B. Kittredge, Robert A. Dutra, Gayle C. Ely, Plaintiffs,
v.
The DAILY REVIEW, INC., a corporation, Bay Area Publishing Co., a corporation, Floyd L. Sparks, an Individual, William Chilcote, an Individual, Dallas Cleland, an Individual, John Clark, an Individual, Carl Felder, Individually and doing business as Felder Enterprises, Defendants.
No. C-73-1354-CBR.
United States District Court, N. D. California.
October 18, 1979.
*1264 *1265 *1266 Timothy H. Fine, Patrick J. Carter, G. Joseph Bertain, Jr., Edward M. Stadum, San Francisco, Cal., for plaintiffs.
Broad, Khourie & Schulz, Michael N. Khourie, Thomas Paine, San Francisco, Cal., for defendants.
ORDER AWARDING ATTORNEYS' FEES
RENFREW, District Judge.
In this action, plaintiffs move for an award of attorneys' fees in the amount of approximately $200,000 following a series of proceedings before this Court and the Court of Appeals for the Ninth Circuit. The underlying action was initiated in August, 1973. Plaintiffs, independent newspaper dealers, brought suit against defendant publishers and certain officers of the newspapers they distributed alleging various violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2. At the conclusion of the liability portion of a bifurcated trial on September 23, 1974, this Court rejected three of the plaintiffs' claims[1] but found that defendants had imposed an illegal vertical price restraint in violation of Section 1 of the Sherman Act. Knutson v. Daily Review, Inc., 383 F.Supp. 1346, 1357 (N.D. Cal.1974). However, following the damages trial, the Court concluded that plaintiffs failed to prove either the fact or measure of their injury inasmuch as the Court was not persuaded that plaintiffs would have raised their prices and thus obtained greater profits in the absence of the restraint and thus declined to award any damages despite the finding on § 1 liability. 383 F.Supp. at 1384. The Court did award, however, $7,500 in attorneys' fees to plaintiffs based upon the court's inherent equitable powers in compensation for plaintiffs' proof of the illegal price restraint and for obtaining equitable relief of preserving employment offers extended to plaintiffs by defendants.
On appeal, the Court of Appeals for the Ninth Circuit affirmed in part and reversed this Court's conclusion on the issue of damages in connection with the price-fixing violation. The Court of Appeals held that plaintiffs need only prove some damages to establish the fact of damage, and that once shown, the amount of damage could be established according to a relaxed standard of proof. Knutson v. Daily Review, Inc., 548 F.2d 795, 813 (9 Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2977, 53 L.Ed.2d 1094 (1977). The court concluded that the Daily Review plaintiffs had met their burden of establishing the fact of damages and that the evidentiary infirmities cited by this Court related only to the amount of damages. But the court also held that the Argus plaintiffs had completely failed to prove even the fact of damages. 548 F.2d at 812-813. In remanding the case of the Daily Review plaintiffs back to the district *1267 court, the court established a novel rule governing the burden of proof on the damage issue. In order to ease the nearly "insurmountable barrier" created by this Court's original analysis, the majority established a presumption that the dealers' pricing policies would have been guided by the principle of informed profit-maximization in the absence of the price restrictions illegally imposed by defendants. 548 F.2d at 812. The opinion, however, left defendants the opportunity to "show plaintiffs would have kept their prices beneath a maximizing point despite their violative behavior." Ibid.
Following a second trial on damages upon remand, this Court concluded that plaintiffs were entitled only to nominal damages. Knutson v. Daily Review, Inc., 468 F.Supp. 226, 228 (N.D.Cal.1979). Although the Court concluded that the law of the case mandated a finding of the fact of damages, id. at 232, the Court found that defendants successfully rebutted the presumption that plaintiffs would have raised their prices in pursuit of profit-maximization with two arguments: First, the evidence indicates that plaintiffs would have delayed for a substantial period reaction to rising market prices; and second, plaintiffs were aware that if they had raised their prices, the publisher would have been forced to take some action jeopardizing plaintiff dealers' independent status, and thus voluntarily would have kept their retail prices below the profit-maximizing price. 468 F.Supp. at 236-239. Thus plaintiff failed to prove the amount of damages. Id. at 240. Accordingly, each of the six Daily Review plaintiffs was awarded nominal damages of one dollar trebled to three dollars. Id. at 240-241.
Following that most recent proceeding and decision, plaintiffs moved for an award of attorneys' fees pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15, which provides:
"Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."
Defendants do not dispute that while damages recovered may be insubstantial, plaintiffs are nevertheless entitled to "reasonable attorney's fees" under the Act. Any argument to the contrary would be without merit. The Court's finding of liability and award of nominal damages clearly implies that plaintiffs were in fact "injured in [their] business or property by reason of anything forbidden in the antitrust laws" within the meaning of Section 4, thereby entitling them to "a reasonable attorney's fee." Also, the award of reasonable attorney's fees is necessarily concomitant with this Court's decision that plaintiff's establishment of liability and the fact of damages entitled them to treble damages under 15 U.S.C. § 15 since that statute makes no distinction between the applicability of the treble damages and attorney's fees provisions therein. Thus, although recovery of damages is a prerequisite to an award of attorney's fees, see Koratron Co. v. Lion Uniform, Inc., 409 F.Supp. 1019, 1029 (N.D. Cal.1976); Locklin v. Day-Glo Color Corp., 378 F.Supp. 423, 428 (N.D.Ill.1974), once treble damages are recovered, the award of reasonable attorney's fees is mandatory. Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 n.2 (3 Cir. 1976), cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976). Such fee awards obviously comport with the underlying purpose of Section 4 of facilitating the private enforcement of substantive antitrust policies, which is the "bulwark of antitrust enforcement." Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 139, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). See Hammond, Stringent New Standards for Awards of Attorney's Fees, 32 Bus.Law. 523, 524-525 (1977); Comment, 60 Cal.L.Rev. 1656, 1656 (1972). Thus courts have awarded such fees where plaintiffs have recovered only nominal damages. See Morning Pioneer, Inc. v. Bismarck Tribune Co., 493 F.2d 383, 390 (8 Cir. 1974), cert. *1268 denied, 419 U.S. 836, 95 S.Ct. 64, 42 L.Ed.2d 63 (1974); Osborn v. Sinclair Refining Co., 207 F.Supp. 856, 864 (D.Md.1962), rev'd on other grounds, 324 F.2d 566, 575 (4 Cir. 1963).[2]See also Newberry v. The Washington Post Co., 1977-2 CCH Trade Cases 73,131, 73,133 (D.D.C.1977), 438 F.Supp. 470, 483 (D.D.C.1977) ($140,000 in fees awarded where 7 of the 10 plaintiffs recovered only nominal damages); Finley v. Music Corp. of America, 66 F.Supp. 569, 571-572 (S.D.Cal. 1946) (reasonable attorney's fee awarded where no damages were recovered);[3]cf. Burt v. Abel, 585 F.2d 613, 617-618 (4 Cir. 1978) (fact of nominal damage recovery does not diminish plaintiff's eligibility for attorney's fees in civil rights action); Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1 Cir. 1979) (same).
The issue then is not whether plaintiffs are entitled to fees, but what amount constitutes "reasonable attorney's fees" in the instant case.
I. APPLICABLE LAW
Traditionally, in determining the amount of attorney's fees to be awarded in antitrust cases, the courts have placed substantial emphasis on the size of the recovery; indeed, some have apparently applied a straight percentage approach. See, e. g., Webster Motor Car Co. v. Packard Motor Car Co., 166 F.Supp. 865 (D.D.C.1955), rev'd and cross appeal concerning attorney's fees dismissed as moot, 100 U.S.App.D.C. 161, 243 F.2d 418 (1957), cert. denied, 355 U.S. 822, 78 S.Ct. 29, 2 L.Ed.2d 38 (1957). However, the percentage fee approach has increasingly come under criticism, given its insensitivity to individual differences in antitrust suits and the professional skill and complexity of work involved in a particular case. See City of Detroit v. Grinnell Corp., 495 F.2d 448, 469 (2 Cir. 1974); In re Gypsum Cases, 386 F.Supp. 959, 962 (N.D.Cal. 1974), aff'd 565 F.2d 1123 (9 Cir. 1977); Trans World Airlines, Inc. v. Hughes, 312 F.Supp. 478, 484 (S.D.N.Y.1970, aff'd and modified on other grounds, 449 F.2d 51, 79 (2 Cir. 1971), rev'd on other grounds, sub nom. Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577, 1973); Illinois v. Harper & Row Publishers, 55 F.R.D. 221, 224 (N.D.Ill. 1972). Moreover, the percentage approach may not comport with the legislative purpose underlying Section 4 of the Clayton Act of encouraging the private vindication and enforcement of the antitrust laws. See Phillips v. Crown Central Petroleum Corp., 426 F.Supp. 1156, 1170 (D.Md.1977), vacated without prejudice and remanded on other grounds, 556 F.2d 702 (4 Cir. 1977). Where a case involves relatively low monetary damages but nevertheless contains potentially important legal precedent, the percentage approach may offer insufficient incentive for the private bar to prosecute such litigation. See Comment, 60 Cal.L. Rev. 1656, 1669-1670 (1972).
In response to the inadequacy of that approach, the courts have generally articulated a number of factors to be considered in determining reasonable attorneys' fees, the amount recovered being relegated to only one of many factors. For instance, in Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 221 (9 Cir. 1964), the Court of Appeals for this Circuit adopted the following factors:
"(1) whether plaintiff's counsel had the benefit of a prior judgment or decree in a case brought by the Government, (2) the standing of counsel at the barboth counsel receiving the award and opposing counsel, (3) time and labor spent, (4) magnitude and complexity of the litigation, (5) responsibility undertaken, (6) the amount recovered, (7) the knowledge the court has of the conferences, arguments *1269 that were presented and of work shown by the record to have been done by attorneys for the plaintiffs prior to trial, (8) what it would be reasonable for counsel to charge a victorious plaintiff, and (9) what contribution shall be made by the defendant toward the fees of plaintiff's counsel."
The relative weight accorded to each factor would vary among particular cases and rested "largely upon the good judgment of the district court." Ibid.[4] The court acknowledged that although such fees are usually fixed substantially below actual damages, there may be cases in which the fee exceeds the damage recovery. Ibid.
Most recently, a new method of determining reasonable fee awards has emerged. The approach, called the "lodestar" analysis, was originally articulated by the Third Circuit in Lindy Bros. Bldrs., Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167-169 (3 Cir. 1974) (hereinafter referred to as "Lindy I"), and Lindy Bros. Bldrs., Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 112-118 (3 Cir. 1976) (hereinafter referred to as "Lindy II"), and since followed in a number of other circuits.[5] Under the lodestar approach, the court must first determine the number of hours reasonably spent by plaintiff's attorney on matters upon which plaintiff was successful. Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1216 (3 Cir. 1978).[6] The value of the attorney's time, which is generally reflected in his or her *1270 normal billing rate, is then ascertained. Where a number of attorneys are involved, the court may find it necessary to use different rates reflecting their different amounts of skill, expertise, experience, and reputation. Lindy I, supra, 487 F.2d at 167. Multiplying the hours spent by the determined rates, the court arrives at an amount found to constitute reasonable compensation, and this constitutes the "lodestar" of the court's fee determination. Id. at 168. The relatively objectively determined "lodestar" is then subject to adjustment (by what have been termed "multipliers") before arriving at the final award in recognition of at least two other more subjective factors. Ibid. The first is the contingent nature of success. Where plaintiff's attorney is not guaranteed payment but takes the case substantially on a contingency basis, the attorney must receive additional compensation for the risk undertaken.[7]See Hammond, Stringent New Standards for Awards of Attorney's Fees, 32 Bus.Law. 523, 527-528 (1977). The second factor is the extent to which any exceptionally positive or negative quality of an attorney's work mandates increasing or decreasing the lodestar. Lindy I, supra, 487 F.2d at 168. A fact to be considered in making such adjustment is the amount actually recovered when compared to defendant's potential liability. Lindy II, supra, 540 F.2d at 118.
See Hughes v. Repko, 578 F.2d 483, 490-492 (3 Cir. 1978) (Rosenn, J., and Garth, J., concurring), in which the Third Circuit applied the lodestar analysis in a civil rights action, two members of the panel expressly suggested a third stage in the analysis (i. e., a "post-Lindy discretionary adjustment," id. at 492) in which the district court would have the discretion to make an additional adjustment taking into account the governmental policies underlying the applicable fee statute and substantive rights involved,[8] and such factors as the customary fee for similar work, the amount received in damages, and fee awards made in similar cases in order to assure the overall fairness of the award. In making such an adjustment, however, the district court must properly articulate the factors considered.[9]
The Court of Appeals for this Circuit has yet to apply the lodestar analysis to an attorney's fee claim under Section 4 of the Clayton Act. However, the Ninth Circuit panel in Brandenburger v. Thompson, 494 F.2d 885, 890 n.7 (9 Cir. 1974), in remanding the case to the district court, suggested that in determining the amount of reasonable fees to be paid to plaintiff's attorney in a civil rights action, the court might consider the factors listed in Lindy I.[10] Following that suggestion, a number of the district court courts in this Circuit have utilized the lodestar analysis.[11] Absent any authority from the Court of Appeals in this Circuit *1271 contrary to the court's suggestion in Brandenburger,[12] the Court chooses to apply the lodestar analysis to the instant case.[13]
The Court additionally concludes that it is appropriate to apply the three-stage analysis suggested in Hughes; the merit in utilizing the Hughes approach is demonstrated by the unique posture of the case in which plaintiffs established defendants' liability and fact of damages, but were awarded only nominal damages because of their failure to prove the measure of damages. While low recovery in contrast with defendant's potentially large liability sometimes reflects upon the remarkable quality of plaintiff's counsel work mandating a decrease adjustment through the quality multiplier, Merola v. Atlantic Richfield Co., 515 F.2d 165, 168-169 (3 Cir. 1975); Lindy I, supra, 487 F.2d at 168, the small recovery by the Daily Review plaintiffs is attributable not to "an unusual degree of skill [or the lack thereof]," Lindy II, supra, 540 F.2d at 118, but instead to the given facts of the case. Yet, while the quality multiplier does not countenance these particular circumstances, the remarkable size of recovery cannot be ignored in the determination of awardable fees. Reasonableness of awards under Section 4 of the Clayton Act implies some relationship between the magnitudes of the award and damages recovered.[14] While the courts have increasingly eschewed mechanical application of the percentage *1272 of recovery methods of computing fees, the intent of the lodestar analysis was "minimizing the important role traditionally played by the magnitude of the recovery," Grinnell I, supra, 495 F.2d at 471, and not to eliminate it totally from the analysis. See In re Clark Oil, supra, 422 F.Supp. at 511. Moreover, this additional adjustment is necessary in order to comprehend all of the factors listed in Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d at 717-718, the case cited with Lindy I in Brandenburger. See Hughes, supra, 578 F.2d at 492 n.6 (Garth, J., concurring).[15]
II. APPLICATION OF THE LODESTAR ANALYSIS
A. Determining the Reasonable Number of Hours to Be Included in the Lodestar
Plaintiffs seek attorney's fees in connection with a number of discrete items and proceedings which will be dealt with in seriatim. Where different rates of compensation are applicable as for paralegal services, the allowable time will be separated. See In re Anthracite Coal Antitrust Litigation, 1979-1 CCH Trade Cases ¶ 62,437, at 76,586-76,587 (M.D.Pa.1979); 131 P.L.I. at 797.[16]
1. Preparation of the Lawsuit through the Initial Decision by the District Court (7/73-9/74)
This Court already determined on November 6, 1974, that plaintiffs should be awarded $7,500 in attorney's fees representing 100 hours in connection with their establishing a per se violation of Section 1 of the Sherman Act. The Court continues to adhere to its initial determination. Plaintiffs request that hours spent in meeting an affirmative defense tendered by defendants and rejected by both the District Court, 383 F.Supp. at 1355-1356, and the Ninth Circuit Court of Appeals, 548 F.2d at 806 n.12, i. e., that the price fixing agreement should be judged under the rule of reason rather than the per se standard, should be included in the lodestar. Although generally, time spent by plaintiffs in overcoming affirmative defenses are compensable where plaintiffs ultimately prevail on such claims and issues,[17] plaintiffs' contentions were argued at the November 6, 1974 hearing and the Court indicated then that the hours spent in dealing with the defense had been considered in the Court's initial $7,500 attorney's fee award.
The original trial was bifurcated, and plaintiffs now request fees in connection with the initial damages proceedings after the Court of Appeals reversed the Court's judgment for defendants on the damage issue. Plaintiffs estimate that their attorneys spent approximately 573 hours on this phase of the case. They acknowledge, however, that roughly 50% of the work pertained to the five Argus dealers who were unable to prove even the fact of damage; thus, plaintiffs seek compensation for 286 *1273 hours representing the time spent on the successful Daily Review plaintiffs. However it is now evident that these plaintiffs were only able to prove the fact and not the measure of damages. As analyzed by the Court of Appeals, 548 F.2d at 813, the key evidence establishing the fact of damages was the demonstration that "despite circulation drops their net profits would have been higher in some amount." Based upon the supporting affidavits submitted by plaintiffs and the Court's familiarity with the proceedings, the Court finds that 100 hours represents a reasonable amount of time spent on developing and establishing that evidence.
2. Equitable Relief (9/10/74-11/6/74)
Subsequent to the Court's decision after the first trial, further proceedings were held regarding certain equitable relief sought by plaintiffs. Plaintiffs seek attorneys' fees in connection with their success in obtaining a court order mandating that the offer of employment to plaintiff dealers be held open in the absence of good cause, see Knutson v. Daily Review, Inc., 401 F.Supp. 1374 (N.D.Cal.1975). That order, orally issued on October 30, 1974, effectively extended the equitable relief granted by this Court in its initial opinion. 383 F.Supp. at 1389. The $7,500 attorney's fee award granted a week later on November 6, 1974, already accounted for the obtained relief. Therefore, the additional 19 hours claimed in this matter cannot be included in the lodestar.[18]
3. Proceedings in the Court of Appeals (9/25/74-2/11/77)
It is well established that time spent on appeal may be included in a fee award under Section 4 of the Clayton Act. Perkins v. Standard Oil Co. of Calif., 474 F.2d 549, 553 (9 Cir. 1973), cert. denied, 412 U.S. 940, 93 S.Ct. 2778, 37 L.Ed.2d 400 (1973); Pitchford Scientific Instruments v. Pepi, 440 F.Supp. 1175, 1178 (W.D.Pa.1977), aff'd 582 F.2d 1275 (3 Cir. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 242 (1979); Plaintiffs allege that a total of 241 hours were spent by Messrs. Bertain and Fine on appeal, but seek compensation for only one-half of that time which is roughly allocable to the prosecution of the successful matters, i. e., reversal of the district court's findings as to damages. Factoring out unsuccessful motions and that portion of the main briefing devoted to unsuccessful issues, see Vandervelde, supra, 344 F.Supp. at 160, the Court finds that 120 hours representing Messrs. Bertain and Fine's time constitutes the just and reasonable allowance.[19]
Plaintiffs also argue that approximately 60 hours spent by Mr. Carter on a supplemental brief filed in the Court of Appeals be included. However, that brief sought certain equitable relief which was not granted by the Court of Appeals. Plaintiffs fail to demonstrate how that brief materially contributed to their limited success *1274 on appeal.[20] Accordingly, that time will be disallowed from the computation.[21]
4. Proceedings in the Supreme Court
Both parties petitioned for and were denied writ of certiorari in the United States Supreme Court. Plaintiffs assert that Mr. Fine spent 48 hours in preparing the petition and a brief in opposition to defendants' petition. Although the district court in Pitchford Scientific Instruments Corp., supra, 440 F.Supp. at 1178, refused to exclude services arising out of unsuccessful certiorari proceedings, such compensation directly conflicts with the principle that fee awards should "not include compensation for time expended upon theories of liability or overdrawn items of damage ultimately rejected," Vandervelde, supra, 344 F.Supp. at 160. Plaintiffs' efforts in petitioning for certiorari did not contribute to their success nor to the resolution of the issues in the case, and therefore do not warrant compensation. However, their opposition to defendants' petition was successful inasmuch as their limited victory in the Court of Appeals was effectively sustained. The Court includes 24 hours of Mr. Fine's time attributable to the preparation of that document in the lodestar.[22]
5. Arbitration (1/75-6/75)
In the judgment following the first trial, the Court exercised its equitable powers in ordering that certain offers of employment by defendants be left open until a date certain. Subsequently, certain of the plaintiffs were refused employment. The issue of good cause for the refusals was submitted to an arbitrator who upheld defendants' refusal. Plaintiffs now seek fees for 55 hours spent by Mr. Fine in those arbitration proceedings.
The Court concludes that these fees must be denied. The arbitration proceedings were part of the Court's relief based solely upon its equitable powers and not in direct enforcement of the antitrust laws. Thus fees could not be awarded under Section 4 of the Clayton Act. See Baughman, supra, 583 F.2d at 1215-1216. Relegated to the Court's equitable power to grant attorney's fees, the lack of any "overriding consideration of justice," Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-718, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), especially in light of plaintiffs' failure to substantially prevail in those proceedings, compels the denial of attorney's fees. Furthermore, the Court notes its earlier denial of plaintiffs' motion for such fees, Minuted Order filed November 25, 1974, and remains convinced of the correctness of that ruling.
6. District Court Proceedings Regarding Modification of Judgment (May-July 1975)
On July 8, 1975, the Court modified its judgment in deleting paragraph 7 which required defendants to continue their offer of employment to plaintiffs. The Court found that defendants had not violated the terms of the judgment and that the restrictions placed on defendants were no longer warranted by existing conditions. The Court did award severance pay to a number *1275 of the individual plaintiffs. Plaintiffs seek attorney's fees in relation to services rendered in those proceedings. Again, however, it is difficult to conclude that plaintiffs substantially prevailed since the Court discontinued the advantageous equitable relief previously obtained by plaintiffs. More importantly, as discussed above, those proceedings were not part of the prosecution of the substantive antitrust claims and therefore are not compensable under the Clayton Act. The Court refuses to exercise its discretion in plaintiffs' favor.
7. Damage Retrial (6/1/77-10/13/78)
Plaintiffs claim a substantial number of hours devoted to the damages retrial mandated by the Court of Appeals remand. Although plaintiffs' effort was met with only limited success, the Court's general conclusion that the nominal recovery does not bar applicability of Section 4 of the Clayton Act requires that a reasonable number of hours for services performed in preparation of the second trial be included in the calculation. Such fees cannot be denied on the grounds of duplication of work occasioned by the two trials since
"[i]t seems clear that it is reasonably necessary to retry a case when an appellate court directs a retrial. Counsel are not to be penalized by being required to work for nothing as punishment for failure to know at the first trial what the Court of Appeals was going to do." Pitchford Scientific Instruments Corp., supra, 440 F.Supp. at 1178.
Moreover, whereas the Court may disallow credit for hours spent on a second trial where retrial is caused solely by the prevailing party's counsel's error, Baughman, supra, 583 F.2d at 1216,[23] the retrial in the instant case is not attributable to any fault on the part of plaintiffs or their counsel. In fact, in view of the Court of Appeals encouraging language regarding the burden of proof as to damages, all of counsel's efforts devoted to retrial certainly were in the normal exercise of reasonable professional diligence. Given the reasonable basis for urging the establishment of damages provided by the Court of Appeals opinion, "any exclusion of the house [sic] spent developing this evidence would be unfair." DeFilippo v. Ford Motor Co., 378 F.Supp. 456, 472-473 (E.D.Pa.1974),[24]rev'd on other grounds, 516 F.2d 1313, 1321 (3 Cir. 1975), cert. denied, 423 U.S. 912, 96 S.Ct. 216, 46 L.Ed.2d 141 (1975).
For services rendered in connection with this portion of the case, plaintiffs claim a total of 320 hours for Messrs. Bertain, Fine, and Stadum, 22.5 hours for Mr. Carter, and 963.75 hours for Messrs. Beaty and Norton who were employed by counsel as paralegal assistants. The factual issues were relatively complex especially in light of the ambiguity of the legal issues and standards applicable on remand. See, e. g., the discussion of this Court's interpretation of the Ninth Circuit opinion at 468 F.Supp. at 232-235. Taking into account the extent of additional discovery and research reasonably necessitated by the retrial, considering the supporting affidavits, and using as a rough guide for comparison the number of hours the Court allowed in proving the Section 1 liability and the fact of damages, the Court concludes that all of the lawyers' time and the paralegals' time may be reasonably included in the lodestar.[25]
*1276 B. Determining the Rate of Compensation
After determining the number of compensable hours, the Court must then attempt to value those services. As the Court pointed out in Lindy I, supra, 487 F.2d at 167, "The value of an attorney's time generally is reflected in his normal billing rate. A logical beginning in valuing an attorney's services is to fix a reasonable hourly rate for his timetaking account of the attorney's legal reputation and status (partner, associate)." Plaintiffs seek compensation for Messrs. Bertain, Fine, and Stadum at $75 per hour before November 6, 1974 (when the Court made the initial fee award using the $75 per hour rate) and $90 per hour thereafter. They contend that $90 per hour represented the prevailing rate in San Francisco for antitrust counsel of comparable experience.[26] Although $90 an hour is probably not an exorbitant figure,[27] the fact is that throughout the course of their involvement in this litigation,[28] Messrs. Bertain, Fine, and Stadum's normal billing rate has been $75 an hour. Stadum Affidavit, p. 2; Second Affidavit of Fine, p. 6; Plaintiffs' Memorandum in Support of Attorney's Fee Application, p. 5. Moreover, this rate falls well within the range of rates found reasonable in other cases within this District.[29] Similarly, the Court fixes Mr. Carter's rate at $50 an hour, his normal billing rate.
Plaintiffs urge that $30 per hour constitutes a fair rate for paralegal services. The Court finds $20 per hour the appropriate figure. Both Messrs. Norton and Beaty state that during their employment with Mr. Fine, their time has been billed to clients at $20 per hour. Norton Affidavit, p. 2; Beaty Affidavit, p. 2.[30]
C. Calculating the Lodestar
In addition to the 100 hours already awarded in 1974, the attorneys' time for which credit will be allowed totals 564 hours of partners' time and 22½ hours of associate's time. At the rates of $75 and $50 per hour, respectively, reasonable attorneys' fees equal $43,425. Adding the reasonable fees for paralegal services amounting to $19,275 (963.75 hours times $20 an hour), the Court arrives at a lodestar figure of $62,700.
*1277 D. Contingency Multiplier
In contemplating an adjustment for risk undertaken, the court must be mindful of the fact that "the proper calculation of the lodestar is by definition the calculation of a reasonable compensation for the time expended by the attorney." Baughman, supra, 583 F.2d at 1219. Where the lodestar is a significant amount in comparison to the amount awarded plaintiffs in damages, the court should be reluctant to increase the fee award through the contingency multiplier. Heigler v. Gatter, supra, 463 F.Supp. at 805; Baughman, supra, 583 F.2d at 1218; Lindy I, supra, 487 F.2d at 168.
Under Lindy II, supra, 540 F.2d at 117, the court is to consider the following factors in determining whether a contingency increase is warranted:
1. Analysis of plaintiff's burdenconsidering the legal and factual complexity of the case, the probability of defendant's liability, whether damages would be difficult or easy to prove;
2. Risks assumed in developing the casenumber of hours and out-of-pocket expenses risked without guaranteed compensation; and
3. Delay in receipt of payment for services rendered.
As to plaintiffs' burden, while it is clear that the case was generally complex, the cause of action in which plaintiff prevailedvertical price-fixing constituting a per se violation of Section 1 of the Sherman Actwas relatively simple and easy to prove. As the Court previously observed, "What was established in this case was a violation of Section 1, which violation was contained in the four corners of the dealers' agreement." Although the chance of success on plaintiffs' other claims were more speculative, that fact is irrelevant since they did not prevail on those claims and cannot receive attorneys' fees therefor. Admittedly, proving damages was extremely difficult and risky. But that fact is a double-edged sword.
"For although it might seem at first glance to entitle counsel to a large additur, it raises other questions that point in the opposite direction. This is emphatically not a case where counsel succeeded either against long odds or in recovering a substantial damage award. Indeed, Kane's ultimate recovery was a modest one, and one, we believe, that could reasonably have been anticipated by a person familiar with the facts of the case. Proof of damage resulting from the violations was quite speculative. * * *
"In sum, we cannot in good conscience approve an increase in the base or `lodestar' figure set forth above. The case presented fairly straightforward issues of anti-trust law in a factually uncomplicated setting. Probability of successfully establishing liability was exceptionally high, but damages were speculative at best. And although we do not question the competence of petitioner nor the sincerity with which the claims were pursued, we do believe the size of the recovery should have come as no surprise." Kane v. Martin Paint Stores, Inc., 439 F.Supp. 1054, 1058-1059 (S.D.N.Y.1977), aff'd 578 F.2d 1368 (2d Cir. 1978).
Thus, although counsel undertook a substantial risk in developing the case,[31] no upward adjustment for the risk can be granted.
Because of the protracted nature of the case, however, the Court will increase the lodestar by 15% to compensate for the delay in receipt of payment,[32] bringing the total award to $72,105. While inflation does not constitute an automatic basis for a *1278 contingency increase since billing rates commonly take deferred payment into account, the delay is nonetheless a factor the court may legitimately consider, Lockheed Minority Solidarity Coalition, supra, 406 F.Supp. at 834.[33] The increase in the instant case is particularly warranted by the flat compensation rate the Court has chosen to apply to the entire course of litigation.
E. Quality Multiplier
Since the quality of an attorney's work generally is a component of the reasonable hourly rate factored into the lodestar, an additional adjustment should be effected to reflect "exceptional services only." Lindy II, supra, 540 F.2d at 117-118; Baughman, supra, 583 F.2d at 1219. An important factor in determining such adjustment is the result obtained by verdict or settlement. Lindy II, supra, 540 F.2d at 118. In view of the nominal recovery plaintiffs acknowledge that no upward adjustment is warranted in this regard. And while counsel is to be commended for their efficient use of their time and for their effective employment of paralegal assistants, the Court cannot conclude that "an unusual degree of skill" was employed. Lindy I, supra, 487 F.2d at 168. Therefore, the Court will not apply any quality multiplier.
F. Adjustment to Assure Reasonableness of the Fee Award
The final adjustment borrowed from Hughes allows the court to consider the "important substantive purposes" of the antitrust laws and fee provision and to assure the reasonableness of the final fee award in taking into account the magnitude of damages recovered and the fee awards made in similar cases. Hughes, supra, 578 F.2d at 491-492 (Garth, J., concurring). For instance, where the plaintiff has succeeded in establishing an important legal principle or otherwise has made a substantial contribution to the vindication of important governmental policy, this may militate against a substantial downward adjustment which would otherwise be dictated by a small monetary recovery. See Hughes, supra, 578 F.2d at 490-491 (Rosenn, J., concurring); Osborn, supra, 207 F.Supp. at 864; Newberry, supra, 1977-2 CCH Trade Cases at 73,131. See also Finley, supra, 66 F.Supp. at 571-572.
In the instant case, plaintiffs succeeded in establishing in this Circuit a novel and potentially significant principle in vertical price restraint cases governing the burden of proof of damages. The majority of the panel in this case held that the district courts are to "assume that, absent evidence to the contrary, a dealer would have raised his prices had it been profitable to do so; that is, dealers are profit maximizers." 548 F.2d at 812 (footnote omitted). While the contours of that principle remain to be clearly defined, the rule may well have ramifications beyond the instant case.[34]
The countervailing consideration, of course, is the nominal damage recovery. As discussed above,[35] there must be some relation between the benefits attained and the fee awarded. Another factor counseling for downward adjustment is the fact that the Court has found no case in which a court has granted a fee equivalent to the lodestar in the instant case where only nominal damages were recovered. In Osborn, supra, 207 F.Supp. at 864, the trial court awarded $14,000 in attorney's fees where *1279 plaintiff recovered $325 in damages. In Morning Pioneer, Inc., supra, 493 F.2d at 390, the Court of Appeals upheld a fee award of $7,350 where plaintiffs obtained only nominal damages.
Weighing these factors, the Court concludes that a downward adjustment (or what might be termed the application of an "inverse multiplier") of 25% is mandated. The final award of $54,078.75 is admittedly substantial and exceeds those granted in Osborn and Morning Pioneer, and although "[t]he amount claimed is very large relative to the monetary results achieved," "[i]t is clear, however, that the effective enforcement of the antitrust laws, particularly in the area of price fixing, must and should rely in part, as Congress intended, upon effective treble damage suits brought by private plaintiffs." Newberry, supra, 1977-2 CCH Trade Cases at 73, 133.[36]
Accordingly, IT IS HEREBY ORDERED that plaintiffs be awarded fifty four thousand seventy-eight and seventy-five hundredths dollars ($54,078.75) in attorneys' fees.[37]
IT IS HEREBY FURTHER ORDERED that counsel for plaintiffs shall prepare an appropriate form of judgment and submit it to the Court for execution within ten (10) days hereof.
NOTES
[1] Those contentions were (1) defendants conspired and combined to deprive plaintiffs of their right to transfer their distribution business and to appropriate the value of the on-going business without just compensation; (2) defendants imposed illegal territorial constraints; and (3) defendants attempted and conspired to monopolize the newspaper industry.
[2] Osborn was cited with approval in Perkins v. Standard Oil Co., 399 U.S. 222, 223, 90 S.Ct. 1989, 26 L.Ed.2d 534 (1970).
[3] Although the validity of the award is doubtful, see Koratron, supra, 409 F.Supp. at 1029; Locklin, supra, 378 F.Supp. at 428, the case has been cited with approval. See Semke v. Enid Automobile Dealers Ass'n, 320 F.Supp. 445, 447 (W.D.Okl.1970), rev'd on other grounds, 456 F.2d 1361 (10 Cir. 1972); Proceedings of the Judicial Conference of the Eighth Judicial Circuit, 70 F.R.D. 247, 310 (1974).
[4] Compare the similar approach that has been taken in the courts' determination of reasonable attorney's fees in civil rights cases, the award of which is also statutorily based. In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-718 (5 Cir. 1974), the court utilized the following factors as guidelines: (1) time and labor required, (2) novelty and difficulty of the legal questions, (3) skill requisite to perform the legal service properly, (4) preclusion of other employment by the attorney due to acceptance of the case, (5) customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) amount involved and the results obtained, (9) experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) nature and length of the professional relationship with the client, and (12) awards in similar cases.
[5] See City of Detroit v. Grinnell Corp., 495 F.2d 448, 469-474 (2 Cir. 1974) (hereinafter referred to as "Grinnell I"); City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098-1103 (2 Cir. 1977) (hereinafter referred to as "Grinnell II"); Grunin v. Intern'l House of Pancakes, 513 F.2d 114, 128-129 (8 Cir. 1975), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975); see also Oppenlander v. Standard Oil Co. (Indiana), 64 F.R.D. 597, 614-616 (D.Colo.1974); EZ Paintr Corp. v. Newell Companies, 65 F.R.D. 371, 374-375 (E.D.Wis.1974).
[6] Some courts have held that fees should be denied for clearly meritless claims but granted for work reasonably calculated to advance their client's interest although not completely successful. See, e. g., Stanford Daily v. Zurcher, 64 F.R.D. 680, 684 (N.D.Cal.1974), aff'd 550 F.2d 464 (9 Cir. 1977). It may be argued that the courts should be lenient towards granting fees for unsuccessful time in order to give attorneys incentives for engaging in innovative but risky litigation and in view of the impracticalities of recordation and allocation were the courts forced to segregate out non-successful hours. See Solovy & Barnard, "Attorneys' Fees in Commercial and Civil Rights Actions," 131 Current Problems in Federal Civil Practice 755, 794-795 (P.L.I.1979) (hereinafter referred to as "131 P.L.I."). However, since "plaintiffs may claim attorneys' fees only with relation to their winnings and not their losings," Wall Products Co. v. National Gypsum Co., 367 F.Supp. 972, 975 (N.D.Cal.1973), denying fees on unsuccessful time spent seems most consistent with Section 4 of the Clayton Act. It should be noted that as to incentives for innovation, the risk and possibly quality multipliers provide adequate rewards. And although practical problems of recordation and allocation may be significant, attorneys should be fore-warned that the burden is on them to keep detailed time records. Moreover, while the courts have held that an automatic reduction formula using a simple prorata allocation of successful versus non-successful claims should not be applied, see, e. g., Hughes v. Repko, 578 F.2d 483, 487 (3 Cir. 1978), it may be permissible for the district court to apply a percentage reduction based on a just and reasonable estimate where more detailed analysis is impossible. See Wall Products, supra, 367 F.Supp. at 975. The Court therefore concludes that to be credited, the time spent must have at least "contributed to," Hughes, supra, 578 F.2d at 492 (Garth, J., concurring), if not "produced," Mills v. Electric Auto-Lite Co., 552 F.2d 1239, 1250 (7 Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977), the benefits achieved.
[7] The value of potential compensation to a rational economic decision-maker equals the size of the award multiplied by the probability of success. The risk multiplier should generally reflect the inverse of that proposition. In Lindy II, supra, 540 F.2d at 117, the court discussed in detail the factors that should be considered in determining the risk multiplier.
[8] See Hughes, supra, 578 F.2d at 488-489 (majority opinion); Keown v. Storti, 456 F.Supp. 232, 242 (E.D.Pa.1978); Advanced Business Systems & Supply Co. v. S. C. M. Corp., 287 F.Supp. 143, 161 (D.Md.1968) aff'd and modified, 415 F.2d 55, 70 (4 Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 101 (1970); Osborn v. Sinclair Refining Co., supra, 207 F.Supp. at 864.
[9] But see Heigler v. Gatter, 463 F.Supp. 802, 805 n.1 (E.D.Pa.1978) (court questioned whether the additional and more generally based adjustment to the lodestar countenanced in Hughes was still viable in light of potentially contrary language in Baughman, supra, 583 F.2d at 1219).
[10] In that footnote, the Brandenburger court also referred to Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 714. Although Johnson did not explicitly involve a lodestar calculation, Johnson and Lindy I are in fact generally complementary, as Lindy I "present[s] a procedure for ordering the examination of factors" listed in Johnson. Stanford Daily, supra, 64 F.R.D. at 682.
[11] See In re Equity Funding Corp. of America Securities Litigation, 438 F.Supp. 1303, 1326-1327 (C.D.Cal.1977); Lockheed Minority Solidarity Coalition v. Lockheed Missiles and Space Co., 406 F.Supp. 828, 831 (N.D.Cal. 1976); In re Gypsum Cases, supra, 386 F.Supp. at 962 n.3; Stanford Daily, supra, 64 F.R.D. at 682-683.
[12] See Vincent v. Hughes Air West, Inc., 557 F.2d 759, 775 n.16 (9 Cir. 1977) (while reserving judgment on the percentage-of-the-gross-recovery approach in fee awards, the court made reference to Grinnell I, Lindy I, and Lockheed, supra, cases utilizing the lodestar approach); Rosenfeld v. Southern Pacific Co., 519 F.2d 527, 530 (9 Cir. 1975) (citing footnote 7 of Brandenburger).
[13] The Court is not unaware of the fact that the rationale behind the approach undertaken in the Lindy and Grinnell cases are not directly applicable to the instant case. Those cases did not involve a right to attorney's fees under the Clayton Act but rather the courts' invocation of its inherent equitable powers to award fees where a class action claimant and his attorney have been able to create, preserve, and maintain a common fund by means of a settlement for the benefit of persons who did not participate in the litigation. See Lindy I, supra, 487 F.2d at 165. In such instances, the attorney's award comes out of the fund and results in a pro tanto diminution of the claimants' recovery. An important motivating factor leading the courts to impose more stringent and reviewable guidelines was the potential for abusive and enormous attorney's fee awards keyed to the size of recovery and not commensurate with the skill and time spent in the litigation in the settlement of class action cases involving huge sums, Grinnell II, supra, 560 F.2d at 1098-1099; in fulfilling the judiciary's role "as a fiduciary who must serve as a guardian of the rights of absent class members" who in effect must compete with the attorneys once the fund is established, the thrust of the lodestar analysis was that the "award must be made with an eye to moderation," id. at 1099. In the instant case, where reasonable attorneys' fees are statutorily authorized and indeed mandated where treble damages are awarded, and where there is no conflict between the attorneys and their clients since the fee is to be paid directly by defendants, much of the concerns underlying Lindy and Grinnell are inapplicable. See Phillips v. Crown Central Petroleum Corp., supra, 426 F.Supp. at 1170.
Furthermore, the merits of the lodestar analysis are not without criticism. By minimizing the role played by the magnitude of recovery and emphasizing actual time spent, attorneys may have less incentive to seek as high a recovery as possible and may reject quick settlements in order to prolong the proceedings and accumulate billable hours. See Grinnell I, supra, 495 F.2d at 471. And the contingency multiplier makes little sense from the defendant's perspective since its application implies that the defendant's liability varies inversely with the strength of the case against him. See Hughes, supra, 578 F.2d at 491; Comment, 60 Cal.L.Rev. 1556, 1669-1670 (1972).
Yet the dangers of emphasizing the size of recovery, discussed supra at p. 1268, outweighs the potential disincentives. And since Section 4 of the Clayton Act concerns not so much punishment of the defendant as much as facilitating the enforcement of important governmental policies, the defendant's interests must be subordinated in resolving the dilemma of the risk multiplier. Finally, although the particular concerns of the Lindy and Grinnell courts are not directly applicable, the lodestar approach does provide a rational method analyzing the factors other courts have specified and will contribute to the effectuation of greater consistency among district courts' awards and provide a more meaningful basis for appellate review in fee award cases.
[14] See Century Hardware Corp. v. Acme United Corp., 467 F.Supp. 350, 357 (E.D.Wis.1979); In re Clark Oil & Refining Corp. Antitrust Litigation, 422 F.Supp. 503, 511 (E.D.Wis.1976); Vandervelde v. Put & Call Brokers & Dealers' Ass'n, 344 F.Supp. 157, 160 (S.D.N.Y.1972); Transworld Airlines, Inc. v. Hughes, supra, 312 F.Supp. at 484; Voege v. Ackerman, 70 F.R.D. 693, 695 (S.D.N.Y.1976).
[15] Hughes was cited with approval in Fountila v. Carter, 571 F.2d 487, 496 (9 Cir. 1978).
[16] Although some authorities have suggested that paralegal time should either be denied or not subject to the multipliers, see Grinnell I, supra, 495 F.2d at 473, 131 P.L.I. at 796-797, this Court encourages the use of paraprofessionals and finds that their time should be compensated in an award for the attorney's fees, see Pacific Coast Agricultural Export Ass'n. v. Sunkist Growers, 1973-1 CCH Trade Cases ¶ 74,523 at p. 94,345 (N.D.Cal.1973), aff'd, 526 F.2d 1196, 1210 n.19 (9 Cir. 1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1741, 48 L.Ed.2d 204 (1976); Dorfman v. First Boston Corp., 70 F.R.D. 366, 373-374 (E.D.Pa.1976).
[17] Transworld Airlines, supra, 312 F.Supp. at 483; Stanford Daily, supra, 64 F.R.D. at 683 n.2. The Court acknowledges that although the per se rule applicable to maximum price-fixing is well established, Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968), defendants' contention that the rule of reason analysis should have been applied to the instant case, although without direct authority, was not frivolous. See Knutson, supra, 468 F.Supp. at 231-232 n.7. Thus the Court agrees that time spent by plaintiffs' counsel in meeting this defense was not insubstantial and should be considered in the award.
[18] Since the award reflecting the attainment of equitable relief was based on the Court's equitable powers and not Section 4 of the Clayton Act, it is unnecessary to reach the issue whether the 1976 amendment of Section 16 of the Act, 15 U.S.C. § 26, permitting the award of attorney's fees where a court issues injunctive relief in an antitrust case can be retroactively applied to the instant case. The Court notes, however, that under the authority of Alphin v. Henson, 552 F.2d 1033, 1034-1035 (4 Cir. 1977), cert. denied, 434 U.S. 823, 98 S.Ct. 67, 54 L.Ed.2d 80 (1977), the Act may apply retroactively, at least under certain circumstances. See City of Mishawaka, Ind. v. Amer. Elect. Power Co., Inc., 465 F.Supp. 1320, 1344-1345 (N.D.Ind.1979). Cf. Calnetics Corp. v. Volkswagen of America, Inc., 353 F.Supp. 1219, 1224-1225 (C.D.Cal.1973) (court awarded attorney's fees in a private action under Section 7 of the Clayton Act in which plaintiffs obtained equitable relief notwithstanding the lack of statutory authority therefor).
[19] It should be noted that this number of hours found compensable nearly equals the time (100 hours) for which this Court awarded the initial fee in connection with plaintiffs' establishing a Section 1 violation. Although fees for services rendered on appeal will commonly be substantially less than fees for trial work, since most of the evidentiary development is done at trial, see Perkins, supra, 474 F.2d at 552-553, the Court cannot conclude that the complexity of the issues on appeal and the favorable results obtained should have required less time than proving the per se Section 1 violation at trial.
[20] The Court of Appeals quotation in a footnote, 548 F.2d at 806, n.13, of a page from the briefs Appendix and suggestion that the district court might require defendant Sparks to inform plaintiffs of their right freely to resell the newspapers at prices other than the suggested price, id. at 807, are insufficient to warrant any compensation for preparation of the supplemental brief. The letter quoted was found not to constitute illegal coercion by defendants, id. at 806-807, and the Court of Appeals' suggestion was not taken up by this Court on remand.
[21] The Court of Appeals ordered that "[t]he parties shall bear their own costs on appeal." 548 F.2d at 815. In view of the fact that the term "costs" ordinarily does not encompass attorney's fees, see 28 U.S.C. § 1920; Fed.R. Civ.Pro. 54(d); 10 C. Wright & A. Miller, Federal Practice and Procedure, § 2675, pp. 179-181 (1973), and the fact that attorneys' time spent on appeal is generally compensable under the Clayton Act, it is evident that the appeals court order was not intended to have any bearing on the issue presently before the Court.
[22] The equities favor plaintiffs in this regard since counsel's services rendered in preparation of the briefs was occasioned by an affirmative action initiated by defendants.
[23] In Baughman, the Court of Appeals for the Third Circuit found that "the first trial would have sufficed to establish liability but for the egregious error of plaintiff's counsel in addressing the jury * * *. In such circumstances, plaintiff should not be compensated for the extra hours incurred solely because his counsel committed so fundamental an error * * *." 583 F.2d at 1216.
[24] In DeFilippo, the court allowed credit for hours spent on issues which the court did not find irrelevant until midway through trial. 378 F.Supp. at 472-473.
[25] The number of hours claimed does not appear to be out of line with those commonly involved in antitrust litigation generally. See Comment, 60 Cal.L.Rev. 1656, 1679-1682 (1972) (AppendixTable of antitrust attorney's fee cases listing, inter alia, the amount of single damages, number of hours claimed, and fee awarded).
[26] As set forth in their affidavits, each of the three had well over ten years' experience and have particular expertise in antitrust litigation.
[27] See Lockheed Minority Solidarity Coalition, supra, 406 F.Supp. at 833, in which the court noted that the parties agreed that the leading San Francisco law firms as of late 1975 charged between $40 an hour for associates to $90 an hour for partners as fees in protracted litigation.
[28] Defendants contend that under Perkins, supra, 474 F.2d at 553, fees for services rendered on appeal must be compensated at rates substantially below those awarded for services in the trial court. However, the court merely stated:
"For these reasons, we believe that in assessing `a reasonable attorney's fees' for appellate services, a court must keep in mind that the appeal is not a separate lawsuit, but rather a continuation of a lawsuit which has progressed considerably by the time counsel commences work on the appeal. Accordingly, the amount allowed for attorneys' services on appeal should generally be less than that awarded for services at the trial of the same case."
The court only remarked that the total amount of attorney's fees should generally be less for appeal as compared to trial work. This Court finds no reason why the rate for appeal work should be reduced, particularly where as in the instant case, plaintiffs' counsel did a commendable job in the Court of Appeals.
[29] See Stanford Daily, supra, 64 F.R.D. at 685 ($50/hr) (1974); In re Gypsum Cases, supra, 386 F.Supp. at 968 ($100/hr for partners and $50/hr for associates) (1974); Pacific Coast Agricultural Export Ass'n, supra, 1973-1 CCH Trade Cases at 94,344 n.2 ($60-75/hr) (1973).
Since the Court decides that a straight $75 is the proper hourly rate, the issue of whether historical rates at the time services are rendered or rates current at the time of the award generally should be utilized need not be reached. See In re Equity Funding Corp. of America Securities Litigation, supra, 438 F.Supp. at 1331.
[30] Compare the $15 per hour rate found reasonable for services of law clerks in In re Gypsum Cases, supra, 386 F.Supp. at 968; Pacific Coast Agricultural Export Ass'n, supra, 1973-1 CCH Trade Cases at 94,345.
[31] Plaintiffs' counsel have allegedly invested a total of 3,771.5 hours in the case and have received total compensation of $23,287 thus far. Plaintiffs' Memorandum of Points and Authorities, p. 26; Third Affidavit of Fine, p. 3. Although plaintiffs agreed to pay all the costs of litigation, Mr. Fine has paid $2,405.52 in costs. Ibid.
[32] The bulk of the fees were earned in the appellate proceedings (1974-1975) and in the damages retrial (1977-1978). The 15% adjustment properly reflects the cost of length of the delay involved.
[33] It should be noted that allowing adjustment for the deferred payment furthers the policy of deterring dilatory tactics in complex litigation. See 131 P.L.I. at 805.
[34] Cf. Newberry v. Washington Post Co., 438 F.Supp. 470, 483 (D.D.C.1977), in which the court, in a similar case, awarded nominal damages to certain newspaper distributors because of their failure to prove that they would raised their prices in the absence of illegal price restraints imposed by defendants. The court pointed to the potential loss of subscribers as a "major deterrent" to any price increase. Assuming plaintiffs could have shown that their actual prices were below the profit-maximizing price, the application of the presumption created by the Court of Appeals in this case might have effected a different result.
[35] See discussion, supra, at p. 1271.
[36] In Newberry, seven of the plaintiffs recovered only nominal damages, and three established an aggregate of approximately $23,000 in damages. 438 F.Supp. at 483; order regarding damages and costs filed November 2, 1977. Notwithstanding this relatively small recovery, plaintiffs were awarded $140,000 in attorney's fees. Newberry, supra, 1977-2 CCH Trade Cases at 73,133.
[37] The award is an aggregate sum granted to plaintiffs exclusive of the award previously made; the Court does not fix a fee for each attorney. Since the right to recover attorneys' fees is that of the injured party and not the attorneys, Carpa, Inc. v. Ward Foods, Inc., 536 F.2d 39, 52 (5 Cir. 1976); Wall Products, supra, 367 F.Supp. at 973, it is for the successful plaintiffs to deal with the various attorneys acting on their behalf, See Newberry, supra, 1977-2 CCH Trade Cases at 73,132. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263693/ | 479 F.Supp. 11 (1979)
Henry HARRIS and Johnnie C. Hillman, on behalf of themselves and all others similarly situated,
and
Equal Employment Opportunity Commission
v.
ANACONDA ALUMINUM COMPANY, Shopmen's Local Union No. 616 of the International Association of Bridge, Structural & Ornamental Iron Workers, International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO.
Civ. A. No. C75-289A.
United States District Court, N. D. Georgia, Atlanta Division.
March 30, 1979.
*12 *13 *14 *15 *16 Donald P. Edwards of Kennedy & Sampson, Atlanta, Ga., for plaintiffs.
Abner W. Sibal, Gen. Counsel, E.E.O.C., William L. Robinson, Assoc. Gen. Counsel, E.E.O.C., Washington, D. C., Theodore T. Grove and Floyd C. Hale, Trial Attys., E.E. O.C., Atlanta, Ga., for E.E.O.C.
Harris Jacobs and James T. Langford of Jacobs, Jacobs & Davis, Atlanta, Ga. (for Unionslocal and intl.)
Cleburne E. Gregory, Jr., Jeffrey B. Berg and Simon A. Miller, Atlanta, Ga. (for Anaconda).
ORDER
NEWELL EDENFIELD, District Judge.
This civil action, alleging racial discrimination in employment, is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Labor Management Relations Act, 29 U.S.C. §§ 151, et seq., with respect to the plaintiffs' claim for alleged violations of the duty of fair representation by the defendant unions. The two individual plaintiffs, Henry Harris and Johnnie C. Hillman, are black hourly employees at defendant Anaconda Company's (hereinafter "Anaconda") facility in Fulton County, Georgia and members of defendant Shopmen's Local Union No. 616 (hereinafter "Local Union"). They filed their original EEOC charges of racial discrimination against Anaconda and the Local Union on April 18, 1969. On July 20, 1970, plaintiffs filed substantially identical EEOC charges against defendant International Association of Bridge, Structural and Ornamental Iron Workers (hereinafter "International Union"). The Equal Employment Opportunity Commission (hereinafter "Commission") rendered its reasonable cause determination on February 6, 1973 and attempted to conciliate the matter until July 19, 1974. No conciliation agreement having been reached, plaintiffs received their notice of right to sue on November 11, 1974 and filed the instant action seeking declaratory and injunctive relief on February 19, 1975. They allege, on behalf of a class of similarly situated individuals, that Anaconda has discriminated against them because of their race in promotions and transfers, job assignments, training opportunities, and other terms and conditions of employment and that the unions have discriminated against Anaconda's black employees by limiting the employment and promotional opportunities of these persons and by breaching the duty fairly to represent those employees. The Commission was permitted to intervene in this action, pursuant to sections 705(g)(6) and 706(f)(1) *17 of Title VII, 42 U.S.C. §§ 2000e-4(g)(6), -5(f)(1), on September 15, 1976.
By order of March 31, 1978, the court granted motions by the private plaintiffs and the Commission for class certification, the class to include all past, present and future black employees at Anaconda's Fulton County facilities after July 2, 1965. At this time, it designated the Commission as the class representative but amended this order on July 21, 1978, to permit both the individual plaintiffs and the Commission to represent the class. The March order also granted the Commission's motion to separate the issues of liability and individual relief for purposes of trial. The liability portion of this case was tried to the court, sitting without a jury, from July 10, 1978 through July 27, 1978 and from August 21, 1978 through August 24, 1978, and all five parties presented witnesses and documentary evidence in support of their positions. This order contains the court's findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R.Civ.P.
Jurisdiction
Anaconda is and has been a business corporation engaged in designing and manufacturing architectural aluminum products in Fulton County and in selling and shipping those products to customers in various other places both inside and outside the United States. It has continuously employed several hundred persons in those operations since prior to July 2, 1965, the effective date of Title VII, and is therefore an employer engaged in an industry affecting commerce within the meaning of section 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000e-1(b), (g) and (h). The Local Union has been an unincorporated association of participating employees which deals with employers concerning terms and conditions of employment continuously since July 2, 1965. It has had more than twenty-five members and has been the certified collective bargaining representative of several hundred of the Anaconda employees since before that date. The International Union chartered the Local Union, has had more than twenty-five members, and has been an unincorporated association of participating employees which deals with employers concerning terms and conditions of employment continuously since July 2, 1965. Both the Local and International Unions are labor organizations engaged in an industry affecting commerce within the meaning of section 701(d) and (e) of Title VII, 42 U.S.C. § 2000e-1(d) and (e). The court has jurisdiction of this action under section 706(f) of Title VII, 42 U.S.C. § 2000e-5(f), and under 28 U.S.C. §§ 1343, 1345, 2201 and 2202 and 29 U.S.C. §§ 151, et seq.
Statute of Limitations
In United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), the Supreme Court held:
A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute [Title VII] was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.
Plaintiff in Evans had been forced to resign in 1968 because of a marriage policy discriminating against female flight attendants. She did not file an EEOC charge within ninety days as required by Title VII prior to 1972. After reinstatement in 1972 plaintiff filed suit to receive seniority credit for the pre-1968 employment, contending that the seniority system perpetuated an act of past discrimination. In upholding the dismissal of this complaint as time-barred, the Court rejected plaintiff's theory that the refusal to grant her seniority credit constituted a continuing violation having present effects, on two separate grounds. First, a post-1965 unlawful practice which is not made the basis of a timely EEOC charge is the legal equivalent of a pre-1965 act and has no present legal effects. Second, under section 703(h) a neutral seniority system may not be attacked under Title VII because of "the mere fact that a past event which has no present legal significance has affected the calculation of *18 seniority credit, even if the past event might at one time have justified a valid claim against the employer." 431 U.S. at 560, 97 S.Ct. at 1890.
Evans was an individual action, while the present case is a class action. "In a class action, the named plaintiffs can represent all persons who could have filed charges with the Equal Employment Opportunity Commission . . . as of the effective date of a class representative's filing." Dickerson v. United States Steel Corp., 439 F.Supp. 55, 68 (E.D.Pa.1977), rev'd on other grounds, 582 F.2d 827 (3d Cir. 1978), citing Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). Thus, the class can only assert liability against defendants by showing violations with respect to which EEOC charges could have been filed at the same time the named plaintiffs filed their EEOC charges. Croker v. Boeing Co., 437 F.Supp. 1138 (E.D.Pa.1977).
The effect of Evans is that liability under Title VII cannot be predicated upon either pre-Act discrimination or post-Act discrimination which has not been made the subject of a timely EEOC charge. See Swint v. Pullman-Standard, 15 F.E.P. 144 (N.D.Ala.1977). Such post-Act discrimination is, of course, admissible background evidence which may be circumstantially relevant to establishing current unlawful practices, but, standing alone, it cannot support a finding of liability. In the present case, the cut-off date under Evans is January 18, 1969, which is ninety days prior to the filing of the original EEOC charges against Anaconda and the Local Union. Thus, any evidence of alleged unlawful acts prior to that date cannot be evidence of a pattern or practice upon which a finding of liability against these two parties may be predicated. Since the charges against the International Union were not filed until July 20, 1970, its Title VII liability must be based upon discriminatory acts occurring after April 21, 1970.
Plaintiffs and the Commission argue that the statute of limitations delineated in Evans does not apply in cases alleging "a broad systematic pattern of racial discrimination in promotions" since such cases involve, by definition, continuing violations of Title VII in that black employees continue to feel the effects of the alleged discrimination in terms of wages or benefits. They assert that in these cases no limitation period other than the effective date of the statute should be applied. It appears to the court that Evans itself spoke to this question and made no such distinction. The Court stated, "Respondent emphasizes the fact that she has alleged a continuing violation. United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists." 431 U.S. at 558, 97 S.Ct. at 1889. In DuPree v. E. J. Brach & Sons, 77 F.R.D. 3, 6 (N.D.Ill.1977), a case involving allegedly discriminatory promotions, the court relied upon this language and rejected a continuing violation theory. It reasoned, "[T]he alleged denials of promotions here have a constant and present effect. The violations occurred, if at all, when the defendant allegedly promoted white, less qualified individuals over blacks." The court concludes that this is the proper approach after Evans.
Clark v. OlinKraft, Inc., 556 F.2d 1219 (5th Cir. 1977), is cited by plaintiffs[1] in support of their continuing violation theory. It does not appear to assist them, however. There, a female worker, who had been employed by defendant from March, 1964 until October, 1974 without being promoted, alleged that her employer had an established policy or practice of promoting men with less seniority to better-paying jobs over qualified women and of paying women lower salaries than men performing the same job. The district court granted defendant's motion to dismiss the complaint, treated as one for summary judgment, on the basis *19 that all of the events alleged in the complaint had occurred more than 180 days prior to plaintiff's March 5, 1975 filing of her EEOC charge. The Fifth Circuit reversed and set forth two theories in support of its action: (i) a continuing violation theory relying on Evans v. United Airlines, 534 F.2d 1247 (7th Cir. 1976), as it existed prior to its reversal by the Supreme Court and (ii) the existence of a factual dispute concerning the active discrimination that occurred within 180 days prior to the filing of the EEOC charge, which dispute rendered a grant of summary judgment improper. The court explicitly based its opinion on the second ground, however. Footnote 7 provides:
While this opinion was being circulated, the Supreme Court reached a decision in Evans . . . reversing the Court of Appeals. As already noted, our decision in the instant case does not depend on the validity of the theory asserted in Evans.
And further, in footnote 9, the court stated:
Our disagreement with the views expressed in the dissent is based on the fact that the allegations in the complaint and the deposition created an issue of fact relating to present discrimination. Summary judgment is an inappropriate vehicle for deciding factual questions, and it is on this basis that we reverse.
The dissent points out that under Evans an employer may treat as lawful any allegedly discriminatory act committed more than 180 days prior to the filing of the [post-1972] charge, although such conduct may be relevant as background evidence in a proceeding in which the status of a current practice is an issue, and that the critical question in such cases is "whether any present violation exists," 556 F.2d at 1224. It also argued that the record established there was no present violation. By making clear that its disagreement with the dissent was solely on the summary judgment issue, the court in effect rejected the continuing violation theory which it discussed in its opinion, as the Supreme Court opinion in Evans, of course, required it to do. Therefore, Clark is actually support for the proposition that events occurring prior to the relevant limitation period for filing an EEOC charge do not constitute conduct actionable under Title VII.
The individual plaintiffs also contend that the limitations period for equitable relief under 42 U.S.C. § 1981 goes back to 1955, twenty years prior to the filing of the complaint. In United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973), and Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974), rev'd on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), the Fifth Circuit held that Ga.Code Ann. § 3-704 is the appropriate statute of limitations for section 1981 actions under the "borrowing" principles of Beard v. Stephens, 372 F.2d 685 (5th Cir. 1967). That section provides a limitation period of twenty years for causes of action seeking "the enforcement of rights [accruing to individuals] under statutes" except that awards of back pay are limited to two years. The application of this provision appears to have been somewhat inconsistent, however. In Ivey v. Western Electric Co., 11 E.P.D. ¶ 10,900 (N.D.Ga.1975) (Moye, J.), the court construed Georgia Power and Franks to apply a bifurcated statute of limitations for section 1981: two years for back pay, and twenty years for equitable relief. Other cases have held that only the two-year provision of section 3-704 was applicable. See, e. g., Foster v. Mead Packing Intl., 14 F.E.P. 348 (N.D.Ga.1976); Williams v. Burns Intl. Security Services, 13 F.E.P. 1505 (S.D.Ga.1976); Collier v. Hunt-Wesson Foods, Inc., 13 F.E.P. 88 (S.D.Ga.1976); Roberts v. H. W. Ivey Construction Co., 408 F.Supp. 622 (N.D.Ga.1975).
Having carefully reviewed these decisions, the court concludes that the bifurcated approach of Ivey is most appropriate in the instant case in which back pay and other forms of equitable relief are sought. This does not end the matter, however. As stated in Franks:
The § 1981 action, insofar as it corresponds to the Title VII action, must also be considered essentially equitable. In an equitable action, equitable defenses may *20 be raised, and these include the doctrine of laches. In the proper case, laches might be applied to bar a claim entirely, or it might bar only part of the remedy sought, such as the back pay award for a portion of it.
495 F.2d at 406. In Ivey, the court specifically recognized that "laches may very well limit the 20-year limitations period for equitable relief." 11 E.P.D. at 7787.
Laches, a doctrine grounded upon the inequity of permitting enforcement of a claim where some change in circumstances has taken place which would make enforcement unjust, Davis v. Alabama Power Co., 383 F.Supp. 880, 894 (N.D.Ala.1974), aff'd, 535 F.2d 657 (5th Cir. 1976), aff'd, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977), is comprised of two elements: inexcusable delay by a plaintiff in asserting his rights and undue prejudice to defendant as a result. Akers v. State Marine Line, Inc., 344 F.2d 217 (5th Cir. 1965). The existence of the defense is addressed to the discretion of the trial court. Gardner v. Panama R.R., 342 U.S. 29, 30, 72 S.Ct. 12, 96 L.Ed. 31 (1951).
Both of the elements of laches are present in the instant action. Although at trial witnesses for plaintiffs testified concerning events occurring as far back as 1955, Anaconda had not been made aware of race-based complaints by plaintiffs until they filed their EEOC charges in 1969. Moreover, even though the limitations period for section 1981 was not tolled by the filing of these charges, Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), plaintiffs waited for six years to file their claim under this section. The evidence at trial revealed that bid listscritical documents in a "promotions" casedo not exist for dates prior to 1968, and there were many instances in which Anaconda's supervisors could not recall incidents in question, a number of which occurred between fifteen and twenty years ago. Thus, concluding that plaintiffs have "slept on [their] Section 1981 rights," Johnson, supra, at 466, 95 S.Ct. at 1723, and that defendants were prejudiced in attempting to defend against these old allegations, the court grants Anaconda's laches defense in part. The limitations period for purposes of equitable relief under section 1981 shall be the same as that established for the Title VII claimsJanuary 18, 1969. For back pay relief under this section, of course, the two-year limitation will control.
As noted earlier, plaintiffs Harris, Hillman, and the Commission represent a class which has been defined to include "all present, former, and future black employees of the defendant company who are, have been or will be employed at defendant's facilities in Fulton County, Georgia after July 2, 1965. On the basis of the foregoing discussion on the applicable statutes of limitation, this description will be amended to read "after January 18, 1969."
Standard and Methods of Proof
This case arises under section 706 of Title VII, 42 U.S.C. § 2000e-5. Both plaintiffs and the Commission have alleged broad systemwide patterns of discrimination against a class of black employees; they have offered individual testimony, documentary evidence and statistics in support of their claims. Plaintiffs bear "the initial burden of making out a prima facie case of discrimination," International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977), and may accomplish this by demonstrating either disparate treatment or disparate impact. In Teamsters, supra, at 335, n. 15, 97 S.Ct. at 1854, n. 15, these terms were defined as follows:
"Disparate treatment" . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. [Citation omitted.] Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII. . . .
Claims of disparate treatment may be distinguished from claims that stress *21 "disparate impact." The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. . . . Proof of discriminatory motive, we have held, is not required under a disparate impact theory.
If the plaintiffs meet their initial burden, the burden then shifts to the employer to defeat the inference which plaintiffs have raised by exposing plaintiffs' proof as insignificant or inaccurate or by proving a business necessity. Plaintiffs are then permitted to put on rebuttal evidence to overcome defendant's proof.
The Teamsters court described plaintiffs' ultimate burden of proof in this situation in the following terms:
[The party alleging a systemwide pattern] ultimately had to prove more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts. [Such a party] had to establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedurethe regular rather than the unusual practice.[2]
431 U.S. at 336, 97 S.Ct. at 1855. This court must determine whether the plaintiffs and Commission have met their burden of proving a "pattern or practice" of racial discrimination, upon consideration of the plaintiffs' and Commission's evidence in chief, the rebuttal and defensive evidence presented by the three defendants, and the rebuttal evidence presented by the plaintiffs. See, e. g., United States v. United States Steel Corp., 520 F.2d 1043, 1053 (5th Cir. 1975).
The burden of proof under 42 U.S.C. § 1981 is somewhat different. In Williams v. DeKalb County, 577 F.2d 248 (5th Cir.), modified on rehearing, 582 F.2d 2 (5th Cir. 1978), the Fifth Circuit held
that under the teaching of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1978) . . ., the named plaintiff and the class must make a showing of purposeful discrimination before casting the burden on the defendant to rebut the charge; that a claim under § 1981 is, for this purpose, to be equated with a claim under the Fourteenth Amendment, dealt with by the Court in Washington, rather than under Title VII of the Equal Employment Opportunity Act.
Washington v. Davis, supra, established that there was a distinction between claims of racial discrimination under the Constitution and under Title VII. Specifically, an action would not violate the Constitution "solely because it has a racially disproportionate impact." 426 U.S. at 239, 96 S.Ct. at 2047 (emphasis in original). Plaintiffs therefore must prove a racially discriminatory purpose to prevail on their claims under 42 U.S.C. § 1981, as well as on any claims of "disparate treatment" under Title VII.
General Background
American Art Metals Company began over thirty-five years ago as a small aluminum products manufacturing concern operating facilities on Highland Avenue and Bishop Street in Atlanta, Georgia. In approximately 1959, the company moved to a new plant on Fulton Industrial Boulevard in Fulton County, Georgia. Defendant Anaconda acquired American Art Metals sometime during 1962 and retained its tradename, "Amarlite". "Amarlite Anaconda" employs approximately 500 persons at its main plant on Fulton Industrial Boulevard, about thirty employees at the Atlanta Region Sales Office or Georgia District, located on Marietta Boulevard, and about *22 100 individuals in sales regions outside Georgia. The instant action deals with the allegedly discriminatory practices at the Georgia facilities only. Amarlite Anaconda manufactures architectural aluminum products including doors and storefronts for commercial establishments and windows and curtain walls (aluminum framework for glass walls) for large buildings. The production process begins with the extrusion of aluminum ingots through a large press into the desired shape by use of various dies. The extruded aluminum is subsequently cut, anodized, and fabricated into either standard or custom products. The product is then inspected, packed, and shipped.
The overall operations of Amarlite Anaconda are managed by a "Vice President-General Manager". The organizational structure which existed on November 1, 1976, was typical of the general organizational structure which has existed at all times relevant to this litigation. On that date Amarlite Anaconda was organized into six major organizational units, each headed by one of the following managers who reported directly to the Vice President-General Manager: (1) Director of Manufacturing, (2) Director of Marketing & Sales, (3) Accounting Manager, (4) Employee Relations Manager, (5) Credit Manager, and (6) Systems Program Supervisor. Several subordinate levels of management typically reported to the head of each of these six major organizational units. For example, the following managers reported to the Director of Manufacturing: (1) Production Manager, (2) Purchasing Manager, (3) Production Control Supervisor, (4) Custom Planning Manager, and (5) Engineering Manager.
The vast majority of Amarlite Anaconda's hourly employees have always worked in the operations which were managed by the Production Manager on November 1, 1976. The following managers reported to the Production Manager on that date: (1) Extrusion Superintendent, (2) Finishing Superintendent, (3) Fabrication Manager, and (4) Material Handling Manager. Each of these managers in turn managed one or more departments and one or more area foremen and foremen. Each area foreman had foremen reporting to him. Anaconda assigned each hourly employee to a department and a foreman.
The organizational structure under the Engineering Manager was similar to that under the Production Manager, although it was smaller. All of the hourly employees there were in either the Maintenance Department or the Tooling Department. Maintenance Foremen reported to the Area Maintenance Foreman, who reported to the Maintenance Superintendent, who reported to the Engineering Manager.
In 1956, American Art Metals entered into a collective bargaining agreement with the Local Union, covering all production and maintenance workers. These workers, who are in a single collective bargaining unit, are still represented by the Local Union which also has members in four smaller companies in this area. All of the represented employees are paid on an hourly basis. Substantially all other Anaconda employees working at the two facilities are paid on a salaried basis, and none of these employees is represented by the union.
Until 1977, the applicable collective bargaining agreements provided for separate seniority divisions related to the different production and maintenance functions. For example, under the collective bargaining agreement in force between 1974 and 1977, there were five divisions: Fabrication, Mill (finishing), Material Handling, Inspection, and Maintenance and Tooling. Each of these divisions contained various job classifications. Under the applicable collective bargaining agreements before 1977, all hourly job vacancies were awarded by a hybrid divisional/plantwide seniority system in conjunction with a twenty-four clock hour (three-day) on-the-job tryout, and it is these practices which are primarily under attack in this case. In 1977, straight plantwide seniority was substituted for the hybrid system. Salaried vacancies, which are not covered by the collective bargaining agreements, are awarded on the basis of recommendations and interviews by supervisory personnel.
*23 Promotions and Transfers within the Bargaining Unit
The individual plaintiffs and the Commission have sought through statistics and through proof of specific employment practices to prove that black employees were discriminated against in promotions and transfers within the bargaining unit as a whole and the Maintenance and Tooling Division in particular.[3] Specifically, plaintiffs contend that the use of a divisional preference in filling job vacancies, a facially neutral practice, violates Title VII and section 1981 inasmuch as it "perpetuate[s] the exclusion of black employees from the desirable jobs in Anaconda's traditionally white seniority divisions." In addition, they charge that the system of on-the-job tryouts is subjective and inconsistent and is applied in a racially discriminatory manner with the result that black employees have been excluded from the more desirable jobs. These two practices will be discussed below.
1. The Statistical Proof
To support their claims that these practices have barred black workers from the higher-paying, more desirable jobs, plaintiffs have presented statistical evidence. Initially, they note that in March, 1965, prior to the effective date of Title VII, only white employees occupied the sixty positions in the fifteen highest-paid job classifications held by represented employees,[4] although at that time black workers constituted at least 22% of the bargaining unit. In addition, only white employees occupied at least ten other job classifications.
By September 1, 1970, black employees occupied only three of the seventeen highest-paid job classifications while comprising 41% of the bargaining unit. From January 18, 1969the beginning of the relevant time period in this actionuntil September, 1970, there were no vacancies filled by bidding in eight of these top jobs, however.[5] Of the remaining nine job categories, one had only one employee, one had two employees, and one had five employees; these statistics are therefore not probative because of the small numbers involved. Two of the remaining six classifications contained black employees, and the other four were in the Maintenance and Tooling Division. These latter positions are covered in other statistics and will be discussed later. *24 Plaintiffs also note that in September, 1970 the seven "training" positions, all in the Maintenance and Tooling Division, were filled by whites.
In February, 1975, black employees constituted 38% of the bargaining unit. At that time, no black workers but twenty-four white employees held positions in the top seven job classifications. All seven of these jobs were in the Maintenance and Tooling Division. It also appears that in February, 1975 the average wage of the 113 black represented employees at Anaconda was $4.10 per hour, excluding leadman increases, shift differentials and overtime wages, while the average wage of the 186 white bargaining unit employees was $4.25 per hour, excluding the same items. The court is uncertain what use can be made of this information, however, since the average year of hire of the white employees was one year earlier than the average year of hire of the black workers.
At all times since July 2, 1965, with few limited exceptions, Anaconda has compensated its craft workers at higher rates of pay than the rates at which it has compensated its operatives and laborers and at the highest rates of pay available to represented employees at the company. The following EEO-1 figures demonstrate the bargaining unit profile by general job category and race.
June 1, 1969 Apr. 1, 1975[6] Mar. 31, 1977 April 1, 1978
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All Black All Black All Black All Black
Job Class Employees Employees Employees Employees Employees Employees Employees Employees
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No. No. % No. No. % No. No. % No. No. %
==============================================================================================================================
Craftsmen[7] 106 24 22.6 100 22 22.0 90 19 21.1 94 25 26.6
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Operatives 149 89 59.7 114 47 41.0 64 34 53.1 103 43 41.7
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Laborers 70 40 57.1 116 48 41.0 104 39 37.5 142 66 46.5
==============================================================================================================================
TOTALS 325 153 47.1 330 117 35.4 258 92 35.6 339 134 39.6
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As will be discussed infra, expert testimony established that the weighted average of the black population of the bargaining unit for the years 1966 through 1977 was 36.9%.
Most of Anaconda's craft jobs are located in the Maintenance and Tooling seniority division. Between January 1, 1966 and January 1, 1970, at least thirty-eight openings occurred and were filled in bargaining unit jobs in that division; none of these was filled by a black employee. It was not until 1973 that Anaconda promoted a black employee into one of the craft training programs in the Maintenance Division. As of February 27, 1975, black employees occupied six, or 15% of the forty positions in that division although the percentage of black represented employees in the plant on that date was 37.7%. Finally, the court finds that between July 2, 1965 and April 1, 1977, no black employee was promoted into the following craft job classifications: Tool and Die Maker, Electrician, Master Electrician, Die Corrector A, and Machinist AA.[8]
These statistics, taken together, make clear that the only area in which plaintiffs may be able to demonstrate discrimination in promotions or transfers is in the Maintenance and Tooling Division. In June, 1969, at which time the Maintenance Division had no black employees and at least thirty-four white craft workers,[9] the EEO-1 statistics, see text at 17, supra, demonstrate that *25 22.6% of the 106 craftsmen were black. Simple mathematics reveals that after subtracting the Maintenance and Tooling jobs from this number, 33.3% of the craft employees were black. A comparison of this figure to the average percentage of black workers in the bargaining unit provides no evidence of a long-lasting and gross disparity and gives rise to no inference of discrimination in "craft" jobs outside of the Maintenance Division. Moreover, the number of black employees in the higher-paying job classifications in 1970 and 1975 indicates that, except as to maintenance and tooling jobs or jobs with a very few employees, no inference of discrimination can be drawn. Further, the racial breakdown by seniority divisions, included in Appendix 1 attached hereto, demonstrates that the seniority divisions, with the exception of the Maintenance and Tooling Division, have, at all times relevant to this action, been racially mixed.
Anaconda does not dispute the validity of any of these figures; in fact, it admits that numerically the statistics could raise an inference of discrimination in the Maintenance and Tooling jobs. It asserts, however, that the statistics are faulty because they include data from at least three years prior to the relevant time period in this action. More importantly, however, Anaconda contends that in presenting these numbers, plaintiffs and the Commission have completely ignored the effects of the bona fide seniority system in allocating job tryouts. It argues that the workings of this system are protected by section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), as interpreted in International Brotherhood of Teamsters v. United States, supra.
2. The Teamsters Issue
Section 703(h) of Title VII provides in part:
Notwithstanding any other provisions of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate because of race, color, . . . or national origin . . ..
The United States had brought the action in Teamsters on behalf of black and Spanish-surnamed employees of the defendant trucking company who had been hired into departments other than the line driver department, which contained the company's highest-paying jobs, and who allegedly were in effect prohibited from transferring to line driver because of the company's seniority system. Teamsters involved a strict departmental seniority system under which an employee transferring between departments forfeited all accumulated seniority.
The Court in Teamsters noted initially that the Government had proved a prima facie case of systematic and purposeful employment discrimination in hiring and otherwise continuing well beyond the effective date of Title VII. However, it then held that "the routine application of a bona fide seniority system would not be unlawful under Title VII," 431 U.S. at 352, 97 S.Ct. at 1863, and "that an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination." Id. at 353-54, 97 S.Ct. at 1864. The Court also held that the perpetuation of post-Act discrimination does not make a bona fide seniority system unlawful. Id. at 347-48 and n.30, 97 S.Ct. 1843. This holding unquestionably worked a change in the law. Many circuits including the Fifth, had held that seniority systems which "locked" protected minorities into certain jobs or departments were violative of Title VII as perpetuations of past discrimination. After Teamsters, this theory is no longer valid as to the operation of "bona fide" seniority systems.[10]
*26 A. Evolution and Nature of the Seniority System
Vacancies for jobs in the bargaining unit at Anaconda are filled under a bidding and job tryout system set forth in section 17(B) of the collective bargaining agreements entered into between Anaconda (or its predecessor) and the Local Union. Each collective bargaining agreement has divided the plant into several seniority divisions. Under the initial 1956-57 contract, seniority was accumulated on a strict divisional basis, and an employee who changed divisions lost the seniority accumulated in his old division after transfer. This loss of seniority upon transfer was removed in the 1957-58 contract. From 1957 until 1961, employees in each division accumulated separate divisional seniority in that division. In 1961, this "divisional" seniority was replaced by modified "company" or plantwide seniority. Section 17(B)(2) of the 1961-63 contract provided that a transferring employee would take "his total seniority with the company" to his new division. This provision was not changed until the current (1977-79) contract, which abolished seniority divisions entirely, establishing pure plantwide seniority for all purposes. Thus, there was a progression from divisional to plantwide seniority through the collective bargaining process.
Bargaining unit vacancies are awarded based on applicable seniority subject to ability to perform the job. Since 1961, section 17(B)(3) of the collective bargaining agreements had provided that:
In all cases of promotions (except to supervisory positions not covered by this agreement) when new jobs are created, when jobs are re-established, or when other vacancies occur, employees in the division in which such vacancies occur shall be given preference in accordance with their length of continuous service in the company, subject to their ability to perform the work in question after a break-in period of twenty-four (24) clock hours.
* * * * * *
In the event that no employee(s) is qualified in the division in which such vacancy exists, or in the event that a new seniority division is established, the Company shall post on its bulletin boards lists showing vacancies available to be filled and employees in other divisions desiring such jobs shall be given the said trial period in order to qualify for such jobs in accordance with their seniority status, before new employees are hired.[11]
Although this section did not require that the opening be posted on all company bulletin boards unless no employee within the division where the vacancy occurred qualified for the vacancy, the testimony of several credible witnesses was that the company voluntarily began posting all such vacancies plantwide in the 1960s. This testimony is supported by various bid sheets entered in evidence which contain names of employees inside and outside of the division with the vacancy. Section 17(B)(2) of the 1977-79 contract provides for posting of all bargaining unit vacancies for plantwide bidding.
The procedure from 1961 to 1977 may thus be summarized: each bargaining-unit vacancy is posted on company bulletin boards. All employees may bid, based on their total company seniority. However, until 1977, the employees within the division having the vacancy had priority over other employees in obtaining a three-day tryout, based on their plantwide seniority. If no one within the division bid or qualified, bidders from other divisions were awarded tryouts based on total plantwide seniority. Once in the division, an employee could utilize full plantwide seniority on all future openings within that division. There was no forfeiture of seniority upon transfer. As a practical matter, most promotions would be made within a division, if someone bid and passed the tryout. A vacancy *27 often had a ripple effect by which an entry-level position at the bottom of the division would be vacated by a promoted employee. This entry-level position would be filled from outside the division, based on plantwide seniority. Thus, an employee seeking to change divisions would likely have to start at the bottom of the new division. However, the transferee retained his plantwide seniority, which he could use on all future openings to outbid employees in his new division who had less plantwide seniority.
Plaintiffs assert that this "divisional preference" is not protected by Teamsters because it is separate and distinct from Anaconda's seniority system and because, even if it is a seniority provision, the seniority system in question is not bona fide. With regard to the first point, plaintiffs apparently claim that the preference is not based on "seniority". This contention is best illustrated by a hypothetical situation advanced by the Commission involving two employees. Employee A was hired into Division I forty-five days ago. Employee B was hired into Division II twenty years ago. Because of the divisional "preference," Employee A will obtain a tryout on a Division I opening prior to Employee B if both bid. This, it is contended, ignores the greater seniority of Employee B and cannot be a part of a "seniority" system.
Precisely the same effect was present in the Teamsters seniority system, however. Under that system, as made clear by the lower and Supreme Court opinions, an employee with one day in a division would be given priority over an employee from outside of that division with twenty years seniority with the company. The major operative difference between the systems in Teamsters and this action is that under the Anaconda system an employee transferring to another division would be able to transfer his full company seniority for purposes of subsequent job bids, while the transferring employee under the seniority system involved in Teamsters would start from day one after his transfer. Moreover, the divisional aspects of the Teamsters seniority system which could operate to protect less senior plantwide employees over more senior plantwide employees, as is the case with Anaconda's system, were the specific aspects of the seniority system which the Court deemed protected by section 703(h). The Court agreed that the Teamsters system operated to "lock" minority workers into city driver jobs. 431 U.S. at 344, 97 S.Ct. 1843. Nevertheless, the Court held that these "advantages of the seniority system" which "flow disproportionately" to white employees, id. at 350, 97 S.Ct. 1843, were immunized by section 703(h). In short, the Commission's argument concerning the "preference" for divisional incumbents was effectively rejected in Teamsters. The Court stated its reasons, in part, as follows:
In addition, there is no reason to suppose that Congress intended in 1964 to extend less protection to legitimate departmental seniority systems than to plant-wide seniority systems. Then, as now, seniority was measured in a number of ways, including length of time with the employer, in a particular plant, in a department, in a job, or in a line of progression. . . The legislative history contains no suggestion that any one system was preferred.
431 U.S. at 355, note 41, 97 S.Ct. at 1864-65, note 41.
The plaintiffs and Commission also contend that two Fifth Circuit decisions support their position. While Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 240 (5th Cir. 1974), contains relevant language favorable to the Commission, this decision was handed down before Teamsters changed the law, and must be read in that context. James v. Stockham Valves & Fittings Co., 559 F.2d 310, 338 (5th Cir. 1977), quoted the above language from Pettway in a context completely removed from seniority. James held that a dual scoring system which preferred job bidders within departments was unlawful. This had nothing to do with the seniority system, which was treated separately. James therefore makes no attempt to lay down the rule which *28 plaintiffs and the Commission urge, to-wit: that any sort of preference is, as a matter of law, not part of a seniority system. Accordingly, the court finds that the divisional preference in the instant action is a protected part of Anaconda's seniority system. See also Alexander v. Aero Lodge No. 735, I.A.M., 565 F.2d 1364, 1378 (6th Cir. 1977).
B. Factors in determining the Bona Fides of a Seniority System
The court must next consider whether the seniority system in question was bona fide and thus entitled to the protection afforded by section 703(h). Under the system involved in Teamsters, competitive seniority was accumulated only within separate bargaining units existing for line (over-the-road) drivers and city drivers. A city driver wishing to become a line driver had to forfeit all his seniority. As noted, the Court recognized that this system operated to "freeze" black and Spanish-surnamed employees into city driving jobs, but held that it was nonetheless a "bona fide" system protected by section 703(h), reasoning as follows:
It [the seniority system] applies equally to all races and ethnic groups. To the extent that it "locks" employees into non-line-driver jobs, it does so for all. The city drivers and servicemen who are discouraged from transferring to line-driver jobs are not all Negroes or Spanish-surnamed Americans; to the contrary, the overwhelming majority are white. The placing of line drivers in a separate bargaining unit from other employees is rational in accord with the industry practice, and consistent with [National Labor Relations Board] precedents. It is conceded that the seniority system did not have its genesis in racial discrimination, and that it was negotiated and has been maintained free from any illegal purpose. In these circumstances, the single fact that the system extends no retroactive seniority to pre-Act discriminatees does not make it unlawful.
431 U.S. at 355-56, 97 S.Ct. at 1865. The Fifth Circuit interpreted this language in James v. Stockham Valves & Fittings Co., supra, at 351, to mean that "the issue of whether there has been purposeful discrimination in connection with the establishment or continuation of a seniority system is integral to a determination that the system is or is not bona fide." It further noted that "the totality of the circumstances in the development and maintenance of the system is relevant to examining the issue." Id. The Court then extracted the following four factors from Teamsters to be used to determine whether a system is bona fide:
(1) whether the seniority system operates to discourage all employees equally from transferring between seniority units;
(2) whether the seniority units are in the same or separate bargaining units (if the latter, whether that structure is rational and in conformance with industry practice);
(3) whether the seniority system had its genesis in racial discrimination; and
(4) whether the system was negotiated and has been maintained free from any illegal purpose.
Id. at 352. These guidelines will now be applied to the present facts.
(1) Equal Discouragement. Anaconda's seniority system is facially neutral, applying to all bargaining unit employees. While the plaintiffs attacked the administration of job tryouts, their major complaint regarding the seniority system, apart from their contention that it perpetuated past discrimination, was that it discouraged black employees from bidding on jobs outside the seniority division in which they worked, particularly jobs in the Maintenance and Tooling Division. Because there have always been more whites than blacks outside this division, any discouragement clearly lacked racial effect or motivation.[12]
*29 (2) Rationality of Seniority Units Vis-a-Vis Bargaining Units. Unlike Teamsters, the separate seniority divisions in this case are contained in a single bargaining unit. The court finds that the seniority divisions served the business purpose established by the company: to encourage and maintain a skilled pool of employees performing the major production, as well as maintenance and tooling, functions. This was in accordance with industry practice nationally, as shown by the evidence.
(3), (4) "Genesis" of System; Negotiation and Maintenance of System. Although James initially listed these as two separate factors, the court later analyzed them together, see 559 F.2d at 352-53, and this approach will be adopted here. Section 703(h) protects the operations of seniority systems unless they are "the result of an intention to discriminate . . .." Thus, the ultimate issue is intentional discrimination in the creation or maintenance of a seniority system.
The seniority system in the present case was originally negotiated in 1956, contemporaneous with the establishment of the Local Union as bargaining representative. The testimony of union and company negotiators who took part in these and subsequent negotiations established that two of the four union members on the initial union bargaining committee were black. These two employees,"Shorty" Slaton and Howard Clifton, had participated in the successful effort to organize the Local Union at American Art Metals as a racially integrated local. Evidence also established that the union negotiating committee of four or five contained at least one, and generally more, black members in all negotiations.
The testimony was that at the original negotiations the union proposed plantwide seniority while the company proposed departmental seniority. The company was concerned about the diversity of the work done in the various production and maintenance functions. It also feared that plantwide seniority would produce chaotic results as bidders with no prior experience in a particular job would have the right to try out on that job, increasing greatly the time and expense involved filling vacancies. This position was consistent with industry practice. Anaconda established that many of its higher-rated hourly jobs require special skills, and the company therefore sought to develop a group of skilled employees in each division and to avoid a long and costly series of qualifying tryouts on every job vacancy. The union proposed plantwide seniority as the system allowing the maximum potential mobility for every employee. In the second contract negotiated one year later, the forfeiture of divisional seniority on transfer was eliminated. In 1961, plantwide seniority was established as the determinant in bidding, except that divisional incumbents could exercise their plant seniority before nonincumbents. Several other changes were made with regard to layoffs and "bumping". Finally, in 1977, plantwide seniority for all purposes was negotiated when it appeared that there would be no contract without it.
There was a six-week strike in 1965 which involved the seniority issue. Two class members testified that the whites in the union always voted down plant seniority, while the blacks always supported it. This testimony was overcome by numerous other witnesses who testified that union members did not divide on racial lines over this issue. The votes to strike and to end the strike (without full-fledged plant seniority) make this conclusion virtually inescapable. Based on the approximately even racial breakdown of the union, the large number of members voting, and the overwhelming final tallies, it is clear that the vast majority of union members of both races voted to strike for plantwide seniority and to end the strike without it. In 1974 through 1977, petitions were circulated by the union to discover members' feelings on plantwide seniority. The only petition returned was that circulated in the Maintenance and Tooling Division. Five of the six black employees in the division at that time voted against plantwide seniority. This *30 strongly suggests that the real split in the bargaining unit was craft versus noncraft, rather than white versus black.
Several witnesses who participated in contract negotiations denied any racial motivation concerning the seniority system. There was no direct evidence to the contrary. The court is aware of the general practice of racial segregation in Atlanta, Georgia in 1956. However, this fact does not lead to the inference that the seniority system itself was "the result of an intention to discriminate" in the language of section 703(h). As the district court noted in Swint v. Pullman-Standard, 17 F.E.P. 730, 737 (N.D.Ala.1978), "[B]ased on the very extent of such other forms of discrimination, it may well be that racial considerations were not involvedbeing `unnecessary'in the development of a particular practice."
The conclusion that the seniority system was created and maintained without a racially discriminatory motive is buttressed by certain exhibits indicating the widespread utilization of departmental seniority systems in manufacturing plants all over the United States about the time that this system was adopted at Anaconda. One of these was a United States Department of Labor publication dated 1949 which stated that employers generally favored departmental seniority and unions generally favored plantwide, for economic reasons having nothing to do with race. Two other exhibits contain examples of actual collective bargaining agreements executed before and after 1965 which contained divisional or departmental seniority provisions. These involve companies and unions all over the United States, indicating the typicality of this practice in various industries.
Plaintiffs have argued that the system has not been maintained free from any illegal purpose because Anaconda has circumvented the system in order to perpetuate discrimination. In short, they contend that the company has transferred job classifications among the divisions to keep black employees from obtaining the high-paying, more desirable jobs. The history of the specific changes complained of negates any racially discriminatory purpose, however.
The new union contract, effective August 30, 1968, made some major overhauls in the seniority divisions and job classifications for purposes of efficiency and economy. One of these changes was to transfer the job of Maintenance Porter, which had existed in the Maintenance Division only from 1965 to 1968, to a separate Labor Division. The testimony established that this was essentially a custodial or janitorial job consisting of sweeping and cleaning up all over the plant. It was not a training position for jobs in the Maintenance Divisionalthough, of course, employees in that job could use the divisional preference in bidding for higher maintenance jobsand therefore its inclusion in this division was less logical than its placement into a separate division, based on the type of work performed. Further, under the divisional seniority system, employees with seniority in other divisions generally had to bid down into the low-level maintenance jobs to enter the Maintenance Division. The company sought to remedy this situation by instituting a maintenance training program and removing the unattractive Maintenance Porter job. This testimony was confirmed by union witness W. W. Hudson, who testified that the porter job was unattractive and was replaced by maintenance trainee positions. Thus, the company's legitimate business purpose in eliminating the Maintenance Porter position is clear.
Plaintiffs also complain of the transfer of the Die Corrector A classification from an integrated division to the Maintenance and Tooling seniority division, which upon the transfer of the Maintenance Porters no longer had any black employees. The testimony established the company's business purpose in making this change: to collect all "craft" positions into one seniority division. A new man was apparently in charge of the extrusion press in 1968 and felt it necessary to improve the supervision and product of the Die Correctors. By placing them in the Tooling department, they were given a separate work area with good tools and proper supervision. The result was a *31 better product and more training for the Die Correctors; the purpose of this move was economic.
As to the alleged racial effect of these changes, plaintiffs suggest that the transfer of the four Die Corrector A positions to the Maintenance Division harmed the black workers in the Die Correctors' old division by removing their preference in bidding. However, another result of the changes begun in 1968 was the initiation of craft training programs, including that of Die Corrector B as the entry-level position prior to Die Corrector A. Die Corrector B, although in the Maintenance Division, was open to bidding plantwide, as were all trainee craft positions in that division. Thus, there was no adverse effect, since no one within the division would want to bid down to an entry-level trainee position. Moreover, the evidence reveals that as of June 1, 1968, there were twenty-one whites and six blacks in positions other than Die Corrector A in the old division. The adverse impact, if any, was therefore greater upon whites than blacks. Thus, there was neither a discriminatory purpose nor effect in the transfer of the Die Correctors. Plaintiffs have also argued that the transfer of the porter jobs was improper and discriminatory, at least in part, because white maintenance porters were permitted to remain in Maintenance but black porters were not. The evidence reveals that sometime prior to the contract changes made in 1968 certain of the white porters bid into Maintenance Repairman positions. The bid lists and testimony demonstrate that none of the black porters bid on higher maintenance jobs, although several porters of both races bid out of the Maintenance Division. Further, when the porters' job classification was changed and placed in a separate division, both white and black former maintenance porters became laborers in the new division. It therefore appears that Anaconda transferred the Maintenance Porter job classification, which included employees of both races, in good faith to a more appropriate location, as was its prerogative.
Plaintiffs also questioned the creation of the new classification of Maintenance Helper in 1968, apparently because the four positions were filled by whites only. This position was created under the 1968 contract as an entry-level maintenance position to be posted plantwide. The exhibits demonstrated that the four employees who took these jobs took pay cuts in order to become Maintenance Helpers. Moreover, the bid lists for these jobs show that the senior bidder was F. Webb, a black employee; he turned down the job. Mr. Webb did not testify at the trial, and the court declines to infer, as plaintiffs would have it do, that there was anything coerced in his rejection of the job. The lists further demonstrate that these jobs went to the senior bidders based on strict plantwide seniority except one, and that the individual who was rejected on that occasion was white.
Plaintiffs further contend that the elimination of positions in the Maintenance and Tooling Division in 1977 supports their argument that the seniority system was not bona fide. The evidence is to the contrary. To implement the recommendations of an outside efficiency consulting firm, the John Charles Company, six maintenance positions, including two Maintenance Repairmen A and four Maintenance Repairmen B, were eliminated in 1977. Three black and three white employees were cut based on seniority within these two job classifications. Since then, as the most recent seniority roster reflects, seven employees have been added back to Maintenance, including three blacks.
The court concludes that none of the incidents cited by plaintiffs can support a finding that the seniority system was maintained with an illegal purpose. It therefore holds, based on the individual factors, as well as the "totality of the circumstances", that the divisional priority was an integral part of Anaconda's seniority system and that the seniority system is bona fide and therefore protected under section 703(h) of Title VII. This decision, of course, answers plaintiffs' claim that the divisional preference is an improper and discriminatory employment practice as well.
*32 3. Anaconda's Statistics
Having reached this result, the court must now determine whether the disparity between the number of black and white employees in the Maintenance and Tooling Division, demonstrated by plaintiffs' statistics, is attributable to the workings of the bona fide seniority system or to other causes. Anaconda proffered expert testimony through Dr. Donald Jewell concerning the filling of vacancies within the Maintenance and Tooling Division from October, 1968 to July, 1977. Dr. Jewell conducted an "opportunities" analysis of all available bid records during that time period for all jobs within that division. He found that from 1968 to 1977, there were 124 openings in maintenance and tooling jobs and that 99 or 80% of these vacancies were awarded through the bidding process. Twenty-five or 20% of the positions were bid on but not awarded. Of bids awarded, eleven or 11% went to black employees. Sixty-six or 67% of all openings awarded (99) were filled by the most senior bidder[13] who accepted the bid. In those twenty-seven situations where the most senior bidder was not offered the position,[14] there were (a) four instances (11%) where a white was awarded the job over a more senior black, (b) five instances (14%) where a black was awarded the job over a more senior white, (c) twenty-one instances (60%) where a white was awarded the job over a more senior white, and (d) five instances where a black was awarded the job over a more senior black. In the twenty-five instances where openings were not awarded to any bidder, a black worker was the most senior in five instances, a black was the only bidder and was awarded a job but turned it down in one instance, and a white employee was the senior bidder in nineteen cases. On the basis of these statistics Dr. Jewell concluded that seniority was the primary factor upon which bids were awarded and that when it could not be ascertained from the records that strict seniority was controlling, no pattern of discrimination was shown. He also concluded that no pattern of discrimination was shown in those cases where the job was withdrawn and not awarded.
The study further revealed that the proportion of black workers bidding on jobs in the Maintenance and Tooling Division (30%) was comparable to the weighted average of black employees in the bargaining unit (36.9%). Similarly, the percentage of refusals by black employees offered the job (33%) was in keeping with the bidding percentage. These figures suggest that black employees participated fully in the bidding for jobs in this division and were not coerced into refusing the positions when offered.
Dr. Jewell also made a special study of the position known as Maintenance Repairman B, which was the entry-level job for the Maintenance Division during most of the relevant time period and one of the positions on which claims of discrimination focused. Of nineteen openings, eight or 42% were filled by black employees, and 33% of all bidders for these positions were black. In those instances where the position was not awarded to the senior bidder, there were (a) four instances (31%) where a black was awarded the job over a more senior white; (b) one instance (8%) where a white was awarded the job over a more senior black; (c) three instances (23%) where a white was awarded the job over a more senior white; and (d) five instances (38%) where a black was awarded the job over a more senior black. Dr. Jewell noted that black workers fared better than would be expected when compared to their average percentage in the bargaining unit (36.9%) or to their percentage of bids (33%) and concluded that Anaconda seemed to be making a special effort to place black employees in this entry-level position.
*33 Anaconda has demonstrated that the majority of maintenance and tooling jobs were awarded to the most senior bidder under the seniority system and that with regard to those positions not awarded to the most senior or to any bidder no inference of racial discrimination is possible. Because the seniority system is bona fide, its normal operations are immune from attack under Title VII and section 1981. Therefore, to the extent that individual job awards and overall statistics reflect the working of the seniority system, they do not prove violations of Title VII. The court concludes that plaintiffs' statistics, indicating the small percentage of black employees in the Maintenance and Tooling Division, have been explained and rebutted by Anaconda and, accordingly, give rise to no inference of discrimination in promotions or transfers within the bargaining unit.[15]See Alexander v. Aero Lodge, supra, at 1383.
4. The Tryout System
In addition to the divisional preference, plaintiffs attack the system of on-the-job tryouts utilized by the company. They contend that such tryouts are subjective and are administered in a racially discriminatory manner with the result that black employees have been excluded from the more desirable, higher-paying jobs.
As noted above, the right to obtain a job tryout is governed by the seniority system. Anaconda has delegated to its foremen the responsibility for administering and determining satisfactory performance on such tryouts. The Maintenance Superintendent, or the appropriate head of the other overall departments, then makes the final decision on the tryout, based primarily on the recommendation of the foreman who administered it.
There are basically two types of job tryouts employed by Anaconda. In the simpler production jobs, such as packing doors, the tryout simply consists of performing the job itself. Successful completion of the tryout is generally defined in terms of production standards, which under different names the company and its predecessor have used for years. Under the present system, the jobs are rated in terms of realistic time values (RTVs). For example, a job involving the packing of doors might have a standard of ninety doors packed per hour. At the beginning of a tryout, the production standard or RTV is explained to the candidate, and candidates having trouble meting the standard are counseled by the foreman during the tryout. By the terms of the contract, the employee must demonstrate the ability to perform the job within the tryout period. While the production standards and RTVs are apparently in writing, no written guidance as to how rigidly they are to be applied has been established. In practice, however, it appears that the employee is not expected to reach the final production standard during the tryout period. Rather, the candidate is expected to show improvement over the three days and to achieve between 85 and 90% of the standard by the end of the last day. Finally, it is somewhat unclear for which of the production jobs these standards were actually used.[16]
*34 In the area of maintenance and tooling jobs, the tryout is somewhat different. Because the maintenance employees are required to prepare and maintain every piece of machinery in the plant, because of the number and complexity of these machines, and because maintenance employees must be able to work independently and use their own judgment as to diagnosing and repairing "down" machinery, maintenance tryout candidates are required to perform a series of tasks which cover various skills they will need in performing their duties. For example, on a Maintenance Repairman B tryout, an employee is given tasks which include welding, work at heights, and repair of less complex machinery. The candidate might be required to build an anodizing rack or buffing hood (which task tests ability to read blueprints, to cut and drill, and to weld), to paint from a ladder the tops of tanks, and to tune up a forklift or other simple piece of machinery. A tryout of this nature, adjusted to the increased skills needed, is given for the higher maintenance positions. To the extent possible, candidates trying out for a particular opening are given the same or equivalent tasks. This is more true for the lower-level jobs since the tryouts on higher job classifications often involve repairs on whatever equipment happens to be "down" at the time. The bulk of these maintenance tryouts were administered by either Ray Gardner or John Snelling, both of whom are white foremen,[17] and, as a general rule, tryouts for a specific vacancy are conducted by the same foreman.
In all tryouts, the employee is informed at the end of the third day by the foreman and the foreman's supervisor as to whether he passed or failed. In certain instances in which an employee demonstrates substantial potential but does not completely pass the tryout, a thirty-day extension of the tryout period can be granted. A dissatisfied employee can also initiate contractual grievance proceedings after the tryout. The thirty-day extension policy, originally begun unilaterally by the company, was utilized several times in maintenance tryouts for black employees who showed sufficient ability in some areas but not others, such as, for example, welding.
Apart from the production standards or RTVs previously discussed, Anaconda has not furnished its foremen or supervisors with any written guidelines, standards, procedures or instructions to explain how tryouts should be conducted, which tasks should be assigned, or what level of assistance employees should receive, although the testimony indicated that, even absent standards, tryouts at least for the entry-level maintenance jobs are relatively uniform in terms of the tasks assigned and have been for some time. Nor has Anaconda established any standardized objective criteria for evaluating the quality or quantity of an employee's performance during a tryout. For example, welding is judged by visual inspection and by tapping the welded item on the floor to see if it will hold or bend.
Prior to 1977, the company did not require that a written evaluation of an individual's performance on a tryout be kept although certain foremen did make such records. Beginning in that year, however, it instituted use of a standard Qualification/Disqualification form which is used for all jobs in the bargaining unit. The form is not geared to each specific job, however, and does not contain any explanation of how it should be completed or used.
Plaintiffs apparently have sought to prove discrimination under the tryout system by means of both disparate impact and disparate treatment. To prevail under the latter theory, they must show a pattern or practice of purposeful discriminatory treatment of black employees. Plaintiffs contend that Anaconda systematically denied many black employees a tryout period as long as or easy as that provided for whites, that the company provided assistance to whites but not to blacks, and *35 that the company engaged in or condoned harassment of black tryout candidates. The latter two contentions may be disposed of easily. While certain instances of these types of discrimination may have occurred, especially prior to 1965, the evidence was clearly insufficient to support an inference of systematic, classwide discrimination under these headings. As to the first contention, there was considerable conflicting testimony from black employees and from supervisory personnel concerning the content of specific tryouts on various jobs. Most of these tryouts occurred prior to January 18, 1969 and a substantial portion of these prior to July 2, 1965. Many others were not dated. None of these events can be used to fix liability. As to the remaining tryouts, which occurred within the relevant time frame, several involved instances where either another black employee got the job, another black employee had previously held the job, or the unsuccessful black candidate got the same or a better job within a very short time thereafter, frequently as a result of additional training. The handful of remaining instances of alleged discrimination, even if given credence, are simply too few and far between over the lengthy time period and large number of persons involved to constitute a pattern or practice of disparate treatment by any stretch of the imagination.
Plaintiffs' attack on the subjective nature of the tryout the lack of written, standardized procedures and the subjective judgment of supervisors in promotional decision-making seems, on the other hand, to fall under the disparate impact theory. In this regard, the reasoning of the Supreme Court in Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975), becomes relevant:
In Griggs v. Duke Power Company, 401 U.S. 424 [, 91 S.Ct. 849, 28 L.Ed.2d 158] (1971), this Court unanimously held that Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets "the burden of showing that any given requirement [has] . . . a manifest relationship to the employment in question." Id. at 432 [, 91 S.Ct. 849]. This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination, i. e., has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants.
(Citations omitted.) Plaintiffs in the instant action failed to introduce statistics relating to pass/fail rates under the tryout system, and there was no direct and relevant evidence tending to show that the system is discriminatory in effect. Plaintiffs appear to rely instead on the statistical evidence previously discussed in detail. As noted earlier, however, see text at 24, the only possible area in which the statistics give rise to an inference of discrimination is in the Maintenance and Tooling Division, and Dr. Jewell's findings make clear that any adverse impact suffered by black employees in attempting to enter that division during the relevant time period resulted from the bona fide functioning of the seniority system and not from a discriminatory tryout system. In fact, Dr. Jewell found that 42% of the Maintenance Repairmen B positions were filled by black bidders. Thus, black employees fared better than would be expected when compared to their overall percentage in the bargaining unit. As stated earlier, Dr. Jewell also found that in the instances where a job may not have been given to the most senior bidder, blacks received a greater percentage of the openings than when the most senior bidder received the job. This suggests that even where seniority could not be conclusively established, black employees did not suffer from discrimination. In addition to rebutting any inference of disparate impact, these statistics also tend to rebut any pattern of disparate treatment in the operation of the tryout system.[18]
*36 5. Other Practices Regarding Bargaining Unit Employees
The Commission and the plaintiffs have raised several other alleged unlawful employment practices in relation to bargaining unit employees. These will be dealt with seriatim in this section.
A. Job "Residency" Requirements
The Commission attacks "residency" requirements for five job classifications contained in the Maintenance and Tooling Division which were imposed under the collective bargaining agreement in force from 1974 through 1977. These requirements were as follows:
Machinist Class AA Four Years as a Machinist Class
A with die experience
Tool & Die Maker Four years apprenticeship as
tool & die maker, or five years
as AA or master machinist
Master Electrician Five years as an electrician
Master Die Corrector Five years as die corrector
Millwright Four years as a class A maintenance
repairman
The Commission contends that these requirements were imposed in jobs filled exclusively by whites and had the effect of excluding blacks from the jobs, and it is true that during the time period in question only whites (fourteen in all) filled these jobs.
Initially it must be noted that the term "residency" is a misnomer. Nowhere does it appear in the collective bargaining agreement. Rather, the period of time in question is an "apprenticeship" system under which employees were required to gain the experience in one job for a certain period of time before moving into a higher position requiring the mastery of substantial skills. It is significant that with the exception of Machinist Class AA, the other job classifications for which there were apprenticeship requirements were newly created under the 1974-77 collective bargaining agreement. In effect, they were added as upgrades for existing classifications when an employee had obtained sufficient mastery of skills. Moreover, testimony from both company and union witnesses indicated that apprenticeship requirements of this sort existed nationally in these crafts. In view of the fact that there were more white than black employees in the Maintenance and Tooling Division, the evidence submitted does not support the contention that this facially neutral practice impacted adversely on black employees or was adopted for a discriminatory purpose.
B. Temporary Job Assignments
Both the Commission and the private plaintiffs complain that Anaconda systematically assigned senior black employees to the less desirable and less valuable temporary job assignments, while assigning white employees with less company seniority to the more desirable or more valuable job opportunities, which provided more training for promotions. This is purely a claim of disparate treatment. Several black employees testified that they received such inferior assignments, while several supervisors testified that they did not award temporary job assignments on any basis other than which employee was available. Apparently a great deal of the dissatisfaction with temporary assignments to lower-rated jobs arose during the time period 1967 to 1969 when several black employees, including the named plaintiffs, were transferred from the Interior Door Department to the Custom Department.[19] Because these new employees had no experience with the more complicated machinery and procedures in Custom, their foreman found it necessary when work was slack to fill temporary job assignments outside the Custom Department with these new and less experienced employees, rather than the older and more experienced employees already in that division, and their assignment to lower-rated temporary jobs caused dissatisfaction for the plaintiffs and other witnesses, who *37 thought erroneously that the contract provided for all temporary assignments by seniority. The contract did not then or ever provide that lower-rated jobs had to be assigned to the junior employees. Section 10(c) of the collective bargaining agreement provided that the company had the right to assign employees to other work classifications so long as temporary assignments to a higher-rated job "shall be assigned to senior employees when practicable or assigned for no duration of more than two weeks. Further, junior employees will not be consistently assigned to a higher rated job for the purpose of qualifying such employees for such higher rated job(s)." No specific evidence was presented to show that this provision was violated. What was perceived as racial discrimination therefore appears to be merely the supervisors' attempt to keep the division running with the most qualified and experienced employees. The evidence shows that once the new black employees in Custom took training courses made available by Anaconda in 1968 and 1969, they advanced rapidly. The named plaintiffs currently hold the top positions in Custom, which are among the highest-paid jobs in the plant, and several other witnesses who testified for the plaintiffs also hold high-paying positions in Custom. In view of the foregoing, the court finds no pattern or practice of discrimination with regard to such assignments.
C. Elimination of Job Classifications
Plaintiffs charge that Anaconda has engaged in a pattern of eliminating, merging and transferring job classifications or employees, with the purpose or fact of increasing racial segregation. They question several such job changes, many of which occurred in 1968. Any such changes occurring prior to January 18, 1969, would, of course, not be the basis of liability. The only post-1969 changes under this heading concern the elimination and later replacement of several jobs in the Maintenance Division.
Plaintiffs apparently contend that the company's failure to continue the Maintenance Helper position, created in 1968, was racially motivated. The evidence reveals that such is not the case. The Maintenance Helper position simply did not work out. Insufficient bids were received for it, perhaps because senior workers had to take a pay cut to take this job. In order to attract more senior workers into maintenance training positions, the company unilaterally decided, sometime in 1969 or 1970, to ignore this classification and therefore not fill any more of these positions and to put into effect a pay retention program for Maintenance Repairman B. This latter position therefore became the lowest level job in Maintenance once the individuals employed as Maintenance Helpers transferred out of that classification. The court cannot conclude that this decision was intended to further racial segregation. Nor will the removal of six jobs in the Maintenance Division in 1977, pursuant to the recommendations of an efficiency expert, which change was discussed earlier in this order, give rise to such an inference. The pre-1969 changes complained of have also been discussed previously, in connection with the bona fide seniority system; the evidence indicated legitimate business purposes for these decisions, and no racial impact was shown. The court therefore concludes that there was neither discriminatory purpose nor effect in this area.
D. Exclusion from Training Programs
Plaintiffs contend that Anaconda has systematically denied black employees the opportunity to participate in formal training programs and training jobs by exclusion or elimination of the opportunities. The evidence fails to support their position. They contend, for example, that after the abolition of the Interior Door Department in 1967 and transfer of its employees to the Custom Division, black employees were prevented from using their seniority to "bump" into the Maintenance Division. This complaint was arbitrated with no success. In addition, in response to charges filed with it, the Commission determined, after investigation, that the charging parties fared no worse than some of their similarly placed *38 white counterparts, and better than others. Plaintiffs have offered no evidence which suggests that this conclusion was incorrect.
Plaintiffs also argue that black employees have been excluded from the maintenance training programs. This is clearly untrue with regard to the Maintenance Repairman B jobs, inasmuch as Dr. Jewell's study revealed that black bidders obtained 42% of those jobs; no evidence within the relevant time period was offered as to the other training positions. That a black worker did not enter the maintenance repairman program until January, 1973, although this classification was designated a "trainee" position some time in 1969, is not probative. First, the vacancy filled by a black employee in 1973 was only the second to be posted on which no former Maintenance Helpers would be able to exercise a divisional preference, and thus, only the second opening after the position actually became an entry-level job. In addition, two senior black bidders, Daniel and Fulton, had been given tryouts the only other time the position had been posted as an entry-level job, during the summer of 1971. Both of these employees failed the tryouts. Daniel did not testify at the trial and thus no inference can be drawn as to his qualifications. Fulton did testify, and certain racks which he welded during the tryout were introduced into evidence. The court concludes, on the basis of these objects, that Fulton was not qualified for the job, and thus, it can draw no inference regarding the exclusion of blacks from these training positions. It appears from the bid list for the 1971 vacancies that two white workers who were senior to Fulton, and others who were junior to him, were also turned down. On the basis of the foregoing, the court finds that the training jobs in the Maintenance and Tooling Division were fully available to black employees.
E. Tests and Educational Requirements
One facet of the plaintiffs' attack on Anaconda's selection methods is its allegation that "racially discriminatory tests and educational requirements, which have not been validated as accurate predictors of successful performance but which have excluded a disproportionately high percentage of black employees from Anaconda's higher-paying and more desirable jobs and training programs" have been employed. As to educational requirements, the Commission failed to establish that any such formal educational requirements ever existed. In the collective bargaining agreements applicable to hourly jobs, educational requirements are not a criterion, and the testimony was uncontroverted that no such requirements have ever been imposed as to any hourly job.
As to testing, plaintiffs proffered an interrogatory and response from the company which stated that various tests were given prior to 1969 for various job classifications. The uncontroverted testimony was that the Wonderlic test, discontinued in 1968, was purely an initial hiring test; it therefore has no bearing on this action. Any other tests which may have been given occurred in isolated instances prior to January 18, 1969, with one exception. It appears that the Bennett Mechanical Comprehension Test was given as late as 1970. The testimony revealed, however, that this test was not used as a prerequisite to a tryout but was used to measure a candidate's strengths and weaknesses in various areas so that his training would be expedited if he passed the tryout. There was no evidence that this test was used to bar anyone from a job or a tryout in the Maintenance Division, particularly within the relevant time period. The court therefore concludes that plaintiffs have failed to demonstrate a pattern or practice of allegedly discriminatory testing. Moreover, they have established no disparate impact as to either the educational requirements of the testing in the event they are found to exist. See Albemarle Paper Co., supra.
Promotions to Supervisory Positions
At trial, both the Commission and private plaintiffs presented testimony concerning promotions to salaried positions, particularly supervisory positions. Before considering this evidence, the court must resolve *39 Anaconda's contention that the scope of this action should be limited to claims related to hourly paid job classifications and should not include any claims related to the filling of salaried vacancies since the Commission, among other things, failed to conciliate these issues.
The charges of discrimination filed by plaintiffs Harris and Hillman state, in regard to promotions, "I have worked for this company almost fourteen years, and I have always been held back because of my race." The Commission contends that its resulting investigation and reasonable cause determination were concerned with racial discrimination in promotions generally and were not limited to promotions to hourly jobs. It states that on or about October 30, 1970 it issued and served upon Anaconda its "Regional Director's Findings of Fact" which included the following:
Promotional Opportunities
Witness A (Negro) applied for an opening as an accountant and feels he did not receive proper consideration for the opening.
. . . . .
Witness C (Negro) states "there are a lot of things the black man has to go through in order to qualify for a specific job classification." Yes, Negroes have advanced to supervisory petitions [sic] but he feels it is more or less "window-dressing" in his opinion and is only a token gesture.
. . . . .
The conditions stated above tend to deny to Negro employees promotional opportunities which are open to Caucasians.
Between February 6, 1973 and July 19, 1974, the Commission endeavored to eliminate the alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion but was unable to secure a conciliation agreement acceptable to it. The Commission therefore contends that Anaconda had an opportunity to conciliate with it on the issue of promotions generally and that whether actual negotiations occurred with regard to the narrow issue of promotions to salaried jobs is irrelevant. It believes the important fact to be that the Commission gave Anaconda an opportunity to negotiate a "conciliation agreement acceptable to the Commission" within the meaning of Section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1).
The law is clear that the Commission may not litigate items of alleged discrimination which were not included in its investigation, fact findings, and conciliation efforts. As stated by the court in EEOC v. General Electric Co., 532 F.2d 359, 366 (4th Cir. 1976):
In other words, the original charge is sufficient to support the action by the EEOC as well as a civil suit under the Act for any discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge, provided such discrimination was included in the reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures fixed in the Act.
(Emphasis omitted.)
In EEOC v. Sherwood Medical Industries, 17 F.E.P. 441 (N.D.Fla.1978), the court discussed this issue at length and held that because a reasonable cause determination and an effort to conciliate are statutory prerequisites to the Commission's right to sue, only the specific issues encompassed therein can be raised by the Commission in a civil action.
[E]very decision recognizing the right in the Commission to expand its investigationand ultimately its judicial complaintbeyond the scope of the charging party's charge, has presupposed that the additional employment practices complained of were included in the conciliation attempt along with the original charge. . . .
The only construction of the statute which is at all in harmony with the Congressional desire for conciliation is that the Commission's authority to sue is conditioned upon full compliance with the administrative process investigation, determination, and conciliation with respect *40 to each discriminatory practice alleged. "Congress, committed as it was to voluntary compliance, could not have intended that the Commission could attempt conciliation on one set of issues and, having failed, litigate a different set." EEOC v. E. I. DuPont de Nemours and Company, [373 F.Supp. 1321, 1336 (D.Del.1974)]. . . .
Id. at 445. See, e. g., EEOC v. Federated Mutual Insurance Co., 16 F.E.P. 820 (N.D. Ga.1976) (O'Kelley, J.); EEOC v. Brown Transport Corp., 15 F.E.P. 1063 (N.D.Ga. 1976) (Hill, J.); EEOC v. Griffin Wheel Co., 12 F.E.P. 523 (N.D.Ala.1976).
An examination of the Regional Director's Findings of Fact, the Commission's Determination, and, especially, its proposed conciliation agreement in the present case, reveals that, with the exception of the witness statements quoted above, the Commission's involvement through the process of investigation, determination, and conciliation was limited to issues relating to the bargaining unit. Further, while it argues that it has met its burden to conciliate, the Commission does so in language which makes clear that conciliation on promotions to supervisory positions did not occur. Accordingly, under the existing law, the court concludes that the Commission is barred from now raising the issue of discriminatory promotions to supervisory positions.
This does not resolve the question completely, however, since the scope of a private plaintiff's suit is not limited by the Commission's failure to conciliate as to a particular claim. It is well-established that the scope of a private civil action under Title VII is limited only by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge. Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). In Gamble v. Birmingham & Southern R. R., 514 F.2d 678, 688 (5th Cir. 1975), a charge alleging "I was not allowed to promote to conductor" was held to be sufficiently like or related to an allegation in the charging party's complaint that he had been denied promotion to a supervisory position to allow the plaintiff to pursue the latter allegation, notwithstanding that the Commission had neither investigated nor attempted conciliation on the issue.
Anaconda admits that plaintiffs Harris and Hillman would have been able to raise the supervisory issue in this lawsuit on the basis of the statements in their original EEOC charges that they had "always been held back" in terms of promotions because of their race, in view of the company's "promotion from within" policy. It contends, however, that plaintiffs' failure to raise this issue specifically in their complaint must now prevent its consideration by this court. In addition, they note that in response to interrogatories served by Anaconda on plaintiffs, plaintiffs never complained of discrimination in promotions to salaried or supervisory positions. It appears that this issue was first specifically raised in pleadings by the private plaintiffs in the Pre-trial Order, filed in 1978. Anaconda therefore argues that as a result of plaintiffs' delay in raising the supervisory question and undue prejudice to the company, the doctrine of laches should preclude them from now seeking to litigate the issue. See text, supra, at 20.
Under normal circumstances the court would agree. Here, however, there are extenuating factors which require a finding that the test for laches has not been met. Although plaintiffs have engaged in an unreasonable delay in specifically addressing this issue in their pleadings, the court cannot conclude that Anaconda has been prejudiced as a result of the delay. It admits in its briefs that it became aware during depositions and other discovery in 1976 that promotions to supervisory or salaried positions were involved in this action, and yet at no time did it seek to have such matters dismissed from the case. Neither did it, upon receipt of the pre-trial order, attempt to obtain a continuance of the trial to enable it to prepare itself for a new attack. The conduct of the trial makes clear why no such motions were presented; the company was well-prepared to address this question, both through the testimony of *41 witnesses and statistical evidence, and had suffered no prejudice from the lapsed time. Accordingly, the court concludes that the individual plaintiffs are not barred by laches from litigating the question of discrimination in promotions to supervisory or salaried jobs in connection with their individual claims or on behalf of the class which they represent. The court will therefore consider the merits of this allegation.
At all times relevant to this suit, Anaconda has had a policy of "promotion from within." As provided in a "Personnel Policies Practices" statement:
The Company intends to afford each employee every opportunity for advancement consistent with individual ability and interest, and to insure that each employee is working in the job for which he or she is best suited. When personnel vacancies occur, it is the policy to promote from within, provided qualified individuals are available to meet the requirements of the vacant positions.
As noted earlier, at all relevant times Amarlite Anaconda has been organized into between six and eight overall departments or work functions under a Vice-President/General Manager. Each of these units is headed by a department manager. One of these department managers, the director of manufacturing, supervises various production managers. Ultimately, the department managers determine whether there is a vacancy in a salaried position in their department. In the manufacturing department, for example, the established procedure requires that the production manager in the area where the vacancy exists fill out a personnel requisition form and submit it to the Employee Relations Department where job descriptions for all salaried jobs are on file. These job descriptions have been prepared previously by the various production managers, and, according to the company, this demonstrates that the manager filling out a requisition is familiar with the requirements of the job in question. Once the Employee Relations Department receives a requisition form, it conducts a search of its personnel files to find qualified candidates to present to the requesting manager. These candidates are then interviewed by that manager and the Employee Relations Manager and a selection is made. Testimony at trial indicated that in practice when the production manager determines that a need for an additional production foreman exists, he discusses with the area foremen working under him which hourly employees have the qualifications for the position. These area foremen or superintendents then discuss with the first line production foreman their recommendations, if any. Thus, several people are involved in the selection process. It appears that a favorable recommendation from the employee's immediate supervisor is of some importance in the process.
The evidence revealed that these procedures were not always rigidly adhered to. It is unclear from the records how often the personnel requisition forms were actually employed prior to 1974. Moreover, prior to 1978, Anaconda did not regularly post notice of all salaried vacancies; an hourly employee who was interested in a promotion to a salaried position could manifest this interest to his foreman, who might later interview that employee when a vacancy developed. Neither does Anaconda provide its managers with specific and objective guidelines, written or oral, to be used in determining which employees are qualified for promotion. Finally, because it has no regular policy regarding the preparation of evaluations of its hourly employees' performance, Anaconda relies on its managers' memories and oral communications to evaluate past performance of employees when those employees are being considered for promotions.
Plaintiffs contend that the foregoing facially neutral practices and procedures operate in a racially discriminatory manner to preclude black employees from promotions to management positions. They therefore appear to rely upon a theory of "disparate impact."[20]See Teamsters, supra, *42 at 335, n.15, 97 S.Ct. 1843. As noted earlier, although the party relying upon an impact theory need not prove discriminatory motive, as is necessary under a discriminatory treatment theory, he must at least prove that the challenged practice does in fact have a substantial adverse impact on a protected group. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 426, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Subjective methodology in and of itself does not violate Title VII. See Hester v. Southern Ry., 497 F.2d 1374, 1381 (5th Cir. 1974).
To this end the parties have introduced the following statistical evidence demonstrating the racial composition of all supervisory and salaried jobs by general category at certain points in time.
June 1, 1969 March 31, 1977 April 1, 1978
----------------------------------------------------------------------------------------------------------------------------
Job All Black All Black All Black
Categories Employees Employees Employees Employees Employees Employees
----------------------------------------------------------------------------------------------------------------------------
Number No. % Number No. % Number No. %
============================================================================================================================
Officials &
Managers 56 1 1.8% 68 4 5.9% 81 7 8.6%
----------------------------------------------------------------------------------------------------------------------------
Professionals 16 0 0 % 14 0 0 % 14 2 14.3%
----------------------------------------------------------------------------------------------------------------------------
Technicians 18 2 11.1% 24 3 12.5% 28 4 14.3%
----------------------------------------------------------------------------------------------------------------------------
Sales 14 0 0 % 17 0 0 % 10 0 0 %
----------------------------------------------------------------------------------------------------------------------------
Office &
Clerical 33 5 15.2% 39 11 20.2% 40 10 25.0%
----------------------------------------------------------------------------------------------------------------------------
TOTALS 137 8 5.8% 162 18 11.1% 173 23 13.2%
----------------------------------------------------------------------------------------------------------------------------
Total Black
Population 462 161 34.8% 420 110 26.2% 512 157 30.7%
In Plant
-----------------------------------------------------------------------------------------------------------------------------
Plaintiffs contend that a comparison of the percentage of black employees in each category to the total black employee percentage in the plant as of each date is appropriate. All but five supervisory employees are included within the "officials and managers" category. A comparison for this group shows that in 1969 Anaconda had only one black supervisor, or 1.8% of those positions, although the plant had a 34.8% black population. Further, in early 1977, the company had only four black supervisors, representing 5.9% of supervisory employees, although the percentage of all black employees was 26.2%. One year lateralthough plaintiffs contend the court should not consider these statistics8.6% of the supervisory positions (seven individuals) were filled by blacks, compared to a 30.7% black population in the plant. Similarly, on June 1, 1969, only 5.8% of all salaried and supervisory positions were filled by blacks although the black plant population at that time was 34.8%. In early 1977, black employees filled 11.1% of these jobs but constituted 26.2% of the plant work force; the figures for 1978 demonstrate that blacks filled 13.2% of all salaried positions while comprising 30.7% of the entire plant population.
Relying on Teamsters, supra, and Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), Anaconda asserts that a comparison of this sort is inappropriate in this case and does not accurately demonstrate whether the practices in question are discriminatory. In Teamsters the Supreme Court noted that:
An employer might show, for example, that the claimed discriminatory pattern is *43 a product of pre-Act hiring rather than unlawful post-Act discrimination, or that during the period it is alleged to have pursued a discriminatory policy it made too few employment decisions to justify the inference that it had engaged in a regular practice of discrimination.
431 U.S. at 360, 97 S.Ct. at 1867. In Hazelwood, referring to this language, the Court stated, "A public employer who from that date forward [the effective date of the act as to it] made all its employment decisions in a wholly nondiscriminatory way would not violate Title VII even if it had formerly maintained an all-white workforce by purposefully excluding Negroes." 433 U.S. at 309, 97 S.Ct. at 2742. It therefore analyzed the percentage of blacks hired as teachers in each of the two years within the relevant time period and computed the percentage over the entire two-year period. The Court then compared this overall hiring percentage (3.7%) to the percentage of Negro teachers in the relevant labor market. See 433 U.S. at 310, 97 S.Ct. 2736.
A comparable analysis was undertaken in Swint v. Pullman-Standard, 15 F.E.P. 144 (N.D.Ala.1977), a case involving promotions to supervisors in a manufacturing plant. There, noting that at the time of trial only 10% of the supervisors were black, the court found that such a statistic could be the result of pre-Act discrimination and could be rebutted by data pertinent to the employment decisions made during the period covered under the EEOC charge. ID. at 150. It then summarized the number and percentage of supervisory promotions going to blacks in the relevant time period. As is true here, this time period went from ninety days prior to the filing of the operative EEOC charge forward. See id. at 146. During this time period, a total of seventy-five promotions were made, of which 24% went to black employees. The court then used this figure for its comparisons, rather than the percentage of black supervisors at the time of trial.
Anaconda has presented, through the testimony of Joseph Diehl, the Employee Relations Manager, evidence which enables this court to trace the promotions of bargaining unit employees to supervisory and salaried positions from 1966 on.[21] Accordingly, the court concludes that the approach suggested in Hazelwood and applied in Swint is the most appropriate. Since we are dealing with the question of promotions from bargaining unit positions to supervisory and salaried positions, the percentage of minorities holding a particular position at any time is substantially less probative than the percentage of qualified minorities filling vacancies during the relevant period, when such data is available. Mr. Diehl's testimony is set forth in chart form below.
White No. Black No.
Year Promotions (Percent) (Percent)
1966 0 0 0
1967 1 1 0
(100%) (0%)
1968 5 5 0
(100%) (0%)
1969 3 2 1
(67%) (33%)
1970 1 1 0
(100%) (0%)
1971 0 0 0
1972 1 1 0
(100%) (0%)
1973 3 2 1
(67%) (33%)
1974 1 1 0
(100%) (0%)
1975 0 0 0
1976 0 0 0
1977 5 2 3
(40%) (60%)
---------------------------------------------------------
Total
All Years 20 15 5
(1966-77) (75%) (25%)
---------------------------------------------------------
Total 14 9 5
1966-77 (64%) (36%)
---------------------------------------------------------
This chart reveals that for the years 1966-77, five, or 25%, of the twenty supervisory promotions awarded to bargaining unit employees went to black workers. From 1969 to 1977, the relevant time period in this case, it appears that black employees received 36% of the promotions, that is, five of the fourteen openings. Dr. Jewell's testimony, discussed earlier in this order, established *44 that the weighted average black population of the bargaining unit from 1967 to 1977 was 36.9%. A comparison of the latter two percentages reveals that the existing selection procedures for supervisors have no disparate impact upon black workers.[22]
Mr. Diehl also testified concerning the numbers of promotions to both salaried and supervisory positions[23] from the bargaining unit from 1966 to 1977. These statistics are as follows:
White No. Black No.
Year Promotions (Percent) (Percent)
1966 5 5 0
(100%) (0%)
1967 2 2 0
(100%) (0%)
1968 15 13 2
(86.7%) (13.3%)
1969 4 2 2
(50%) (50%)
1970 2 2 0
(100%) (0%)
1971 1 1 0
(100%) (0%)
1972 2 1 1
(50%) (50%)
1973 6 5 1
(83.3%) (16.7%)
1974 4 4 0
(100%) (0%)
1975 0 0 0
1976 1 0 1
(0%) (100%)
1977 9 4 5
(44.4%) (55.6%)
----------------------------------------------------------------
Total
All Years 51 39 12
(1966-77) (76.5%) (23.5%)
----------------------------------------------------------------
Total 29 19 10
(1969-77) (65.5%) (34.5%)
----------------------------------------------------------------
Again, any inference of disparate impact has been rebutted. From 1969 to 1977, black bargaining unit employees obtained 34.5% of the awarded promotions, and this figure compares favorably with the aforementioned weighted black average of 36.9%.
Plaintiffs do not appear to object to the court's use of such a comparison in general. They contend, however, that any promotions made during 1977 ought to be discounted since "[a]ctions taken in the face of litigation are equivocal in purpose, motive and permanence." James v. Stockham Valves & Fittings Co., 559 F.2d 310, 325, n. 18 (5th Cir. 1977). But James does not hold that all action taken after a lawsuit is filed must be disregarded. Instead, it indicates that the pattern of improvement in promotions should be judged in light of the "equivocal" nature of the recent promotions. As stated in Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1204 (5th Cir. 1978), "The [District] court's finding that there are [12] additional blacks in the supervisor positions, while relevant to the ultimate question of whether blacks had been discriminated against by the use of subjective selection criteria, is not determinative of the issue." In Pettway, the court cited Swint v. Pullman-Standard, 539 F.2d 77 (5th Cir. 1976), which considered the fact that between 1971, when the lawsuit was filed.[24] and 1974. the date of trial, eight of twenty foremen appointed were black. In Swint, the Fifth Circuit stated, "This figure is clearly indicative of the lack of discrimination in promotion. It is appropriate to consider it as counterbalancing evidence of the statistics indicative of discrimination which were presented by the plaintiffs." *45 539 F.2d at 104. Although it objected to other reasons advanced by the lower court for its finding in favor of the defendant, the appellate court found, based in part on the "dramatic improvement in black promotions to salaried supervisor," that the evidence did not make out a prima facie case. The court therefore remanded the action to the district court "to balance recent [post-lawsuit] promotion statistics and black turn-downs against the overall statistics presented by the plaintiffs." Id. at 105. Thus, it is clear that the 1977 figures are entitled to consideration in this action.[25] As noted earlier, the court concludes that Anaconda has rebutted any inference of disparate impact in relation to its promotional procedures for supervisory and salaried jobs.[26]
Plaintiffs also complained that Anaconda employs discriminatory tests and minimum educational requirements which have excluded a disproportionately high percentage of the company's black employees from supervisory or salaried positions. The evidence supports neither proposition. A copy of a test entitled "How Supervise?" appears in one personnel file and a Martin "Skil-Chart" in another. Both of these tests occurred before 1969, and furthermore, there is no indication that they were given in more than a few instances. In any event, both individuals who took these tests are white.
With regard to their contention that educational requirements exist for foreman positions, plaintiffs rely upon examples of personnel requisition forms which contain the words "High School", "College", and "Degree Desired" with black lines provided after each so that the requisitioning manager can specify what minimum educational level is required. They have offered only one completed form which supports their position at all, however, and that is the personnel requisition for the Maintenance Foreman position filled in 1977. Initially, the court notes that although the box for high school is checked, the words "or equiv[alent]" are written in after it, thus indicating that a high school diploma is not a requirement. Moreover, the individual who ultimately filled that position was Robert Raines, a black employee. Plaintiffs have come forward with no other evidence that such requirements were used, and the testimony indicates that while management wanted some evidence of basic technical skills, there was no minimum level of general education for supervisory jobs. This is borne out by the number of employees who currently hold such positions who lack high school diplomas. Finally, even had plaintiffs established that tests or educational standards were used as a matter of course, *46 they have failed to prove any disparate impact from such practices, as required by Albemarle Paper, supra.
Individual Claims
In a non-class claim of employment discrimination under Title VII, the plaintiff carries the initial burden of proving a prima facie case of discrimination. The elements of a prima facie case, delineated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), are (1) that the complainant must belong to a protected minority; (2) that he must apply and be qualified for a job for which the employer is seeking applications; (3) that he must be rejected for the job; and (4) that the employer must then continue to seek applicants with the complainant's qualifications. When a plaintiff meets these criteria, the burden shifts to the defendant to show, by a preponderance of the evidence, that it had legitimate, nondiscriminatory reasons for its decision. If the defendant can meet this burden, the plaintiff must then prove, by a preponderance of the evidence, that the articulated reason is a pretext for discrimination. The court will now examine the claims raised by the individual plaintiffs in accordance with this test. While statistical evidence is relevant in judging individual allegations of discrimination, Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), the court has already concluded that the statistics presented by the Commission and the individual plaintiffs are without probative value. They therefore will not assist plaintiffs here.
Henry Harris
Plaintiff Harris was hired by Anaconda's predecessor company on August 18, 1955 and was assigned to the Buffing Department. He is presently employed as a Fabrication Welder Layout Leadman, the top position in the fabrication division and one of the best-paid job classifications in the plant. Harris contends that he was frustrated and held back in his efforts to achieve promotion and that his overall job aspirations were toward tooling or foreman positions. In this regard, he made several types of allegations. First, he charged that certain tryouts he participated in were unfair. Harris complains about a tryout for a job in the storeroom under a foreman named Haught, which he claimed lasted only fifteen minutes. However, on cross-examination, he admitted that he could not remember the date of this tryout and that he did not know whether a white or black employee got the job. Foreman Haught, although not remembering this specific tryout, mentioned three black employees whom he passed on tryouts into this position starting in the early 1960s. This testimony was supported by company records. Thus, Harris has failed to make out a claim concerning this tryout.
The next tryout complained of concerned a job in the mill under a foreman named Woodward. Harris stated that his tryout only lasted about fifteen minutes and that a white employee named Neese got the job after having been temporarily assigned to the position previously. He stated that this tryout occurred sometime after May, 1965. By his own testimony, this tryout was clearly pre-1969, may have been pre-Act, and thus cannot support a finding of liability.
Concerning bids into the Maintenance and Tooling Division, Harris testified that he generally did not receive tryouts on these bids because of the divisional preference. Since the court has determined that the divisional seniority system is protected under section 703(h), the court finds nothing improper in this conduct. In one instance, a bid on a Machinist A job, Harris took a written test along with twelve to fifteen employees, white and black. Two white employees, James Adcock and William Moore, obtained the jobs after passing the written tests and a three-day tryout. Although Harris did not state a date for this occurrence, Adcock testified that it was in 1967, and this date is supported by company records. The statute of limitations therefore bars consideration of this claim as well.
Harris next complains of a tryout for the press brake job which was conducted by *47 supervisor Dixon and lasted only four hours. He testified that the supervisor said his work was not consistent enough, although it passed inspection. A white employee named Dingler got the job. Harris placed the date of this occurrence as January of 1969, but did not bring it within the relevant time period.
Mr. Harris next cited an April, 1972 layout tryout at the Georgia District (Atlanta Region) warehouse under a white foreman named Harvey Crowe. A white employee named Ray Croy, Jr. got the job, after Harris failed the tryout for failing to put the correct "hand" (left or right) on the doors he laid out. Harris testified that although he did not pass this tryout, he was upgraded to layout three weeks later in the Custom Department. He contended that Anaconda was seeking to keep the Georgia District all white. In rebuttal, Anaconda produced the testimony of the foreman who gave the tryout and a written report he made at the time of the tryout. Crowe testified that the Georgia District had black employees in 1972 and was located next to Fabrication where Harris worked. Crowe's testimony and report demonstrated that in a variety of tasks assigned, Harris was consistently extremely slow in his work, and on several occasions inaccurate. In addition to the lack of knowledge of the "handedness" of the doors, Harris did not understand the operation of the door, the relationship of the door to the frame, or how to read the sales order or operate the layout table. This evidence effectively rebutted any inference of discrimination on this tryout by demonstrating that Harris' failure was based on lack of qualifications at that time.
The second area raised by Harris was that jobs were racially segregated and that he was not allowed to bid into certain positions, such as the Maintenance and Tooling division. He first charged that blacks were not allowed to bid out of the buffing room, but Mr. Harris bid out of the Buffing Department on February 22, 1965, prior to the passage of the Civil Rights Act. His other complaint was that when the Interior Door Department was closed in 1967, he was not allowed to use his seniority to "bump" into the Maintenance Division. However, this complaint was pursued to arbitration and found wanting as far as the collective bargaining agreement was concerned. Moreover, charges were filed with the EEOC in this regard and were dismissed by the Commission, which found that "charging parties fared no worse than some of their similarly placed white counterparts, and better than others." Harris testified that James Adcock, then union president and chief shop steward, told him he had no right to bid into maintenance. Adcock denied making this statement. This conflict in the testimony is immaterial, since this event took place in 1967.
In summary, the court finds that Harris failed to make out a prima facie case as to any violations of Title VII after January 18, 1969 and that Anaconda demonstrated legitimate, nondiscriminatory reasons for its actions and plaintiff failed to prove that they were pretextual. His work history was that after working in a low-skilled position prior to the passage of the Civil Rights Act, Harris moved into more skilled jobs and moved rapidly forward after obtaining company-provided training in 1968 and 1969. He rapidly progressed in the Custom Division so that he is now in the top position in this section. Although Harris testified that he desired to become a tooling worker or a foreman, he made only one application for a tooling position in 1967. Even if he had met his burden of proving he was qualified for the position, the event was prior to the relevant time period. Further, the absence of more precise testimony about Harris' foreman aspirations (it is not clear if he ever expressed this desire to the company), in view of the court's conclusion that the procedures employed in selecting supervisory employees are not invalid or racially discriminatory, must bar any relief on that score. As to all other alleged violations, the court concludes that Harris has not supported his claims of unlawful activities as to himself under either Title VII or 42 U.S.C. § 1981.
Johnnie C. Hillman
Plaintiff Hillman is also a Fabrication Welder Layout Leader, the top hourly *48 grade in Custom Fabrication. Like Harris, Hillman complained of unfair tryouts. First, he contended that when he tried out for a Machine Operator A position in the mill under foreman Woodward, the material he milled on his tryout was lost. A white employee named Neese obtained the job, and Hillman later replaced Neese temporarily when Neese was sick.[27] Hillman also complained that James Adcock, chief shop steward and union president, refused to agree to a second tryout because it would be unfair to the other employees. Mr. Adcock denies this incident entirely. This conflict is immaterial because Hillman placed the date of this occurrence as 1966 and because the test results of other black employees who tried out were not lost.
Concerning a tryout for Press Brake Operator, Hillman testified that foreman Abercrombie initially rejected him on the tryout because his work was one-sixteenth of an inch off. After a higher supervisor named Bellew spoke to Abercrombie, Abercrombie offered Hillman the job, warning him that he would be fired if he scrapped any material. He therefore turned down the job. Abercrombie did not remember the details of this incident, but testified that he would never reject anyone for so small an error. Hillman conceded on cross-examination that he was scrapped various pieces of material on different jobs without being fired or even warned. He also testified that sometime thereafter in August, 1969 he was promoted to a press brake job in a different division under a different foreman. Considering all this, plus the fact that Hillman did not establish a date for the first tryout[28] and voluntarily rejected the job, the court finds that he has not established an unlawful employment practice in this regard.
Hillman's final allegation of an unfair tryout concerns his unsuccessful tryout in May, 1978 for the position of Millwright in the maintenance area. It should be noted that the Millwright position is the highest rated job classification in the maintenance area, apart from Master Electrician. Under the job description in the collective bargaining agreement and the testimony, a Millwright must be able to diagnose problems with and make repairs on all the machinery in the plant. The union contract provides that a Millwright "must be fully qualified in two or more of the following areas: Hydraulics, refrigeration, pneumatics, automotive, welding." Millwright is not an entry level position. On the contrary, it is the top of a progression from a Maintenance Repairman B to Maintenance Repairman A to Millwright. The testimony established that it took several years as a Maintenance Repairman A to acquire the experience and knowledge necessary to perform the millwright functions.
Under the straight plantwide seniority provisions in the current collective bargaining agreement, Hillman bid on and received a tryout for the Millwright position from May 10 through May 12, 1978, shortly before the trial of this case. The tryout was administered by foreman John Snelling, who completed a "qualification (disqualification) record" on plaintiff's performance. The testimony of Hillman and Snelling was in conflict on most of the aspects of the tryout. One of the tasks was to chase threads, using a lathe, and the piece of work performed by Hillman was admitted as a physical exhibit. Testimony established that this work was deficient in that the threads were not sufficiently defined. Hillman does not contest the insufficiency of the work, but blames a flaw in the machine. However, Snelling's testimony established that the machine was checked and had no problem. Thus, Hillman failed to establish unfairness in this area. Mr. Hillman was assigned to repair several pieces of machinery which happened to be *49 broken during his tryout. Of these, he was only successful in making a repair to a broken rod in the punch press. He was unsuccessful at all his other repairs: a sludge pump, a tow motor, and a clip saw machine. In all these instances, after Hillman was unable to accomplish the repairs, Snelling found it necessary to send over a qualified Millwright so that the machine could be put back into service within a reasonable time. Hillman was also unsuccessful in welding stainless steel. As in the case of the thread chasing, Hillman does not contest his inability to perform the task, but alleges that other Millwrights cannot weld with stainless steel. Testimony presented by the defendant rebutted this allegation. Finally, Mr. Hillman was generally unsuccessful in answering a series of questions designed to test his knowledge of starting and operating normal maintenance equipment. There is no conflict as to the content of the questions and answers. The conflict arises as to whether Hillman's answers were sufficient. From the testimony of both witnesses, the court finds that he failed to provide full and correct answers to questions requesting information about how to perform certain Millwright tasks.
In sum, Hillman feels that he has shown his ability to perform two or more of the duties required of Millwrights. The contract requires Millwrights to be "fully qualified" in two or more of the specified areas, however. While the court is aware that the tasks to be performed on a Millwright tryout vary depending on the company's needs at the time and that therefore Hillman's performance was not judged against uniform and objective standards, it nevertheless concludes from the evidence that Hillman was not qualified for the job.
This Millwright position was later filled by a white employee named Smith, who had previously been a Millwright. Hillman failed to prove that he was equally qualified to Smith, particularly in light of Snelling's testimony comparing the two tryouts, the evidence of Smith's far superior lathe work, and the qualification/disqualification report of Mr. Smith's tryout.
Hillman, like Harris, also charged that temporary assignments in the custom division after the abolition of the interior door department were distributed discriminatorily. He did not testify as to any specific unfair assignments, however. The court has previously found that the assignments were made on the basis of experience and qualification of the various employees involved and in accordance with the collective bargaining agreement, and it sees no reason to alter that conclusion.
Finally, Hillman complains of discrimination with a promotion he received and then lost, in part, in 1972. In July, 1971, Hillman became a Senior Fabricator in the Window Department. After additional responsibilities were added to his job, although not to the position as a whole, he advised the company of his situation and was advanced to the position of Fabrication Welder Layout Leader in 1972. Two white Layout Welders named Waites and Burnett, both of whom had more seniority than Hillman, objected and threatened to file a grievance because the position filled by Hillman had not been posted for bid and filled in accordance with the collective bargaining agreement. After consultation between the company and the union, Anaconda created a new classification, Senior Fabricator Leadman, for Hillman's benefit. The pay rate for this position was one cent less than that for the two senior white employees; Hillman was thus allowed the maximum possible wage without violating the seniority provisions of the contract. Eventually, in 1977, two Fabrication Welder Layout Leader positions were posted for bid, and Harris and Hillman won the positions over one of the two senior whites, who did not pass his tryout. The court finds it hard to see how this set of events proves racial discrimination against Mr. Hillman. Any "discrimination" by Anaconda was in favor of Hillman. No one attained the job in 1972, and Mr. Hillman was given a 15-cent per hour increase as a Senior Fabricator Leadman. When the jobs were later posted for bid, Harris and Hillman got them. No discrimination is shown.
*50 In sum, Mr. Hillman's testimony, when considered with relevant rebuttal evidence, does not establish any denial of promotional opportunities as to him after January 18, 1969.
Unions
The Local Union is the exclusive representative and agent of all the company's production and maintenance employees for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment and other conditions of employment. As such, it can negotiate and enter into binding collective bargaining agreements. As noted earlier, since the Local Union received its charter in 1957, black members have served on each Local Union collective bargaining committee for each contract dating from the initial contract in 1957 to the last contract negotiated in 1977. Two black persons, "Shorty" Slaton and Howard Clifton, were active in the organization of the plant in 1956, and black members and other minority members have held union offices such as Divisional Shop Steward, Assistant Chief Shop Steward, and Chief Shop Steward since at least 1968. Blacks and other minorities have served as members of the Local Union Executive Committee since 1965. In 1970, 1972, and 1974, blacks held a three-to-two majority on this committee, while in May, 1976, blacks obtained a four-to-one majority which continues to date. Since May, 1976, the two top officers of the Local Unionthe President and the Business Agenthave been black.
The Local Union has no legal duty or responsibility under the collective bargaining agreement or otherwise to set up or administer the 24-hour tryouts which are supervised by the employer. Unless a post-tryout grievance is filed by an employee who was turned down on his tryout, the Local Union does not become involved in this process at all. The testimony revealed that grievances were, except in isolated instances, processed without regard to the race of the complaining employee. For example, the Local Union processed successful grievances on behalf of at least three members of the classLawrence Kent, J. W. Walker, and Eugene Jacksonbetween 1970 and 1976, while Benny Toler, who is white, was Business Agent.
Prior to 1972, an employee seeking to have his grievance taken to arbitration was required to present his grievance to the general membership at a union meeting. The membership would then determine by a majority vote whether or not the grievance was meritorious and should be taken to arbitration. In 1967, the Local Union voted to arbitrate Anaconda's decision to abolish the Interior Door Department. This grievance, which was ultimately unsuccessful, involved both black and white employees. After 1972, upon request of the grievant, the Executive Committee of the Local Union would determine whether a member's grievance should be taken to arbitration. From 1970 to May 1976, under a white President and a white Business Agent, five grievances were taken to arbitration, and all five were on behalf of black grievants. Since June 1976, ten grievances have been taken to arbitration, approximately half filed by black employees. Neither of the individual plaintiffs ever appeared at any general membership meeting or Executive Committee meeting to solicit the Local Union's support in the processing of their grievances to arbitration.
The International Union was originally formed by the association of various local unions of workers in the iron worker industry. Its locals have approximately 500 contracts in force at this time, and it has a staff of twelve general organizers or staff officers, fifty district representatives and a few special representatives. The International provides assistance to local unions during the negotiation of contracts and the handling of grievances which go to arbitration. Specifically, it supplies local unions with a model contract and, when requested, general organizers will assist in the collective bargaining.
The model contract utilized by the International provides for a straight plantwide seniority system. Since the 1940s, it has been the International's policy to have local *51 unions seek plantwide seniority. In fact, sometime before the Supreme Court's decision in Teamsters was handed down, the International sent its staff officers a directive requiring them to press for the removal of systems which were other than straight plantwide seniority systems. Further, while the International does approve "as to form" contracts negotiated by the locals, the International cannot require certain language or provisions to be removed from or inserted into a contract as negotiated because the local is the certified collective bargaining agent for employees.
It has been the custom of the Local Union to request assistance from the International Union on every collective bargaining agreement it has negotiated with Anaconda. The Local Union has always prepared its own proposal for the negotiations, however. Prior to drafting the final proposal to be presented to Anaconda, the existing contract is read at a union meeting and discussed section by section so that the members have an opportunity to suggest changes. In the initial contract negotiations in 1957, the Local Union followed the International's general policy guidelines and attempted to obtain straight plantwide seniority at the Amarlite facility. In the face of the company's economic reasons for a divisional seniority systemwhich reasons were consistent with the arguments against plantwide seniority advanced by employers throughout the countrythe Local accepted the divisional system. In 1965, portions of the seniority system came under fire during the contract negotiations. At that time, the employees engaged in a strike for six weeks over that and other issues. The strike was ultimately settled when the Local Union and Anaconda agreed to a contract which, among other things, provided for limited use of plantwide seniority. During the contract negotiations for 1968, 1971, and 1974, additional changes were made in the bargaining agreement, but plantwide seniority was not a major issue. In 1977, the parties agreed to complete plantwide seniority.
The unions' liability in this action must be based upon either the existence of contractual provisions in the collective bargaining agreements which have a racially adverse impact or some form of active discrimination.[29] Since the court has already concluded that the divisional preference was a protected part of the seniority system under section 703(h) and that the seniority system was bona fide, there can be no liability for allegedly discriminatory provisions contained in the contracts. Even if the court had found that the seniority system was not bona fide, however, it concludes that the unions' roles in negotiating or ratifying collective bargaining agreements containing the improper provisions would not justify a finding of liability in this case. See generally James v. Stockham Valves & Fittings Co., supra. From its inception in 1957, the Local Union has been integrated and has had a substantial black membership. Black members have participated on all negotiating committees for collective bargaining agreements and have held leadership positions with the union. In addition, it appears that both the Local Union and the International Union attempted at various times to achieve plantwide seniority. That the workers struck in 1965 indicates that the unions pursued their positions forcefully. The court has seen no evidence which even suggests that either union sought or acquiesced to divisional seniority for racially discriminatory reasons. In fact, when the unions polled the employees on whether they wanted to alter the divisional system, only the workers in the Maintenance and Tooling Division responded, and five of six black employees in that section *52 registered their approval of the divisional preference system.
Nor may plaintiffs prevail on their claims that the unions followed a policy or practice of discriminating against black employees in the processing of grievances or in taking grievances to arbitration. On the contrary, apart from "isolated or accidental or sporadic discriminatory acts," Teamsters, supra, at 336, 97 S.Ct. at 1855, most of which occurred long before 1969, the evidence indicates that the unions have been as diligent in processing the grievances of black employees as they have those of white workers. The court therefore concludes that plaintiffs have proved no violations by the unions of Title VII, 42 U.S.C. § 1981, or 29 U.S.C. §§ 151, et seq., which would warrant a finding of liability to the class or to the individual plaintiffs in this action.
Consideration of the evidence has led this court to conclude that no systematic, classwide pattern of discrimination has been shown under any theory. The number of relevant individual instances of discrimination was not sufficient to show a regular pattern, and the relevant statistics rebutted any inference of disparate impact from the various employment practices attacked. Neither of the named plaintiffs has carried his burden of proving discrimination as to himself. Therefore, a judgment must be rendered in favor of the defendants, with each party to bear its own costs.[30]
IT IS SO ORDERED.
APPENDIX 1
* This table was initially prepared and submitted by Anaconda. The court has verified the information contained herein and therefore ADOPTS the table as its own.
Bargaining Unit Employees by Seniority Divisions
March 1, 1965[1]
-----------------------------------------------------------------------------------------------------
|Division | Standard | | | | Shipping & | Melt-Cast- | Quality | Panel & |
|Name | Parts | Custom | Finishing | Maintenance | Receiving | Extrusion | Control | Window |
|and |----------|--------|-----------|-------------|------------|------------|---------|---------|
|Number | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 |
|=========|==========|========|===========|=============|============|============|=========|=========|
| Total # | 62 | 60 | 116 | 26 | 9 | 41 | 26 | 2 |
|---------|----------|--------|-----------|-------------|------------|------------|---------|---------|
| Unknown | 7 | 3 | 29 | 0 | 2 | 1 | 3 | 0 |
|---------|----------|--------|-----------|-------------|------------|------------|---------|---------|
| Black | 3 | 8 | 50 | 0 | 1 | 9 | 6 | 2 |
|---------|----------|--------|-----------|-------------|------------|------------|---------|---------|
| White | 52 | 49 | 37 | 26 | 6 | 31 | 17 | 0 |
|---------|----------|--------|-----------|-------------|------------|------------|---------|---------|
| % Black | 5.5% | 14.0% | 57.5% | 0% | 14.3% | 22.5% | 26.1% | 100% |
-----------------------------------------------------------------------------------------------------
December 1, 1967[2]
---------------------------------------------------------------------------------------------------------
|Division | Standard | | | | Material | Melt-Cast-Extrusion | Quality | |
|Name | Parts | Custom | Finishing | Maintenance | Handling | | Control | |
|and |----------|---------|------------|-------------|-------------|------------|--------|---------|
|Number | 1 | 2 | 3 | 4 | 5 | 6 | 7 | |
|===========|==========|=========|============|=============|=============|============|========|=========|
| Total # | 66 | 83 | 90 | 41 | 37 | 36 | 25 | |
|-----------|----------|---------|------------|-------------|-------------|------------|--------|---------|
| Unknown | 0 | 0 | 0 | 0 | 0 | 0 | 0 | |
|-----------|----------|---------|------------|-------------|-------------|------------|--------|---------|
| Black | 8 | 21 | 47 | 7 | 8 | 10 | 7 | |
|-----------|----------|---------|------------|-------------|-------------|------------|--------|---------|
| White | 58 | 62 | 43 | 34 | 29 | 26 | 18 | |
|-----------|----------|---------|------------|-------------|-------------|------------|--------|---------|
| % Black | 12.1% | 25.3% | 52.2% | 17.0% | 21.6% | 27.8% | 28.0% | |
---------------------------------------------------------------------------------------------------------
*53
June 1, 1968[3]
---------------------------------------------------------------------------------------------------------
| Division | Standard | | | | Material | Melt-Cast-Extrusion | Quality |
| Name | Parts | Custom | Finishing | Maintenance | Handling | | Control |
| and |----------|---------|------------|-------------|-------------|---------------------|---------|
| Number | 1 | 2 | 3 | 4 | 5 | 6 | 7 | |
|===========|==========|=========|============|=============|=============|============|========|=========|
| Total # | 47 | 79 | 81 | 43 | 30 | 33 | 20 | |
|-----------|----------|---------|------------|-------------|-------------|------------|--------|---------|
| Unknown | 5 | 5 | 25 | 5 | 4 | 3 | 1 | |
|-----------|----------|---------|------------|-------------|-------------|------------|--------|---------|
| Black | 5 | 22 | 42 | 6 | 10 | 6 | 8 | |
|-----------|----------|---------|------------|-------------|-------------|------------|--------|---------|
| White | 37 | 52 | 14 | 32 | 16 | 24 | 11 | |
|-----------|----------|---------|------------|-------------|-------------|------------|--------|---------|
| % Black | 11.9% | 29.7% | 75.0% | 15.8% | 38.5% | 20.0% | 42.1% | |
-----------------------------------------------------------------------------------------------------------
August 30, 1968[4]
---------------------------------------------------------------------------------------------------------
| Division | Maintenance | | | Material | | | | |
| Name | and Tooling | Mill | Fabrication | Handling | Inspection | Labor | | |
| and |-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Number | 1 | 2 | 3 | 4 | 5 | 6 | | |
|===========|=============|========|=============|============|=============|=========|=========|=========|
| Total # | 34 | 119 | 118 | 46 | 20 | 17 | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Unknown | 0 | 0 | 0 | 0 | 0 | 0 | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Black | 0 | 54 | 26 | 20 | 6 | 11 | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| White | 34 | 65 | 92 | 26 | 14 | 6 | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| % Black | 0% | 45.4% | 22.0% | 43.5% | 30.0% | 64.7% | | |
-----------------------------------------------------------------------------------------------------------
September 1, 1970[5]
---------------------------------------------------------------------------------------------------------
| Division | Maintenance | | | Material | | | | |
| Name | and Tooling | Mill | Fabrication | Handling | Inspection | Labor | | |
| and |-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Number | 1 | 2 | 3 | 4 | 5 | 6 | | |
|===========|=============|========|=============|============|=============|=========|=========|=========|
| Total # | 35 | 101 | 87 | 49 | 18 | 15 | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Unknown | 0 | 0 | 0 | 0 | 0 | 0 | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Black | 0 | 60 | 26 | 26 | 6 | 7 | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| White | 35 | 41 | 61 | 23 | 12 | 8 | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| % Black | 0% | 59.4% | 29.9% | 53.1% | 33.3% | 46.7% | | |
---------------------------------------------------------------------------------------------------------
*54
September 10, 1974[6]
---------------------------------------------------------------------------------------------------------
| Division | Maintenance | | | Material | | | | |
| Name | and Tooling | Mill | Fabrication | Handling | Inspection | | | |
| and |-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Number | 1 | 2 | 3 | 4 | 5 | | | |
|===========|=============|========|=============|============|=============|=========|=========|=========|
| Total # | 41 | 126 | 117 | 73 | 17 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Unknown | 0 | 0 | 1 | 0 | 0 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Black | 6 | 56 | 39 | 17 | 8 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| White | 35 | 70 | 77 | 56 | 9 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| % Black | 14.6% | 44.4% | 33.6% | 23.3% | 47.1% | | | |
---------------------------------------------------------------------------------------------------------
February 27, 1975[7]
---------------------------------------------------------------------------------------------------------
| Division | Maintenance | | | Material | | | | |
| Name | and Tooling | Mill | Fabrication | Handling | Inspection | | | |
| and |-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Number | 1 | 2 | 3 | 4 | 5 | | | |
|===========|=============|========|=============|============|=============|=========|=========|=========|
| Total # | 40 | 81 | 110 | 54 | 14 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Unknown | 0 | 0 | 0 | 0 | 0 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Black | 6 | 48 | 39 | 15 | 5 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| White | 34 | 33 | 71 | 39 | 9 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| % Black | 15.0% | 59.3% | 35.5% | 27.8% | 35.7% | | | |
---------------------------------------------------------------------------------------------------------
March 28, 1977[8]
---------------------------------------------------------------------------------------------------------
| Division | Maintenance | | | Material | | | | |
| Name | and Tooling | Mill | Fabrication | Handling | Inspection | | | |
| and |-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Number | 1 | 2 | 3 | 4 | 5 | | | |
|===========|=============|========|=============|============|=============|=========|=========|=========|
| Total # | 39 | 80 | 80 | 56 | 8 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Unknown | 0 | 0 | 0 | 0 | 0 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Black | 5 | 48 | 31 | 13 | 2 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| White | 34 | 32 | 49 | 43 | 6 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| % Black | 12.8% | 60.0% | 38.7% | 23.2% | 25.0% | | | |
---------------------------------------------------------------------------------------------------------
August 30, 1977[9]
---------------------------------------------------------------------------------------------------------
| Division | Maintenance | | | Material | | | | |
| Name | and Tooling | Mill | Fabrication | Handling | Inspection | | | |
| and |-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Number | 1 | 2 | 3 | 4 | 5 | | | |
|===========|=============|========|=============|============|=============|=========|=========|=========|
| Total # | 37 | 119 | 111 | 65 | 10 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Unknown | 0 | 0 | 0 | 0 | 0 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Black | 2 | 64 | 41 | 28 | 4 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| White | 35 | 55 | 70 | 37 | 6 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| % Black | 5.4% | 53.8% | 36.9% | 43.1% | 40.0% | | | |
-----------------------------------------------------------------------------------------------------------
*55
June 23, 1978[10]
---------------------------------------------------------------------------------------------------------
| Division | Maintenance | | | Material | | | | |
| Name | and Tooling | Mill | Fabrication | Handling | Inspection | | | |
| and |-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Number | 1 | 2 | 3 | 4 | 5 | | | |
|===========|=============|========|=============|============|=============|=========|=========|=========|
| Total # | 41 | 128 | 112 | 52 | 11 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Unknown | 0 | 31 | 2 | 12 | 0 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| Black | 5 | 51 | 44 | 16 | 5 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| White | 36 | 46 | 66 | 24 | 6 | | | |
|-----------|-------------|--------|-------------|------------|-------------|---------|---------|---------|
| % Black | 12.2% | 52.6% | 40.0% | 40.0% | 45.5% | | | |
---------------------------------------------------------------------------------------------------------
NOTES
[1] The word "plaintiffs" will be used to refer to the individual plaintiffs, the Commission, and the class and does not refer solely to the individual plaintiffs.
[2] Although Teamsters was brought under section 707 of Title VII, the court therein noted that the burden of proof was the same as that in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), a class action brought under section 706 of the Act in which "a broad-based policy of employment discrimination" had been alleged. 431 U.S. at 359, 97 S.Ct. at 1866. The Fifth Circuit implicitly recognized this principle in United States v. United States Steel Corp., 520 F.2d 1043, 1053 (5th Cir. 1975), which was a consolidation of private class actions under section 707. The court made no distinction in the applicable burden of proof.
[3] Plaintiffs have consistently stated that this is not a hiring case, and the statistics set forth in Appendix 1 to this decision demonstrate the reason why. Those statistics are drawn from seniority rosters which were admitted into evidence, and they reveal that from at least March, 1965, Anaconda has employed substantial numbers of black persons. Nor does this case involve initial job assignments, a variant of hiring, per se. Plaintiffs have made no showing of discriminatory assignments of this nature after the effective date of Title VII or within the relevant time period of this action. On the contrary, the statistics set out in the appendix demonstrate that within the relevant time frame the seniority divisions at Anaconda have been racially mixed, except for the Maintenance and Tooling Division in certain years, and thus that the initial assignments were not discriminatory. To the extent that plaintiffs suggest that any absence or small number of black employees in the Maintenance and Tooling Division after 1968 resulted from discriminatory hiring or initial job assignments after July 2, 1965, they cannot prevail. The bid sheets and testimony reveal that all Maintenance and Tooling job openings from 1968 on, with one exception, were filled solely through the bidding process by persons already employed by the company. (As noted earlier, bid sheets prior to 1968 are no longer in existence.) From 1965 until 1968, some black persons were employed in that division, and no evidence was introduced by any party as to whether they were hired or bid in. Plaintiffs' attack on discriminatory hiring or initial assignment policies prior to the relevant time period will, of course, be manifested in their attack on the seniority system.
[4] These job classifications were Machinist A and B, Maintenance Electrician, Die Corrector A, Maintenance Repairman A, Driver, Press Operator, Inspector Class A, Setup Man, Die Corrector B, Casting Machine Operator, Machine Operator A, Custom Fabricator A, Maintenance Repairman B, Tool Crib Attendant. The top eleven of these classifications, and one other, contained four or fewer employees in each general position; at least eight of the positions were in the Maintenance and Tooling Division.
[5] These were: Machinist AA, Machinist A, Maintenance Repairman A, Die Corrector A, Press Operator, Truck Driver, Tool Crib Attendant, Hardcoat Crane Operator.
[6] This chart includes the 100 or so workers employed by Amarlite Anaconda who are not involved in this action.
[7] Pursuant to EEO-1 directions, this category includes in addition to the jobs contained in the Maintenance and Tooling Division, certain high-level fabrication job classifications.
[8] None of these classifications had more than five employees, and two had only two.
[9] No seniority roster for 1969 was introduced. The seniority roster dated August 30, 1968 shows thirty-four employees in the Maintenance and Tooling Division; the roster for September 1, 1970 includes thirty-five employees.
[10] The same rule applies under 42 U.S.C. § 1981. In Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978), the court stated: "The same protections should apply whether the seniority system is challenged under Title VII or section 1981." Id. at 1191-92, note 37.
[11] Prior to 1961, the language "after a break-in period of twenty-four (24) clock hours" was not included in this portion of the contracts.
[12] This is readily apparent from Appendix 1 to this Order, which summarizes seniority rosters in evidence. For example, as of March 1, 1965, 192 whites and 79 blacks were employed outside the Maintenance Division. That is, over twice as many whites as blacks were affected on bids into Maintenance in 1965.
[13] The most senior bidder for these purposes is either the individual who exercises his divisional preference and has more plantwide seniority than others using the preference or the employee who has no divisional preference to use and obtains the job solely on the basis of his plantwide seniority.
[14] This does not include six instances where openings were filled but bid sheets were not available.
[15] Having concluded that Anaconda has rebutted plaintiffs' statistical proof, the company's assertions that the statistics were improper under Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), because they failed to take into account the special skills required for jobs in the Maintenance Division need not be considered. While the court agrees that special skills are necessary for the upper-level maintenance and tooling jobs, in view of the presence of training programs for such jobs, a comparison to the percentage of black workers in the Atlanta area SMSA who already possess these upper-level skills would not appear to be meaningful.
[16] Plaintiffs' evidence focused upon the absence of standards for maintenance and tooling jobs, and defendants responded to that issue and also presented evidence as to standards in relatively simple production jobs. There thus appears to be a gap in the proof, and the court is frankly uncertain into which category tryouts for the more complicated production jobs fall. This problem is probably surmountable, however, since plaintiffs do not appear to complain of discrimination in the fabrication jobs. In fact, the named plaintiffs hold jobs in the highest job classification in this area.
[17] Gardner has now been promoted to area foreman, and therefore apparently no longer conducts tryouts himself.
[18] While the court believes that the tryout system is job-related and has not systematically been administered in a racially discriminatory manner, it feels compelled to note that because of the lack of objective standards, primarily in the Maintenance tryouts, this system could very easily be the vehicle for discrimination. Anaconda would do well to attend to this problem.
[19] To the extent that these alleged instances of discrimination occurred before January 18, 1969 they would provide no basis for liability under the Act.
[20] Very few black employees testified about their attempts to obtain salaried or supervisory positions, and certain of what limited testimony there waseither because of the date or the witnesses' credibilitywas not probative. Even accepting all of the statements as true, however, plaintiffs would not have demonstrated a pattern or practice of purposeful discrimination such that it proved a prima facie case of class-wide disparate treatment.
[21] The company's records do not go back before this date.
[22] Anaconda has strenuously asserted that the positions in question require special qualifications not possessed by bargaining unit personnel as a whole and that therefore the court should not compare the company's promotional statistics to the percentage of blacks employed in the plant as a whole. Instead, it suggests that the proper comparison would be to availability statistics furnished by the Office of Federal Contract Compliance and the Georgia Department of Labor, based on United States Census data, which indicate the actual minority participation in the work force in the Atlanta SMSA in each of the EEO-1 job categories at various points in time. In certain situations, such a measure might be appropriate. In view of Anaconda's "promotion from within" policy, the somewhat nebulous "special skills" the company believes necessary for these upper level jobs and the fact that there are no precise jobs an employee must have before becoming a supervisor or salaried employee, the court declines to adopt such an approach.
[23] These figures include those previously discussed for supervisory positions alone.
[24] Swint v. Pullman Standard, 11 FEP 943 (N.D.Ala.1974), indicates that the civil action number of this case was 71-955-S, showing it was filed in 1971. Thus, the very "recent promotion statistics" which the Fifth Circuit directed the district court to consider were based on figures between 1971 and 1974, i. e., the time period between the filing of the action and the trial.
[25] The court would have been more inclined to view these later promotions with a questioning eye had the promotional pattern been somewhat different. For example, had Anaconda continued to promote white employees and failed to advance black workers until 1977, the court would have viewed the promotions with a large measure of skepticism. Here, although plaintiffs attempted to categorize these promotions as sudden and trial-oriented, a review of the evidence reveals that for purely supervisory positions, no promotionsblacks or whites were made in either 1975 of 1976, and that for all salaried positions, no promotions occurred in 1975 and only one employeeblackwas promoted in 1976. These figures are in keeping with the testimony at trial that Anaconda engaged in personnel cutbacks beginning sometime in 1975.
[26] In so holding, the court in no way means to place its stamp of approval on the procedures utilized by Anaconda. In fact, those procedures appear to include certain factors denounced in Rowe v. General Motors Corp., 457 F.2d 348, 358 (5th Cir. 1972). Specifically, the foreman's recommendation appears to carry substantial weight and foremen are given no written instructions pertaining to the qualifications necessary for promotion. Moreover, while job descriptions do exist, it is unclear whether they are ever used or referred to during the selection process. Anaconda may find itself in some difficulty if the percentage of black employees promoted to salaried or supervisory positions drops.
[27] That Hillman was temporarily assigned to a job classification which provided training or experience opportunities undercuts plaintiffs' contentions that "good" temporary assignments were never given to black workers.
[28] Plaintiffs' briefs indicate that the first tryout for Press Brake Operator occurred "several years" before August 1, 1969; the court has not been able to pinpoint the date from the testimony or documents.
[29] Neither union has any contractual responsibility under the collective bargaining agreement or legal responsibility or duty with respect to promotions or transfers of employees from jobs within the bargaining unit to salaried or supervisory non-bargaining unit jobs, see Rowe, supra, and liability cannot attach as a result of any of Anaconda's practices in this area.
[30] The court notes that the private plaintiffs have filed a motion to defer a ruling on this matter. Having read and considered this motion, the court hereby DENIES the same.
[1] Source: Exhibit J-48. The percentage of black employees is the number of black employees divided by the number of all known employees. E.g., "Standard Parts" has 3 of 55 known employees who were black, or 5.5%. "White" includes Hispanic employees.
[2] Source: Exhibit J-49.
[3] Source: Exhibit J-50. The black percentage equals the number of blacks divided by the number of blacks plus whites. See Note 1, supra.
[4] Source: Exhibit J-51.
[5] Source: Exhibit J-52.
[6] Source: Exhibit J-53. The black percentage in Fabrication equals blacks divided by blacks plus whites. J. Hunter is identified on the last page of J-53 as "white". This is erroneous; on all other exhibits he is identified as "black". See J-49 (Division 3, p. 5); J-50 (Division 3, p. 4); J-51 (Division 5, p. 1); J-54 (Division 5, p. 1); and J-55 (Division 2, p. 2). He was therefore counted as "black" in this table.
[7] Source: Exhibit J-54. There are two pages for Division 5, Inspection. The first of these duplicates Exhibit J-55, does not belong here, and was disregarded.
[8] Source: Exhibit J-55. Identification of Hicks and Turk (p. 8) from Exhibit J-54 (p. 1).
[9] Source: Exhibit J-56.
[10] Source: Exhibit A-94. Under the current collective bargaining agreement (J-9) effective November, 1977, there are no more seniority divisions. For purposes of comparison, employees were placed by job classifications into the seniority divisions in effect just prior to November, 1977. Only those employees in old Division I were racially identified on Exhibit A-94. To the extent possible, other employees were racially identified for this chart based on prior seniority rosters (J-48 through J-56). This explains the "unknown" employees, who were recent hires not listed and identified on prior seniority rosters. A copy of this modified Exhibit A-94 is attached, indicating the race and seniority division of employees included in the June 23, 1978 table, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263704/ | 479 F.Supp. 274 (1979)
Patti A. HEUSLE et al., Plaintiffs,
v.
The NATIONAL MUTUAL INSURANCE COMPANY et al., Defendants,
and
The United States of America, Involuntary Plaintiff or in the alternative, Defendant.
Civ. No. 78-1036.
United States District Court, M. D. Pennsylvania.
September 26, 1979.
As Amended December 28, 1979.
*275 Clifford A. Rieders, Williamsport, Pa., for plaintiffs.
Hager & Roesgen, Charles J. Tague, Jr., Williamsport, Pa., for defendant Travelers Insurance Co.
C. Edward S. Mitchell, Mitchell & Mitchell, Williamsport, Pa., for defendant National Mutual Insurance Co.
Harry A. Nagle, Lewisburg, Pa., for defendants Coast Guard and Dept. of HEW and USA.
OPINION
MUIR, District Judge.
Patti A. Heusle and her parents, George and Joyce Heusle, filed this action against the National Mutual Insurance Company, Celina Group, (National Mutual) and the Travelers Insurance Company (Travelers) seeking recovery of certain insurance benefits to which Patti A. Heusle claims entitlement under policies of insurance issued on behalf of her parents and on behalf of Yvonne DiStasi. The United States of America, the United States Coast Guard and the United States Department of Health, Education and Welfare have been joined as involuntary Plaintiffs or in the alternative as Defendants. On June 14, 1979, the parties filed an agreed statement of facts which was supplemented on August 2, 1979. On June 14, 1979, Plaintiffs, Travelers and National Mutual filed motions for summary judgment. On June 18, 1979, Travelers filed a motion to enlarge its time to file a brief in support of its motion accompanied by a brief. All parties having concurred in the motion, the Court will grant it. On June 29, 1979, Plaintiffs and National Mutual filed briefs in support of their motions. On July 6, 1979, Travelers filed a brief in support of its motion and an addendum thereto was filed by Travelers on July 10, 1979. On July 16, 1979, Plaintiffs and National Mutual filed briefs in opposition to each other's motions. On July 23, 1979, Plaintiffs filed a brief in opposition to Travelers' motion and a brief in reply to National Mutual's brief in opposition to Plaintiffs' motion. On July 24, 1979, National Mutual filed a brief in response to Travelers' brief in support of its motion for summary judgment. On July 30, 1979, Travelers filed a brief in reply to Plaintiffs' brief in opposition to Travelers' motion. For the reasons which follow, the Court will issue an order granting National Mutual's motion and granting in part and denying in part Plaintiffs' and Travelers' motions for summary judgment.
The facts underlying Plaintiffs' claim, unlike the law to be applied in this case, are uncomplicated. On October 23, 1976, Patti Heusle was injured in an automobile collision while a passenger in a car operated by Yvonne DiStasi. Travelers had issued an insurance policy with George Heusle as the named insured. Yvonne DiStasi was the named insured under a policy issued by National Mutual. On May 19, 1977, Patti *276 Heusle notified both insurance companies of her claim pursuant to Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.106 (Pennsylvania No-Fault Insurance Act). Both companies have refused to pay no-fault benefits to Patti Heusle. At the time of the accident, Patti Heusle was on active duty with the United States Coast Guard. She was on leave visiting her family prior to commencing her work at a Coast Guard facility in California. Because of this status, a substantial amount of Patti Heusle's medical expenses have been paid by the Government. In addition, she received disability compensation of $24,000 and has been receiving and will receive monthly disability payments of $961.00 from the government so long as she is disabled.
Plaintiffs' claim for no-fault benefits is based on three theories. First, they allege that Patti Heusle is entitled to benefits under the Travelers' policy as a relative of George Heusle, the named insured. Second, they allege that if Patti Heusle is not entitled to benefits under the Travelers' policy, then she is entitled to benefits under the National Mutual policy pursuant to § 204(a)(3) of the Pennsylvania No-Fault Insurance Act as a passenger in DiStasi's car. Third, Plaintiffs have asserted claims on behalf of the United States alleging the United States is an insured under both policies or is a third party beneficiary under the policies. Plaintiffs had asserted a claim on behalf of the United States based on the Federal Medical Care Recovery Act, 42 U.S.C. § 2651, et seq. On February 20, 1979, the Court issued an order dismissing that claim.
It is the Court's view that Patti Heusle was an insured under the Travelers policy. National Mutual, therefore, is entitled to summary judgment. Section 204 of the Pennsylvania No-Fault Insurance Act provides that no-fault benefits shall be paid first by the victim's insurance company if the victim is insured under a no-fault policy. Although Patti Heusle was not the named insured, the Travelers policy provided protection for any relative of the named insured, George Heusle. Relative, in turn, is defined by the policy as any person related to the named insured by blood who resides in the same household whether or not temporarily residing elsewhere. Prior to the time Patti Heusle enlisted in the Coast Guard, she resided with her parents. The parties agree that at the time Patti Heusle was injured she maintained no residence other than at her parents' residence. The Court, therefore, concludes that Patti Heusle was insured by Travelers' insurance policy. National Mutual would be liable to the Plaintiffs for Patti Heusle's damages only if Patti Heusle was not insured by Travelers. Since the Court determines that she was so insured, there is no basis on which to impose liability on National Mutual.
Travelers contends that § 206(a) of the Pennsylvania No-Fault Insurance Act provides that the government benefits received by Patti Heusle must be deducted from the amount to which she is entitled under the Pennsylvania No-Fault Insurance Act. Section 206(a) provides:
". . . [A]ll benefits . . . that an individual receives . . . from social security (except those benefits provided under Title XIX of the Social Security Act and except those medicare benefits to which a person's entitlement depends upon use of is so-called `life-time reserve' of benefit days) workmen's compensation, any State-required temporary, nonoccupational disability insurance, and all other benefits . . . received by . . . an individual because of the injury from any government, unless the law authorizing or providing for such benefits or advantages makes them excess or secondary to the benefits in accordance with this act, shall be subtracted from loss in calculating net loss." (emphasis supplied)
Travelers contends that (1) the benefits Patti Heusle received on account of her service in the Coast Guard are included within the phrase "all other benefits . . received . . . from any government" and (2) the statute authorizing the payments, 10 U.S.C. § 1071 et seq. does not make the benefits excess or secondary to *277 the benefits provided by the Pennsylvania No-Fault Insurance Act. It is the Court's view that Travelers is correct.
Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) requires that the Court apply Pennsylvania law in construing the Pennsylvania No-Fault Insurance Act. The Pennsylvania Supreme Court has not construed section 206(a) of the act. The Commonwealth Court of Pennsylvania, in Erie Insurance Exchange v. Sheppard, 39 Pa.Cmwlth. 30, 394 A.2d 1075, 1076-77 (1978) has construed this section as has the Court of Common Pleas of Philadelphia County, in Bowdren v. State Farm Insurance Company, 6 D&C 3d 292 (1977). In Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967), the Supreme Court of the United States stated that decisions of lower state courts should be afforded some weight but that they are not controlling when the highest court in the state has not spoken on the point. Accord National Surety Corp. v. Midland Bank, 551 F.2d 21, 29 (3d Cir. 1977). The Court, therefore, will give due weight to these lower court decisions but is not bound by them. In any event, it is the Court's view that the facts of this case are distinguishable from the facts in Erie Insurance and Bowdren.
The Court notes that the language of § 206(a) is all-inclusive. Unless the government benefits are excess or secondary, all benefits received from any government must be subtracted from the amount recoverable under the no-fault act. Plaintiffs argue that the phrase "all other benefits" must be construed in light of the specific examples listed in the statute: social security, workmen's compensation, and state required temporary non-occupational disability insurance. It is Plaintiffs' position that only these government benefits available to an extremely large number of people were intended by the legislature to diminish the no-fault benefits received. Plaintiffs claim that benefits such as Patti Heusle received are related specifically to her employment by the Government and, therefore, are not benefits to be subtracted from no-fault benefits pursuant to § 206(a). This argument was accepted by the courts in Bowdren and Erie Insurance.
It is the Court's view, however, that there is no basis in the statute for this added exception to § 206(a). The examples set forth in § 206(a) are by way of illustration but not of limitation. The exception suggested by Plaintiffs is contrary to the policy of the Pennsylvania No-Fault Insurance Act. Section 203 of the Pennsylvania No-Fault Insurance Act provides for a reduction in no-fault premiums if an insured obtains other insurance he designates as the primary source of benefits in the event of an injury covered by the No-Fault Insurance Act. In Singer v. Sheppard, 33 Pa. Cmwlth. 276, 381 A.2d 1007, 1012 (1978), the Commonwealth Court of Pennsylvania found that § 203 was intended to encourage people to purchase collateral insurance which in turn would reduce the risks borne by no-fault insurers presumably leading to lower insurance rates for all motorists. Similarly, § 206, by requiring recourse to government benefits before permitting the recovery of no-fault benefits, has the effect of reducing the risk which must be borne by no-fault insurers and presumably results in lower premiums for motorists. This goal is consistent with the stated policy of the Pennsylvania No-Fault Insurance Act: to provide adequate basic loss benefits at a reasonable cost to the purchaser of motor vehicle insurance. 40 P.S. § 1009.102.
Sections 203 and 206 are compatible because in each the legislature contemplated that benefits other than no-fault benefits would be the primary sources from which an injured person recovers. If a person purchases such insurance and designates it to be his primary source of recovery, § 203(c) provides that his no-fault insurance premiums must be reduced to reflect the anticipated reduction of basic loss benefits. If, however, the no-fault premiums are not reduced, a person carrying two types of insurance is entitled to receive benefits under both plans. In the case of government programs in § 206, however, there is no direct reduction in insurance premiums.
*278 The Commonwealth Court in Singer held that this was a reasonable decision by the legislature in view of the fact that it would be difficult to calculate the appropriate premium reductions in the case of government mandated programs because of variables involved in determining whether a particular insured is covered under such a government program. Singer v. Sheppard, 33 Pa. Cmwlth. 276, 381 A.2d 1007, 1012 (1978). Although there are no direct rate reductions, the Commonwealth Court found that § 206 would lead to lower premiums overall because of the reduced risk faced by no-fault insurers. Further, the beneficiary of a government program does not purchase the protection as does one who purchases additional insurance as contemplated by § 203. Government programs are paid for from general revenues to which all taxpayers contribute. To the extent that the denial of no-fault funds represents a benefit to insurance companies, it is a benefit intended by the legislature and one which also inures to all motorists in the form of lower premiums.
This case is also distinguishable on its facts from Erie Insurance. The Government benefits involved in Erie Insurance were sick pay received by government employees. In that case, the sick pay benefits were exhaustible and the Commonwealth Court relied on that fact in reaching its decision. Erie Insurance Exchange v. Sheppard, 39 Pa.Cmwlth. 30, 394 A.2d 1075, 1077 (1978). The Commonwealth Court noted that exhaustible sick pay is similar to the medicare payments excluded from Section 206 because the medicare payments so excluded are also exhaustible. This distinction further reduces the persuasiveness of Erie Insurance.
The Bowdren opinion does not clearly indicate whether the wage continuation plan under which the plaintiff continued to receive his salary while he was injured was exhaustible. The insurance company in Bowdren had refused to pay the wage loss contending that § 206 was applicable. The Court of Common Pleas rejected this argument in part because of its interpretation that the only government benefit programs included within § 206 were general programs such as social security or workmen's compensation and in part because § 103 specifically includes as loss of income that which would have been lost but for any wage continuation plan. This indicates that the legislature did not intend to reduce no-fault benefits on account of a worker's wage continuation plan. In the above-captioned case, however, Sections 203 and 206 clearly evidence a legislative intent to reduce no-fault benefits when an insured receives government benefits which are intended to be primary.
Plaintiffs contend that Patti's Heusle benefits from the Coast Guard should not be deducted from her no-fault benefits because they arise out of an employer-employee relationship. There is no dispute that one reason Patti Heusle joined the Coast Guard was the benefit plan. It is the Court's view that this is irrelevant to the interpretation of § 206. First, the reason a person is entitled to government benefits is not relevant to the legislative purpose in excluding those benefits when calculating no-fault benefits. It is the fact that the Government benefits compensate the insured and, therefore, no-fault insurance is not needed for compensation that is behind the exclusion. Second, although the medical benefits were an inducement to join the Coast Guard, there was no direct cost to Patti Heusle for the benefits. It is irrelevant whether she may or may not have joined the Coast Guard if these benefits did not exist. The fact remains that the benefits were provided by the Government and like any government program, certain qualifications had to have been met for her to be eligible to receive benefits. In order to qualify for social security, a person must work for a minimum period of time. Similarly, in order to qualify for workmen's compensation one must be employed. It is immaterial that the qualification for this particular government program was a commitment to serve in the United States Coast Guard. Having complied with the requirements for membership in the program, Patti Heusle was entitled to, and did receive, *279 the benefits. For these reasons, the Court concludes that the payments Patti Heusle received from the United States constituted "benefits . . . received . . . from any government."
Plaintiffs contend that Patti Heusle's Coast Guard benefits are secondary to her no-fault benefits so that she is entitled to no-fault benefits because of the exception in § 206(a). The only evidence submitted in support of this contention is 10 U.S.C. § 1086(d) and 32 C.F.R. § 199.14. It is the Court's view, however, that neither of these sections is applicable in this action. Plaintiffs' failure to offer any evidence in support of their position that the Government benefits are secondary requires the Court to grant Defendants' motion for summary judgment.
Title 10 U.S.C. § 1086(a) authorizes the Secretary of Defense to contract for health benefits for certain persons. Subsection (c) defines those persons by reference to 10 U.S.C. § 1074(b). That section refers to a member or former member of a uniformed service who is entitled to retirement or retainer pay. There is no evidence that Patti Heusle was entitled to retirement or retainer pay at the time of her accident. Title 10 U.S.C. § 1086(c) also refers to persons named in 10 U.S.C. § 1076(b). That section, which is entitled "Medical and dental care for dependents: general rule," is applicable only to a dependent of a member or former member of a uniformed service. Patti Heusle is not a dependent of a member of a uniformed service but was herself a member of a uniformed service.
Sub-section (2) of 10 U.S.C. § 1086(c) also includes "a dependent of a member of a uniformed service who died while on active duty." Once again, Patti Heusle was not a dependent of a member of a uniformed service. Whatever the case may have been if Patti Heusle's benefits had been paid pursuant to a contract authorized by 10 U.S.C. § 1086, that section, and sub-section (d) thereof, have no bearing on the Court's decision in this case.
For the same reason, 32 C.F.R. § 199.14 cited by Plaintiffs is irrelevant to this case. Title 32 C.F.R. § 199.1 states that part 199, of which 32 C.F.R. § 199.14 is a part, sets forth the policies and procedures of the Civilian Health and Medical Program of the Uniform Services (CHAMPUS) for dependents of active duty members of uniformed services, retired members of uniformed services, dependents of retired members of uniformed services and dependents of deceased active duty or deceased retired members of uniformed services. This regulation is inapplicable to Patti Heusle because she was not a dependent of an active duty member or a retired member of a uniformed service. Title 32 C.F.R. § 199.9 sets forth who is eligible for CHAMPUS benefits. It then lists the following people: retired member or former member of a uniformed service entitled to retirement pay; the spouse, widow or widower of an active duty member or retiree; and a child of an active duty member or of a retiree. Once again, it is clear that Patti Heusle does not fall within these provisions. Finally, 32 C.F.R. § 199.9(d) provides:
"In those circumstances, where an active duty member is also a dependent of another active duty member: Dual Coverage, i. e. entitlement to direct care from the Uniformed Services Medical Care System and CHAMPUS is the result. Since the active duty status is primary and it is the intent that all medical care be provided an active duty member through the Uniformed Services Medical Care System, CHAMPUS eligibility in such "Dual Coverage" situations is therefore terminated as of 12:01 A.M. on the day following the day Dual Coverage commences."
This section makes it abundantly clear that Patti Heusle's right to government benefits does not arise under 32 C.F.R. § 199.
When a motion for summary judgment is made, the party opposing that motion must come forward with evidence to demonstrate that there is a factual issue with respect to any issue as to which it has the burden of proof. In this case, Plaintiffs had the burden of showing that the Government benefits provided Patti Heusle fall *280 within the exception in § 206(a) of the Pennsylvania No-Fault Insurance Act. Plaintiffs have failed to discharge this burden of proof and Travelers and National Mutual are entitled to summary judgment.
The Court finds Plaintiffs' contention that the United States is either an insured under the Travelers policy or a third party beneficiary thereof to be without merit. If Plaintiffs' contention were correct, then there would be no purpose to § 206 of the Pennsylvania No-Fault Insurance Act. Plaintiffs would have this Court construe the Travelers policy to provide payment in the same circumstances in which the legislature has determined that the no-fault insurer need not pay, namely when the insured receives government benefits. Convenient maxims of construction, such as "ambiguities in contracts should be construed against the draftor" or "insurance policies should be construed in favor of the insured" do not warrant a finding for Plaintiffs in this case.
Plaintiffs rely on Government Employees Insurance Company v. Rozmyslowicz, 449 F.Supp. 68 (E.D.N.Y.1978), United States v. Leonard, 448 F.Supp. 99 (W.D.N.Y.1978) and United States v. Government Employees Insurance Company, 330 F.Supp. 1097 (E.D.N.C.1971) in support of their position. It is the Court's view, however, that those cases are distinguishable from this case. In each case, the courts relied on language in the insurance policies to justify their decisions that the Government was either an insured under the policy or a third party beneficiary thereof. The Travelers insurance policy in effect at the time of the accident includes a provision for the reduction of payments on account of certain government benefits. The language in the policy paraphrases the language in § 206(a) of the Pennsylvania No-Fault Insurance Act. This clearly indicates that the Travelers policy does not contemplate the government paying the benefits as an insured or as a third party beneficiary of the insurance contract. The language in the policy is completely consistent with the statutory scheme which envisions relying on benefits provided by other than no-fault insurers if they are adequate to compensate the victim.
The Court is of the view that it is appropriate to comment on Plaintiffs' attempt to use certain definitional sections of the insurance policy as proof that the Government is either an insured or a third party beneficiary. Unlike many insurance policies, the Travelers policy is written in language which is comprehensible to laymen. Insurance companies should be encouraged to write their policies in readily understandable language. A company should not fear that by simplifying its policy it runs the risk of incurring obligations not contemplated by the no-fault statute or not reasonably expected by the parties. The Travelers policy, in addition to being clearly written, also explicitly provides for the reduction of benefits contemplated by § 206(a) of the no-fault act.
Section 206(a) provides that government benefits must be subtracted from the otherwise available no-fault benefits in determining Travelers' liability. In addition, Plaintiffs claim that Patti Heusle is entitled to wage continuation benefits, although the record in this case does not indicate clearly whether Plaintiffs are entitled to this relief. Counsel for Plaintiffs and Travelers shall attempt to agree on the amount of Travelers' liability, including interest as provided in § 106(a)(2), and shall submit within 30 days of the date of this opinion a proposed judgment. If they are unable to agree, each party shall submit its proposed judgment accompanied by a brief explaining why the Court should adopt it at the end of the 30-day period. Each party shall have 15 days from the date its opponent's proposed judgment is submitted in which to file a response.
Section 107 provides for an award of attorney's fees on behalf of a successful plaintiff. Inasmuch as no evidence has been presented as to the reasonable value of Plaintiffs' attorney's services, the Court will not at this time enter an order respecting attorney's fees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263708/ | 479 F.Supp. 936 (1979)
Gladys SNOW, Individually, and Gladys Snow as Administratrix of the Estate of Randall Alan Chambers, Deceased, Plaintiff,
v.
UNITED STATES of America, Reynolds Electrical and Engineering Co., Inc., Fenix and Scisson, Inc., Lawrence Livermore Laboratories and University of California, Defendants.
No. CIV-LV-79-40, HEC.
United States District Court, D. Nevada.
September 5, 1979.
Supplemental Decision November 5, 1979.
*937 I. Russell Phillips, John P. Foley, Las Vegas, Nev., for plaintiff.
Arthur L. Williams, Jr., Las Vegas, Nev., for defendant REECo.
B. Mahlon Brown, U. S. Atty. by William C. Turner, Asst. U. S. Atty., Las Vegas, Nev., Sandra Wien, Simon, James P. Klapps, Mark S. Feldheim, U. S. Dept. of Justice, Civ. Div., Washington, D. C., for defendant U. S.
Leland Eugene Backus, Las Vegas, Nev., for defendants, Fenix and Scisson, Inc.
DECISION AND ORDER
CLAIBORNE, District Judge.
The within action is before the Court on separate Motions to Dismiss or, in the Alternative, for Summary Judgment, filed on behalf of Defendants United States of America ("the government") and Reynolds Electrical and Engineering Co. ("REECo"). Both Defendants allege that the complaint fails to state a claim, and cannot possibly be amended to do so. With one exception as hereafter mentioned, the facts are undisputed.
On or about February 20, 1978, Randall Alan Chambers was employed as a driller helper at the U19t drillsite location at the Nevada Test Site by Defendant REECo. The government owns the Nevada Test Site and, by and through the Department of Energy, maintains a contract for drilling work with REECo; as such, REECo stands *938 in the position of an independent contractor.[1] At approximately 7:55 p. m. on the 20th, while performing a routine operational task of removing a sheet of plywood covering the drillsite hole, Chambers fell some 1172 feet to his death.
Plaintiffs allege that the proximate cause of Chamber's death fall was Defendants' failure to analyze or enforce numerous safety standards surrounding this type of work activity. These include the hiring of Chambers despite his limited drilling experience and in contravention to REECo regulations, providing him little or no safety instructions regarding plywood removal, failing to maintain safe footing around the hole by not repairing its metal covers and by not removing ice, mud, grease and snow from the covers, failing to wear or require the wearing of mandatory safety belts around the hole, and the apparent nonposting of adequate warning signs regarding the necessity of wearing safety belts.
The affidavits and exhibits surrounding this motion indicate that on February 20, 1978 REECo was authorized to maintain appropriate Worker's Compensation coverage, the costs of which were allowable and were in fact paid by the Department of Energy to REECo pursuant to a contract between said parties. According to the affidavit of Kenneth Johnson, claims manager for the Nevada Industrial Commission, the accident was reported to the N.I.C. and the N.I.C. paid compensation in the form of funeral expenses to the Estate of Chambers.[2] According to the affidavit of Gladys Snow, Plaintiff herein, the funeral burial expenses of her son were accepted by Palm Mortuary, but she never directed Palm Mortuary to accept said expenses, ratified the acceptance thereof, or personally filed a claim on behalf of her deceased son against the N.I.C.
Plaintiff, the administratrix of the Estate of Chambers and mother of the deceased, filed a claim with the government on August 14, 1978, in accordance with 28 U.S.C. § 2672 and 10 C.F.R. Part 14, which was subsequently denied. Thereafter, she filed the within action under the Federal Torts Claims Act (28 U.S.C. § 2671), alleging jurisdiction under 28 U.S.C. § 1346(b), which states:
. . . [T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for . . . death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
The parties are in agreement that 28 U.S.C. § 1346(b) means that this Court is to apply Nevada law to these facts and, since the accident undisputably occurred while the deceased was acting in the scope and course of his employment, the Nevada law to be applied is the Nevada Industrial Insurance Act (NIIA), or N.R.S. ch. 616. It is the basic contention of the government and REECo that this lawsuit cannot be maintained as a matter of law because Plaintiff's entitlement to death benefits under the NIIA constitutes her exclusive remedy.
As to the Defendant REECo, the deceased's employer at the time of the accident who was covered under the NIIA, the Nevada Supreme Court outlined its duties and liabilities in Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 561 P.2d 450 (1976):
Employers who accept the [Nevada Industrial Insurance] Act and provide and secure compensation for injuries by accident *939 sustained by an employee arising out of and in the course of employment are `relieved from other liability for recovery of damages or other compensation for such personal injury . . .' NRS 616.270. This provision, of course, forbids suit by the injured employee against his employer. [cites omitted] This "exclusive remedy" provision of the Act is exclusive in the sense that no other common law or statutory remedy under local law is possessed by the employee against his employer. [cites omitted]
561 P.2d at 454. The only difference between Schupbach and the case at bar is that the former applied the exclusivity principle to a disabled worker covered under the act, while this case involves entitlement to death benefits. The distinction is without a difference, however; N.R.S. 616.370(1) specifically states that the rights and remedies provided in Chapter 616 for an employee on account of an injury by accident sustained arising out of and in the course of the employment shall be exclusive of all other rights and remedies of the employee's personal or legal representatives.
As to the government, three cases directly support their argument of exclusivity. In Frith v. Harrah South Shore Corp., 92 Nev. 447, 552 P.2d 337 (1976), an employee of a construction company who had contracted with Harrah's for some construction work was injured while working on Harrah's property. After the accident he received workers compensation, but thereafter sued Harrah's. The Nevada Supreme Court affirmed the trial court's judgment for Harrah's, and held that where an owner of property on which a construction worker was injured is the principal contractor and therefore the principal employer of the injured worker,[3] and the construction company is the bona fide employer of the worker who was injured in the scope and course of employment, an award of compensation under the NIIA constitutes the worker's exclusive remedy. 552 P.2d at 341.
The Nevada Supreme Court's decision applied to private individuals, of course, but this Court more recently applied the same principles to the government in the context of an action filed under the Federal Torts Claims Act. In Barker v. Luna, 439 F.Supp. 810 (D.Nev.1977), an employee of a construction company who had entered into a construction contract with the Small Business Administration of the United States government for some construction work was injured in the course and scope of employment. The Barker Court denied judgment in favor of the government in that case for the reason that neither the prime contractor nor the subcontractor had procured industrial insurance for the plaintiff, but in so doing noted that the case of Roelofs v. United States, 501 F.2d 87 (5th Cir. 1974) accurately stated the law as to the "converse" situation (i. e., where industrial insurance has been procured at the time of the accident), since both the compensation statutes in the Roelofs case and the NIIA make compensation under the act "the sole remedy against any employer." 439 F.Supp. at 813.
Roelofs is indistinguishable from the case at bar. In that case, an employee of Sperry Rand, who had a government contract with the United States Army and thereunder operated an army ammunition plant on government-owned land, was injured in the scope and course of employment. The government-Sperry contract obligated Sperry to provide its workers with workmens compensation coverage and the government to reimburse Sperry therefor. Such coverage was obtained and in effect at the time of the accident. The Fifth Circuit reversed an order of summary judgment for the employee, holding that inasmuch as compensation coverage had been procured, the government was entitled to the same immunity as a private state employer under the state worker's compensation statutes. 501 F.2d at 93-94. The implication of Roelofs and Barker, then, is that the Nevada Supreme Court's decision in Frith would be every bit as applicable to the government, where the government is in the position of a "principal contractor," as it was to Harrah South Shore Corp.
*940 Plaintiff argues that this is not the appropriate law to apply, however, for two reasons: 1) There presently exists a question of fact as to whether Plaintiff rejected the N.I.C.'s award in this case; if she did not, she contends, then she may bring this lawsuit since the NIIA would no longer apply to the situation at bar; 2) The NIIA does not apply where the work is extrahazardous in nature, as was the situation at bar.
The California Court of Appeals, applying Nevada law in a "conflict-of-laws" case, directly rejected Plaintiff's first argument in Howe v. Diversified Builders, Inc., 262 Cal.App.2d 741, 69 Cal.Rptr. 56 (1968). The Howe court held that a purported rescission and waiver of benefits after the same were paid out was meaningless; the court construed N.R.S. § 616.270(2) in that situation to mean that once the employer complies with the provisions of the NIIA, the employees are not given the right to accept or reject the terms of the act. 262 Cal.App.2d at 747, 69 Cal.Rptr. 56.
As to the second argument, Plaintiff cites no authority for the proposition that Chapter 616 of the Nevada Revised Statutes does not apply to accidents in the course of and arising out of employment which is ultrahazardous in nature. To accept this argument, this Court would have to strain Chapter 616 in a most unnatural manner. First of all, liability in connection with ultrahazardous activity is tantamount to liability without fault; however, N.R.S. § 616.020 defines a compensable "accident" to be one which, inter alia, occurs with or without human fault. Secondly, N.R.S. § 616.055 defines "Employee" and "workman" in the broadest possible terms, and the list of "Exclusions" thereon in N.R.S. § 616.060 does not include any person engaged in ultrahazardous activity. Thirdly, N.R.S. § 616.090 defines "employer" in the broadest possible terms. It would seem to me that the only real effect which extrahazardous employment has under the Act is that it increases the industrial insurance premiums which the employer has to pay. Cf. N.R.S. § 616.395.
Plaintiff supports this second argument on the basis of McGarry v. United States, 370 F.Supp. 525 (D.Nev.1973). McGarry involved a REECo employee who was electrocuted at the Nevada Test Site. This Court held the government liable under the Federal Tort Claims Act, principally on the theory that the work involved was dangerous and the government, as the employer of the independent contractor REECo, owed a nonvicarious nondelegable duty to the contractor's employees while performing such work. 370 F.Supp. at 564. That fifty page decision covers the United States' potential liability under 28 U.S.C. § 2671 et seq. in just about every imaginable situation except the situation at barwhere the employment is covered by industrial insurance; there are no facts in that case which would indicate that an N.I.C. award was made on behalf of the Plaintiff therein. In that respect, then, McGarry is entirely consistent with Barker v. Luna, supra, and does not have any bearing on this case, especially since the N.I.C. award in the case at bar did not turn on whether REECo was an employer as opposed to an independent contractor, but whether REECo was a subcontractor of a principal contractor. Cf. N.R.S. § 616.085.
As I see it, the situation at bar at present is this: if I were to apply chapter 616 of the Nevada Revised Statutes and the aforementioned cases construing said chapter to the case at bar, I would have no choice but to grant the Defendants, Motions to Dismiss or, in the Alternative, for Summary Judgment and dismiss the action with prejudice as to those two Defendants. I am not yet convinced that the law should be applied so mechanically to this case, for the following reason:
If I assume for the sake of argument that these Defendants wrongfully caused the death of Chambers, and if I assume for the sake of argument that the accident was not work-related, then Plaintiff herein has standing to sue for wrongful death, as she is the personal representative of the deceased under N.R.S. §§ 41.080 and 41.100, and may recover damages for loss of probable *941 future companionship, society and comfort of her son. Cf. N.R.S. § 41.090; Borrego v. Stauffer Chemical Co., 315 F.Supp. 980, 985-986 (D.Nev.1970). In other words, it would seem to me that in the non-work related accident situation, the only procedural bar Mrs. Snow would face would be to prove that she is in fact the legal representative of the deceased. However, if I assume for the sake of argument that the accident was in fact work-related, then N.R.S. § 616.615(6) requires Mrs. Snow to prove that she was wholly dependent upon Chambers for support at the time of the accident in order to be entitled to death benefits; unless she can prove this, she is barred procedurally under the NIIA from obtaining anything other than funeral expenses.
The question which bothers me is this: Does the Nevada legislature have a rational basis for concluding that the legal representative of a deceased need not prove that she is wholly dependent upon the deceased for support in the non-work-related accident situation, but that the same representative must prove that she is wholly dependent upon the deceased for support in the work-related accident situation? Or, has the Nevada legislature acted arbitrarily and capriciously in making that distinction, in violation of Plaintiff's Fourteenth Amendment rights? I do not have a ready answer to my own question. Therefore, it is the order of the Court that the parties follow this procedure:
1) Within twenty days of service of this Decision and Order, Plaintiff shall file and serve supplemental Points and Authorities on the issue raised herein by this Court, plus any other issue not already decided herein;
2) Within twenty days of service of said supplemental Points and Authorities, Defendants and any of them shall file and serve supplemental Points and Authorities in response; and
3) Thereafter, the matter shall stand resubmitted.
SO ORDERED.
SUPPLEMENTAL DECISION
On May 15, 1979, Defendants United States of America and Reynolds Electrical and Engineering Co. ("REECo") filed Motions to Dismiss or, in the Alternative, Motions for Summary Judgment. Both Defendants alleged that this wrongful death action under the Federal Tort Claims Act is barred by the "exclusivity principle" of the Nevada Industrial Insurance Act, meaning that Plaintiff's sole remedy in the case at bar is relegated to whatever she can recover under said act. On August 31, 1979, this Court rendered an interlocutory decision, in which I agreed with the Defendants in their interpretation of the relevant provisions of the N.I.I.A. and case law construing the same. However, because of the fact that Plaintiff in this case is limited to recovery of funeral expenses for the death of her son, due to the fact that she was not "wholly dependent" upon him within the meaning of N.R.S. § 616.615(6), I ordered the parties to submit additional briefs on the issue of whether the Nevada Legislature acted arbitrarily and capriciously in propounding a statute which has the effect of leaving this Plaintiff without an adequate remedy. The parties have submitted additional briefs on this issue, and the Court now renders the following supplemental decision:
As early as 1917, the United States Supreme Court extensively examined the theory behind workers' compensation law in New York Central Railroad Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917). The Court examined the workers' compensation laws of the State of New York from many different angles and found them not to be unconstitutional. The Court found many rational bases for doing away with employer-employee litigation based upon a system of fault and substituting in its stead a no-fault system designed only to compensate the worker for his or her loss of earning power. The Court also mentioned in passing, however, that death benefits under the pertinent statute were to be measured according to the dependency of the deceased worker's survivors. 37 S.Ct. at 252. Although the White Court did not *942 state as such, the rational basis for requiring dependency as a prerequisite for recovery of workers' compensation death benefits is clear: the purpose of the workers' compensation system is to compensate the injured worker for his loss of earning power, (Id. at 255) and it follows therefrom that when the worker dies as a result of an industrial accident, the ones who are directly affected by his or her loss of earning power are those who were dependent upon his or her wages while s/he was alive.
This also was the reasoning of the Colorado Supreme Court in Ryan v. Centennial Race Track, Inc., 580 P.2d 794 (Colo.1978), a case very similar to the one at bar. In Ryan, the decedent, who was employed by the defendant, was fatally injured in an elevator accident while in the course and scope of his employment. Since the defendant was covered under the state industrial insurance act, the state industrial accident commission paid the plaintiff, decedent's father, $1,000 in funeral benefits. However, the commission paid no death benefits because it found that plaintiff had not been financially dependent upon his son as a matter of law. Plaintiff brought a wrongful death action against defendant, but the Colorado Supreme Court held that the action was barred by the "exclusive remedies provisions" of the Colorado Workers' Compensation Act. 580 P.2d at 797. In arriving at that conclusion, the Court stated:
. . . the dependency requirement [is] rationally related to the purposes of the Workmen's Compensation Act. Since workmen's compensation recovery, unlike tort recovery, is directly related to the loss of an employee's earning capacity and support for those financially dependent upon the deceased employee, . . those not financially supported by a deceased employee suffer no compensable loss with his death.
580 P.2d at 797, citing Mullarkey v. Florida Feed Mills, Inc., 268 So.2d 363 (Fla.1972), appeal dismissed, 411 U.S. 941, 93 S.Ct. 1923, 36 L.Ed.2d 406 (1973).
The constitutionality of the result at bar was explained in a different way in another similar case, Leech v. Georgia-Pacific Corporation, 259 Or. 161, 485 P.2d 1195 (1971). In the Leech case, the Plaintiff, a twenty-eight year old incompetent since birth by reason of mental retardation, brought a wrongful death action against her father's employer. Her father was killed in an industrial accident, during which time defendant was covered under the state's workers' compensation act. Although plaintiff was totally dependent upon her deceased father, she was not eligible for compensation death benefits under the relevant statute because she was greater than eighteen years of age. The Oregon Supreme Court held that she was barred from bringing the wrongful death action, even though she received no benefits from the state's industrial accident commission, because the defendant had complied with its statutory duties to provide compensation coverage for its employees, thereby relieving itself of all other liability for said industrial accident. 485 P.2d at 1196-1197. In justifying the constitutionality of this result, the Leech court quoted from the Supreme Court decision of Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970):
In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some `reasonable basis,' it does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.' [cites omitted] `The problems of government are practical ones and may justify, if they do not require, rough accommodationsillogical [though] it may be, and unscientific.' [cites omitted] `A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' [cites omitted]
485 P.2d at 1199.
The constitutionality of the result at bar was explained in still another way in another very similar case, West v. Zeibell, 87 Wash.2d 198, 550 P.2d 522 (1976). In the *943 West case the parents brought an action to recover for the wrongful death of their minor son, who was electrocuted while working at a laundromat. The parents were in no way dependent upon the decedent and therefore not entitled to any remedy under the State of Washington's workers' compensation act. The Washington Supreme Court held that the workers' compensation statutes constituted the parents' exclusive remedy, thereby barring the parents' action for wrongful death. 550 P.2d at 523-524. In justifying the constitutionality of this result, the Washington Supreme Court explained:
. . . there can be no vested right, however, in a tort action [wrongful death action] that can be brought only by virtue of a statute. [cite omitted] The Fourteenth Amendment does not prevent a state from amending or entirely abolishing statutory remedies. [cites omitted] Accordingly, the legislature is free to bar plaintiffs' right to recover for wrongful death . . . without offending due process and equal protection guarantees. [cite omitted]
550 P.2d at 524-525.[1]
The constitutionality of the result at bar was explained in yet a fourth way in yet another similar case, Stample v. Idaho Power Co., 92 Idaho 763, 450 P.2d 610 (1969). In Stample, the worker was electrocuted while working for defendant on a mobile line crew which was energizing a new substation. Plaintiffs, the decedent's parents, filed a claim with the Idaho Industrial Accident Board, which was denied on the ground that they were not "dependents" within the meaning of the state's industrial insurance act. Plaintiffs then brought a wrongful death action against the defendant, and the Idaho Supreme Court held that the action could not be maintained since the act's purpose and intent was to remove all industrial accident cases from the courts. 450 P.2d at 612. In justifying this result the Idaho Supreme Court stated:
And lest it be argued that this rule of law may in some cases deprive persons of a remedy for damages which they had prior to the passage of the Workmen's Compensation Law, we note that that law has a dual policy, as stated in Smither & Co. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220 (1957): `The purpose of these laws was to provide "not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinative." Thus, anything that tends to erode the exclusiveness of either the liability or the recovery strikes at the very foundation of statutory schemes of this kind, now universally accepted and acknowledged.'
450 P.2d at 613.
In response to this, however, Plaintiff tenders two arguments: 1) The effect of the Nevada Industrial Insurance Act is to take away her right to sue under the Nevada Wrongful Death Act without substituting an adequate alternate remedy, thereby depriving her of due process of law; 2) Since Plaintiff was not paid anything which reasonably could be labeled as "compensation," the Nevada Industrial Insurance Act does not apply to her and therefore she may sue for wrongful death. The West and Stample Courts rejected the first argument, as did the Fifth Circuit in construing Alabama law in Patterson v. Sears-Roebuck & Co., 196 F.2d 947, 949 (5th Cir. 1952). The Utah Supreme Court rejected the second argument in Henrie v. Rocky Mountain Packing Corp., 113 Utah 415, 196 P.2d 487 (1948). In the Henrie case, the deceased, a sixteen-year old boy, was electrocuted when he attempted to operate a freight elevator owned and operated by the defendant during the course and scope of his employment. At the time of his death the defendant had procured industrial accident coverage and the deceased left only the plaintiffs, his nondependent parents, as his next of kin. The State Industrial Commission ordered defendant to pay $1,000 *944 into the state treasury and $150 as and for funeral expenses, and no other payments. Plaintiffs brought an action for wrongful death and the Utah Supreme Court held that the money paid by defendant pursuant to the Industrial Commission's orders constituted "compensation" and, as such, constituted the parents' exclusive remedy and denied them the right to bring a wrongful death action. 196 P.2d at 493-494.
While the Nevada Supreme Court has never ruled upon the constitutionality of N.R.S. § 616.615, it looks to decisions of sister states for evidence as to what the common law is in determining the existence of a right of action. Cf. Costley v. Nevada Industrial Insurance Commission, 53 Nev. 219, 296 P.2d 1011 (1931). As has been discussed, the overwhelming authority of Nevada's sister states is that their statutory counterparts to N.R.S. § 616.615 and § 616.270 are constitutional. See also Shanahan v. Monarch Engineering Co., 219 N.Y. 469, 114 N.E. 795 (1916); Jordan v. Delta Drilling Co., 541 P.2d 39, 48-49 (Wyo.1975). Accordingly, the same result must attach in the case at bar.[2]
In the Court's August 31 Decision and Order I ordered that Plaintiff could raise any other points not previously decided. She has raised two additional points. First, she requests a reconsideration of the Court's prior order viz. the applicability of the Nevada Industrial Insurance Act with respect to the Government, arguing that the cases of Frith v. Harrah South Shore Corp., 92 Nev. 447, 552 P.2d 337 (1976), Barker v. Luna, 439 F.Supp. 810 (D.Nev. 1977) and Roelofs v. United States, 501 F.2d 87 (5th Cir. 1974) are inapplicable. It is still the Court's position, however, that those casesespecially Roelofscontrol. Additionally, I would add this point: Plaintiff concedesindeed, points outthat under the Government-REECo contract on file herein the Government has the right to stop all work at the Nevada Test Site if REECo should fail to enforce safety regulations. In effect, then, Plaintiff admits that the Government as landowner of the Nevada Test Site retains a degree of control over the activities of the contractor REECo; this makes the Government a "principal contractor" and "principal employer" as a matter of law within the meaning of N.R.S. § 616.085, N.R.S. § 616.115 and the Frith decision. Cf. Titanium Metals Corporation of America v. Eighth Judicial District Court, 76 Nev. 72, 349 P.2d 444, 445 (1960).
Secondly, Plaintiff argues that N.R.S. § 616.510 denies her due process of law for this reason: § 616.510(2) provides that the determination of the status of dependents and extent of dependency are fixed as of the date of accident or injury to the employee, regardless of any subsequent events. She argues that if her husband subsequently should die, then the effect of N.R.S. § 616.510(2) is to undercut the rationale behind N.R.S. § 616.615(6) in an arbitrary fashion and leave her without any remedy whatsoever. Clearly, since Mr. Snow is alive and well, this contention is not ripe for adjudication.
Accordingly, then, I find no choice but to grant the Motions to Dismiss or, in the Alternative, Motions for Summary Judgment, and dismiss the action with prejudice as to Defendants United States of America and Reynolds Electrical and Engineering Co. An order shall be entered concurrently herewith, and the foregoing plus the Decision and Order dated August 31, 1979 shall constitute the Court's Findings of Fact and Conclusions of Law.
NOTES
[1] It is well settled that REECo's relationship to the government at the Nevada Test Site is that of an independent contractor. See Wimberly et al. v. Reynolds Electrical Engineering Co., Inc., et al., Civ. 609 (D.Nev.1966); McGarry v. United States, 370 F.Supp. 525, 529 (D.Nev. 1973).
[2] Due to the relationship between Mrs. Snow and Mr. Chambers, the sole death benefits to which Plaintiff was entitled was funeral expenses under NRS § 616.615(1).
[3] See N.R.S. § 616.085; N.R.S. § 616.115.
[1] As in the State of Washington, survival and wrongful death actions in the State of Nevada are purely creatures of statute. Cf. Davenport v. State Farm Mutual Auto Ins., Co., 81 Nev. 361, 404 P.2d 10 (1965); Borrego v. Stauffer Chemical Co., 315 F.Supp. 980 (D.Nev.1970).
[2] N.R.S. § 616.615(6) requires that a parent be wholly dependent for support upon the deceased employee in order to obtain compensation benefits. It would be an interesting question as to whether the requirement of "whole" dependence would be palpably arbitrary as applied to a parent who was more than 50% but less than 100% dependent upon the deceased employee. However, this Court need not reach this question because that is not the situation at bar. The affidavit of Kenneth R. Johnston, claims manager for the Nevada Industrial Commission, establishes that Plaintiff was not dependent in any way whatsoever upon the earnings of Randall Alan Chambers at the time of Chambers' death. As has been stated many times in this Opinion, the State Legislature may, without violation to the Fourteenth Amendment, deny workers' compensation death benefits to one who is not a dependent of the deceased employee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263719/ | 479 F.Supp. 316 (1979)
UNITED STATES of America
v.
Alan HELDON, Randy Johnston, Michael Brewer.
Crim. No. 79-153.
United States District Court, E. D. Pennsylvania.
October 4, 1979.
*317 *318 *319 Theodore A. McKee, H. Clark Connor, III, Asst. U. S. Attys., Philadelphia, Pa., for plaintiff.
Stanford Shmukler, F. Emmet Ciccone, Jeffrey M. Miller, Philadelphia, Pa., for defendants.
MEMORANDUM
TROUTMAN, District Judge.
On June 22, 1979, defendants were arrested pursuant to a sealed indictment, Count One of which charged each defendant with conspiracy to possess with intent to distribute and to distribute Phencyclidine (PCP), a Schedule III non-narcotic controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment further charged that the plan and purpose of the conspiracy acquisition, possession with intent to distribute, distribution and sale for profit of PCPbegan in June 1973 and continued until August 1977. Twenty-eight overt acts, stretching in time from February 1974 until October 1975, allegedly furthered and effected the objects of the conspiracy. Counts Two through Twenty-eight included charges of possession with intent to distribute a controlled substance, distribution of a controlled substance, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a). Defendants have filed numerous motions to dismiss all or parts of the indictment.[1]
Moving to dismiss the indictment as barred by the statute of limitations, defendants contend that the statute of limitations runs from the time that the conspiracy effects its primary goal, not when the last overt act occurs or when the conspiracy actually terminates. In the instant situation the goal and purpose of the conspiracy, to manufacture and sell PCP, occurred prior to not only the last overt act but also the termination of the conspiracy. Therefore, defendants argue, several substantive offenses as well as the conspiracy itself occurred outside the permissible time period.
An indictment charging a non-capital offense must be returned within five years of the date of the offense. 18 U.S.C. § 3282. Where a conspiracy offense requires proof of an overt act, the statute of limitations does not begin to run until the completion of the last overt act taken in furtherance of the conspiratorial agreement. Grunewald v. United States, 353 U.S. 391, 396-97, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), United States v. Johnson, 165 F.2d 42 (3d Cir. 1947), cert. denied, 332 U.S. 852, 68 S.Ct. 355, 92 L.Ed. 422 (1948), United States v. Cerilli, 428 F.Supp. 801, 808 (W.D. Pa.), aff'd, 558 F.2d 697 (3d Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 507, 54 L.Ed.2d 452 (1977). However, 21 U.S.C. § 846 does not require proof of any overt act to sustain a conviction thereunder. United States v. Knuckles, 581 F.2d 305 (2d Cir.), cert. de- *320 nied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978), United States v. Palacios, 556 F.2d 1359 (5th Cir. 1977), United States v. Dreyer, 533 F.2d 112 (3d Cir. 1976), United States v. Bermudez, 526 F.2d 89 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976). Accordingly, the statute of limitations did not begin to run until the conspiracy actually terminated. United States v. Grunewald, supra, United States v. Kissel, 218 U.S. 601, 610, 31 S.Ct. 124, 54 L.Ed. 1168 (1910), United States v. Costello, 222 F.2d 656, 662 (2d Cir.), cert. denied, 350 U.S. 847, 76 S.Ct. 62, 100 L.Ed. 755 (1955). In this instance the conspiracy did not end until August 1977. A grand jury returned the indictment in June 1979, well within the five-year period. Defendants' motion will be denied.
Defendants also move to dismiss the indictment on the grounds that the government improperly delayed indictment. Defendants' argument runs as follows. The government predicated the indictment almost entirely on evidence obtained from a state investigation and prosecution almost five years ago. The only purpose of this delay was to "lull defendants into a sense of false security, to gain a tactical advantage over them" and to obtain more evidence. The delay prejudices defendants because they are unable to account for their whereabouts during the period set forth in the indictment, to locate other witnesses who could provide exculpatory testimony and to locate alibi witnesses.
Several considerations resist this conclusion. Even a cursory reading of the indictment discloses that none of the substantive counts and only one of the twenty-eight overt acts tangentially involves the 1974 state prosecution. Too, as noted above, the conspiracy ended in August 1977, and delay is measured from this date. Finally, pre-indictment delay rises to the level of a constitutional deprivation only when defendants show that the delay resulted in actual and substantial prejudice to their right to a fair trial and that the government intentionally delayed prosecution to gain a tactical advantage over defendants. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), United States v. Stanzione, 466 F.Supp. 838 (E.D.N.Y.1979). Cf. United States v. Peifer, 474 F.Supp. 498 (E.D.Pa.1979) (defendant must demonstrate prejudice occasioned by delay between arrest and initial appearance). Except for the unadorned allegation of dimmed memories, defendants do not specify what exculpatory evidence eludes them, the names of material witnesses who cannot now be located and the substance of their testimony. Reliance on the possibility of dimmed memories, inaccessible witnesses and lost evidence without any specific factual information by which to judge whether defendants can receive a fair trial will not justify dismissing the indictment. United States v. Marion, 404 U.S. at 326, 92 S.Ct. 455. Without even a glimmer of insight into the proposed testimony of these witnesses
its potential benefit or detriment to the defendants cannot accurately be evaluated. . . . (A) trier of fact might as well assume that the (unnamed witnesses) would have placed all of the blame on the defendants, as to assume that they would have exonerated them. In either case, the conclusions appear to us as mere speculation, which cannot serve as the grounds for a finding of actual prejudice. (emphasis added)
United States v. Mays, 549 F.2d 670, 679-80 (9th Cir. 1977), United States v. Stanzione, 466 F.Supp. at 842-43. To dismiss the indictment on defendants' unnourished allegations would in effect judicially fashion a shorter statute of limitations. Defendants' motion will be denied.
Defendants' allegation that this federal prosecution is based "almost entirely" on the previous state criminal prosecution against defendant Heldon also forms the basis of defendants' motion to dismiss the indictment because of former prosecution. Conceding that the double jeopardy provisions of the Fifth Amendment do not preclude successive prosecutions by state and federal authorities for the same acts, Abbate *321 v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), defendants emphasize the "unfairness" of the federal prosecution, particularly in the absence of a compelling federal interest. As noted above, none of the substantive counts involve defendant Heldon's drug-related activities in Lackawanna and Luzerne Counties. If defendants truly considered any counts to be based on criminal activity occurring outside of this district, they would have included these counts in their motion to dismiss for lack of venue. Furthermore, the fact that only one of twenty-eight overt acts mentions the Lackawanna County incident hardly supports the inference that the federal prosecution is "virtually a second state investigation". The government has represented that it will present evidence that defendant Heldon, assisted by co-defendants Brewer and Johnston, engaged in a continuing, widespread conspiracy to distribute PCP over a large geographical area in large quantities. The substantial federal interest in controlling wholesale distribution of illegal drugs on this scale and the inability of local authorities to investigate and prosecute this activity scarcely requires comment. The "unfairness" of the federal prosecution, even by defendants' standards, is untenable. Defendants' motion will be denied.
Finally, defendants urge dismissal of Count One of the indictment. Analysis of the overt acts suggests to defendants a multiple, not single, conspiracy. No one overt act or substantive count includes all three defendants. However, the essence of conspiracy is an agreement for an unlawful purpose between two or more persons. United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 85 L.Ed. 128 (1940), United States v. DeCavalcante, 440 F.2d 1264, 1272 (3d Cir. 1971). Where individuals make such an agreement the act of any one of them becomes the act of all. Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912). Whether an overt act in a conspiracy count charges all co-conspirators is irrelevant, for
(t)he fact that a conspirator is not present at, or does not participate in, all of the conspiratorial activities does not, by itself, exonerate him. . . . (I)t is not necessary for each conspirator to have entered into the unlawful agreement at its inception.
United States v. Ashley, 555 F.2d 462, 467 (5th Cir.), cert. denied sub nom. Leveritte v. United States, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977). The government has represented that at trial it will introduce testimony of several persons who had direct dealings with one or more of defendants. Some of these witnesses will testify that they were present when defendants Heldon and Johnston discussed distribution of PCP. Some witnesses will testify that they personally observed defendant Brewer receive large quantities of PCP from defendant Heldon for redistribution. Co-conspiratorial statements made in the presence of these witnesses will establish that defendants Heldon and Johnston were involved in the wholesale distribution of PCP and that defendant Brewer was one of their largest and most regular outlets within the distribution process. If proven at trial, the government will have established a general scheme to illegally distribute PCP and that each defendant entered into an agreement to further that scheme. A single conspiracy has been charged. United States v. Kenny, 462 F.2d 1205, 1216 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972). Defendants' motion will be denied.
Defendants have filed several other pre-trial motions. First, under Fed.R. Crim.P. 14, defendants move for relief from misjoinder and for a severance. Fed.R. Crim.P. 8(a) permits the joinder of two or more offenses in the same indictment if "the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan". Rule 8(b) allows defendants to be joined if "they are alleged to have participated in the same act or transaction or in the same series of acts or transactions *322 constituting an offense or offenses". Defendants argue that joinder of these charges was improper because the indictment on its face does not connect each of the substantive counts into a common scheme or plan. Defendants point to the fact that in no instance are all three defendants joined in the same overt act or substantive count of the indictment. However, so long as the evidence introduced at trial connects each of the defendants to an overall general scheme, joinder is proper. United States v. Kenny, 462 F.2d at 1216. See also United States v. Boyd, 595 F.2d 120, 123 (3d Cir. 1978) (an "agreement between co-conspirators, may continue over an extended period of time and involve numerous transactions"). The government has represented that at trial it will establish that defendants Heldon and Johnston began distributing PCP in or about June 1973 through a network of confederates including defendant Brewer. Several witnesses who either assisted Heldon and Johnston in the distribution of PCP, purchased PCP from them, or were present when transactions including defendants occurred will be called at trial. Some of these witnesses will testify that they distributed PCP to Brewer at Heldon's request; some will testify that, at the request of Heldon and Johnston jointly, they distributed PCP to persons not named in the indictment; others will testify that they distributed PCP to Brewer for resale at Heldon's request and with Johnston's knowledge and participation. Still other witnesses will testify that they were present when Heldon and Johnston had discussions regarding distribution of PCP. Having charged a single conspiracy, the government properly joined these offenses.
Defendants further argue that joinder of the defendants was improper, and that, to avoid prejudice which will result to each defendant when evidence against the other defendants is admitted at trial, severance ought to be granted. Defendants must demonstrate that failure to grant a severance will result in "real, not fanciful" prejudice. United States v. Segal, 534 F.2d 578, 583 (3d Cir. 1976). Whether the jury can reasonably be expected to "compartmentalize" the evidence admitted against defendants named in a particular count without considering that as evidence of guilt against the defendants not named in that count is the controlling consideration. United States v. DeLarosa, 450 F.2d 1057, 1065 (3d Cir. 1971). The "mere possibility" that evidence may be admitted against one defendant which is inadmissible against the others is not alone sufficient reason to require three trials on charges based upon a closely related series of transactions, for "(t)he prospect that certain evidence will be admissible against one defendant but not against another is a feature of all joint trials". United States v. Kenny, 462 F.2d at 1218. The government has adduced some evidence linking each defendant to the conspiracy. Evidence of acts of one co-conspirator may well be admissible against them all. Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958, 974 (1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970), United States v. Cohen, 197 F.2d 26, 29 (3d Cir. 1952). The difficulty of compartmentalizing evidence will be proportionately reduced. Defendants have failed to demonstrate "real" prejudice. Accordingly, the interests of convenience and economy as well as the efficient administration of justice dictate that defendants, having been properly joined in one indictment, be tried together. United States v. Kulp, 365 F.Supp. 747, 765 (E.D. Pa.1973), aff'd mem., 497 F.2d 921 (3d Cir. 1974).
Defendants, also seeking to discover all pre-arrest[2] statements which they made to government witnesses during the course of the conspiracy, postulate that they should receive before trial all defendants' statements regardless of to whom they were made. In effect defendants seek to discover not only those statements made to known agents during the course of interrogation but also statements made by defendants during the course of the conspiracy and intended for use by the government at *323 trial. Fed.R.Crim.P. 16(a)(1)(A) requires that
(u)pon request of a defendant the government shall permit the defendant to inspect and copy or photograph . . . the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent. (emphasis added)
The language of the rule is clear. Unless defendants' statements to third parties were in response to interrogation by a person then known to defendants as a government agent, defendants are not entitled to copies thereof. Defendants have not satisfied either requirement; the requested material remains under the protection of the Jencks Act, 18 U.S.C. § 3500. United States v. Viserto, 596 F.2d 531, 538 (2d Cir. 1979), United States v. Rinn, 586 F.2d 113, 120 (9th Cir. 1978), United States v. Zarattini, 552 F.2d 753, 757 (7th Cir.), cert. denied, 431 U.S. 942, 97 S.Ct. 2661, 53 L.Ed.2d 262 (1977). See also United States v. Azzarelli Construction Co., 459 F.Supp. 146, 151-52 (E.D.Ill.1978) and United States v. Brighton Building & Maintenance Co., 435 F.Supp. 222, 233 (N.D.Ill.1977). Defendants' motion will be denied.
Finally, defendants move for a bill of particulars in which they seek specific times and places at which defendants possessed, distributed or conspired to possess and distribute PCP, the names of persons to whom defendants delivered PCP, whether these persons were government agents, defendants' acts and statements which furthered the conspiracy, names of persons who attended any meetings in connection therewith and any overt acts furthering the conspiracy but not specified in the indictment. The purpose of granting a bill of particulars under Fed.R.Crim.P. 7(f) is to inform the defendant of the nature of the charges against him so that he may adequately prepare a defense, to avoid surprise during trial and to protect against a second prosecution for an inadequately described offense. United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir.), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812, reh. denied, 405 U.S. 1048, 92 S.Ct. 1309, 31 L.Ed.2d 591 (1972). However,
the defendant is not entitled, in advance, to a complete preview of the government's evidence and case or to "wholesale discovery" of the prosecutor's file. Prior to trial defendant is not entitled to know the identity of government witnesses through a motion for a bill of particulars . . . Similarly, defendant is not entitled to . . . disclosure of the government's legal theories or evidentiary details. (citations omitted)
United States v. Peifer, 474 F.Supp. at 501. See also United States v. Mitchell, 540 F.2d 1163, 1166 (3d Cir. 1976), United States v. Armocida, 515 F.2d 49, 54 (3d Cir.), cert. denied sub nom. Gazal v. United States, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975), United States v. Addonizio, 451 F.2d at 64, and United States v. Conway, 415 F.2d 158, 162 (3d Cir. 1969), cert. denied, 397 U.S. 994, 90 S.Ct. 1131, 25 L.Ed.2d 401 (1970). Accordingly, defendants' motion will be denied.[3]
NOTES
[1] By order the Court denied defendants' motion to dismiss the indictment or in the alternative to grant a post-indictment preliminary hearing, to dismiss Counts One, Twenty-two and Twenty-three for lack of venue, to require inquiry under 18 U.S.C. § 3504 as to electronic or mechanical surveillance and to require the government to affirm or deny its existence in this case (moot) and to discover the identity, whereabouts and involvement of informers and co-conspirators. By order the Court also granted the government's motion to compel handwriting and handprinting exemplars.
[2] The government represented that it elicited no post-arrest statements from defendants.
[3] The remainder of defendants' requests can be ascertained from the indictment itself. Concerning the first four requests, the government has represented that it does not know exact dates and places other than as specified in the indictment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263723/ | 479 F.Supp. 863 (1979)
Thrace Thompson KIRBY, as Administratrix of the Estate of Randy Thompson Kirby, Plaintiff,
v.
The UNITED STATES of America, Defendants.
Civ. A. No. 78-1060.
United States District Court, D. South Carolina, Columbia Division.
May 23, 1979.
Henry W. Kirkland, Hugh S. Roberts, Columbia, S. C., for plaintiff.
Jack L. Marshall, Asst. U. S. Atty., Columbia, S. C., for defendants.
ORDER VACATING THIS COURT'S ORDER OF OCTOBER 30, 1978
HEMPHILL, District Judge.
Pursuant to a Motion for Reconsideration filed November 10, 1978, Plaintiff moved this Court for reconsideration of this Court's Order of October 30, 1978, asked that same be vacated, and in lieu of the dismissal, direct that the motion to dismiss, *864 which predicated the Court's Order of October 30, 1978, be denied. The Court has duly reconsidered.
By necessity, a statement of the facts which gave rise to this action must be repeated. On June 29, 1978, Thrace Thompson Kirby, Administratrix of the Estate of Randy Thompson Kirby, and thus fiduciary Plaintiff, instituted this action for the alleged wrongful death of her deceased under the provisions of Section 15-51-10, South Carolina Code, 1976, anno.[1] Complaint alleges that the deceased on August 6, 1975 was riding in a vehicle on a highway in the State of South Carolina and was involved in a collision; the deceased was injured in the accident and an officer of the United States Army directed a named enlisted man to take deceased to the Moncrief Army Hospital located on the property of Fort Jackson Army Training Center; enroute the enlisted samaritan drove at a high speed, lost control of the vehicle transporting the deceased and collided with a concrete abutment and/or trees causing the death of 19-year old Randy Kirby. Defendant, of course, does not admit the allegations of the Complaint and denies same.
It appears that the alleged claims for wrongful death and painful suffering[2] (by inference) occurred immediately upon injury and death of deceased August 6, 1975. Plaintiff's claim for damages, and injury or death (Standard Form 95) was received by four government agencies; the United States Attorney for the District of South Carolina received the claim on August 8, 1977; the Department of Defense received the claim on August 9, 1977; the Secretary of the Army received the claim on August 10, 1977; the Claims Officer, Office of the Staff Judge Advocate, Fort Jackson, South Carolina, received the claim on August 9, 1977.[3]
There is no doubt about the fact that the United States "[A]s sovereign, is immune from suit save as it consents to be sued, . . . and the terms of its consent to be sued in any court defines that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586-87, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941). Statutes conferring federal jurisdiction are to be strictly construed, and doubts as to jurisdiction are to be resolved against federal jurisdiction. Johnson v. United States, 178 U.S.App.D.C. 391, 547 F.2d 688 (1976); Russell v. New Amsterdam Casualty Co., 325 F.2d 996 (8th Cir. 1964); F & S Construction Co. v. Jensen, 337 F.2d 160 (10th Cir. 1964); Honda v. Clark, 386 U.S. 484, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967); and United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976).
This Court initially recognizes that the United States District Courts are courts of statute (i. e., limited jurisdiction) whose movements, processes, jurisdiction, venue and other authority are given by the Congress in the form of statutes, or by the Constitution. This is an action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq., and such statutes confer upon this Court the authority to entertain such claims against the United States or its various subdivisions. One of the conditions upon the limited waiver of sovereign immunity established by the Federal Tort Claims Act is the requirement of 28 U.S.C. § 2401(b), which provides:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of *865 notice of final denial of the claim by the agency to which it was presented.
It is undisputed that the last day for filing the claim (Form 95) was August 7, 1977.[4] The government claims that at the earliest date a claim was received by a proper agency, the United States Army, was August 9, 1977 although the government admits that the United States Attorney's Office received a claim on August 8th. It is also uncontradicted that August 7th was on a Sabbath and, no one, I repeat no one, would expect the government to function on a Sabbath.[5] However, since the government does not function on the Sabbath, (herein, August 7, 1977) the last possible date for the receipt of the claim would thereby be extended to Monday, August 8, 1977, same being the date on which the United States Attorney for the District of South Carolina received the claim as was previously set out herein.
The Federal Rules of Civil Procedure provide "for the issuance and service of process, for the service and filing of pleadings and other papers, and for computation and enlargement of the time prescribed or allowed for the doing of various procedural acts."[6]
Rule 1 of the Federal Rules of Civil Procedure for the United States District Courts specifically sets out the purpose of the rules in the last sentence of the rules:
. . . They shall be construed to secure the just, speedy and inexpensive determination of every action.
Rule 6 of the Federal Rules of Civil Procedure is clearly applicable in this instance. The underlying purpose of Rule 6 is "to provide general guidelines and reasonable flexibility concerning the measurement of time periods under the federal rules, court orders and a number of statutes." (i. e., Federal Tort Claims Act, 28 U.S.C. § 2401(b)) Wright & Miller, Federal Practice and Procedure: Civil § 1161 (1969) as amended. Rule 6(a) sets out the following with regard to computation of time:
(a) Computation.In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.
This rule has a legislative authority so it has the force and effect of a legislative enactment. Johnson v. Harper, 66 F.R.D. 103 (D.Tenn.1975). The provision of the rule in computing time providing that the last day of the period shall be included unless it is Saturday or Sunday, was not changed or made inapplicable where the Clerk's Office had been ordered to be open for business on Saturday mornings. Jones & Laughlin Corp. v. Gridiron Steel Co., 86 S.Ct. 152, 382 U.S. 32, 15 L.Ed.2d 26 (1965). The day of the act from which the statute of limitations begins to run is not included in computing the statutory period. Bulls v. Holmes, 403 F.Supp. 475 (D.Va.1975).
This Court held in Mahler v. Drake, 43 F.R.D. 1 (D.S.C., 1967) that "The rules of federal procedure are not strict, or restricting mandates." The Court went further in explaining the rationale for its holding, stating in part that:
The Federal Rules indicate a general policy to disregard technicalities and form and to determine rights of litigants on the merits, and to that end are to be liberally construed . . . Among the avowed purposes of liberality in rule construction and application are the avoidance *866 of unnecessary litigation, . . . and the promotion of just, speedy and inexpensive justice.
The Mahler case, supra, cites the Remarks of Walter L. Brown, Esquire, of Huntington, W.Va., at the Fourth Circuit Judicial Conference, 25 A.B.A.J. 602 (1939) as standing for the proposition that, "the courts are treating the rules as tools to be used in the administration of justice instead of mandates to be construed and applied strictly."
This Court has previously adopted the liberal construction of the application of the rule in order that litigants be given opportunity to be heard and given their day in court so that justice may be served. Anderson v. Stanco Sports Library, Inc., 52 F.R.D. 108 (D.S.C.1971). Unfortunately, this ruling was not appealed nor was the ruling in Wirtz v. Local Union 611, 229 F.Supp. 230 (D.C.Conn.1964) which also called for a liberal construction. This Court, therefore, does not have the benefit of appellate wisdom and this court can find no authority that it has the right to excuse the failure to file the claim within the time prescribed by the Congress.
The case of Rodriguez v. United States, 382 F.Supp. 1 (D.Puerto Rico, 1974) involved a cause of action that was brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2401(b). In that instance, the Court found that the applicable statute of limitations would have run on a Saturday, and, thus held, that the period of limitations would therefore run until the Monday thereafter. The Court stated in pertinent part that:
. . ., the statutory period of limitations established by Section 2401(b) was enacted in 1966 without any indication that the policy of Rule 6(a) of the Federal Rules of Civil Procedure in effect at that time, should not apply. Therefore, we hold as in the above cited case of Wilkes v. United States, 192 F.2d 128 (5th Cir., 1951), that in waiving the immunity of the United States to be sued, Congress intended that the allotted time should be computed as provided in Rule 6(a) of the Federal Rules of Civil Procedure.
Prince v. United States, 185 F.Supp. 269 (D.C.E.D.Wis.1960) upheld the majority rule that Rule 6(a) is to be used in computing the statute of limitations applicable to the Federal Tort Claims Act, 28 U.S.C. § 2401(b).
As found in Wright & Miller, Federal Practice and Procedure: Civil § 1163 (1969) as amended, Rule 6 is applicable to federal statutes of limitations in the majority of the states.
This conclusion seems based on the premise that Rule 6 expresses the liberal spirit of the federal rules and their quest to avoid `setting traps for the unwary' and that this spirit should be employed in construing statutes of limitation; an alternative argument is that the computation provisions of Rule 6 inherently are fair and practical.
This section went further in pointing to the fact that there is little if any chance for prejudice in a situation such as the one at hand and further explicated that:
It is difficult to perceive how a legitimate governmental interest would be prejudiced by the application of Rule 6(a) to federal statutes of limitation. The exclusion of final Saturdays, Sundays and legal holidays would delay the expiration of a given period by, at most, two or three days, which is unlikely to inconvenience or prejudice anyone.
Wright & Miller, supra.
Plaintiff positions that the obvious fact that he mailed the claims prior to the expiration date[7] is sufficient to accomplish "filing" for the full purpose of tolling the statute of limitations, if such is really an issue. This would be sufficient if the claim were against the Postal Service because, under the Code of Federal Regulations,[8] the placing of the claim form in the mail, properly addressed and with proper postage, within the limitation period is sufficient in *867 those cases where the Post Office is the responsible agency. This is not a suit against the government because of activities of the Postal Service, but is against the United States by virtue of the activities of the United States Army. In Steele v. United States, 390 F.Supp. 1109 (S.D.Cal.1975), this point was specifically treated by the court holding:
Plaintiff has failed to demonstrate to the Court that the act of depositing an envelope in the mailbox is equivalent to receipt by a federal agency, much less "presentment" within the meaning of the controlling statutes.
The opinion went on to recite that the Postal Service is neither acting as agency for the United States nor (in that instance) the EFFA for purposes of receiving administrative claims. It has long been the law that mailing is not sufficient to accomplish a filing.[9]United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1916). We now turn to the Code of Federal Regulations[10] where we find in Title 28, Section 14.2(a), the following:[11]
(a) For purposes of the provisions of section 2672 of Title 28, United States Code, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident. If a claim is presented to the wrong Federal agency, that agency shall transfer it forthwith to the appropriate agency. (emphasis added)
Admittedly, this is a tort claim under the jurisdiction of an administrative agency of the United States. It is admitted that the claim was filed with the United States Attorney on August 8, 1977, within the statute of limitations. The statute provides that if claim was presented to the wrong federal agency, the agency shall transfer claim forthwith to the appropriate agency. Apparently this was done, and, hence, the claim was properly filed.
We have no case law to the effect that the filing with the wrong agency, to be forwarded to the appropriate agency, is sufficient. Nor do we have any case law to the contrary. Exactly what the agencies of the United States intended by this regulation is, at this point, somewhat nebulous. However, under a liberal construction, this court feels that the filing was sufficient, as the United States Attorney, the attorney now, and who was the attorney then, for the appropriate agency, as evidenced by the pleadings in this case, was the recipient of the claim on the proper date.
The Order of October 30, 1978, is vacated, and the Motion to Dismiss is denied for the reasons hereinabove stated.
AND IT IS SO ORDERED.
NOTES
[1] This is the wrongful death statute of South Carolina as recited in the October 30, 1978 Order.
[2] Section 15-5-90, South Carolina Code, 1976, anno. provides for survival of right of action for injuries. This is also recited in the October, 1978 Order.
[3] The last sentence detailing the dates and times of receipt of the claim was taken from the brief in support of the government's motion for an Order of Dismissal.
[4] The Plaintiff and Defendant, in their respective briefs, give this as the expiration date.
[5] There are a few people who surmise that some government employees do not function too well the rest of the week.
[6] 32 Am.Jur.2d, Federal Practice and Procedure § 419 (1967).
[7] This is not contested by the government.
[8] 39 C.F.R. 912.5.
[9] Note that filing is required under the terms of the statute.
[10] The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the executive departments and the agencies of the federal government.
[11] 28 U.S.C. § 2672 describes the authority for the administrative adjudication for the claims against the United States. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263727/ | 479 F.Supp. 456 (1979)
Ernest R. PACE, George W. Martin, Robert J. McAlesher, on behalf of themselves, et al., Plaintiffs,
v.
William H. FAUVER, Commissioner of New Jersey Department of Corrections, and Joanne E. Finley, Commissioner of New Jersey Department of Health, et al., Defendants.
Civ. A. No. C 79-1215.
United States District Court, D. New Jersey.
October 29, 1979.
*457 Ernest R. Pace, pro se.
John J. Degnan, Atty. Gen. of New Jersey by Dorothy Ann Dygas, Deputy Atty. Gen., Trenton, N. J., for defendants.
OPINION
WHIPPLE, Senior District Judge.
Plaintiffs Pace, Martin and McAlesher are incarcerated at Rahway State Prison in Rahway, New Jersey. They seek to establish and operate an alcoholism treatment and rehabilitation program at the prison. They have brought suit under the Civil Rights Act, 42 U.S.C. § 1983, against the Governor of the State of New Jersey and officials of the State Department of Corrections and Department of Health, seeking to compel the defendants to allow them to establish their program, as well as to provide State funds for that purpose. Presently before the Court are plaintiffs' motions for a temporary restraining order, for an order to show cause why a preliminary injunction should not issue and for a preliminary injunction, and defendants' motion to dismiss or, in the alternative, for summary judgment. The Court holds that no oral argument or evidentiary hearing is necessary, and shall proceed to decide all motions on the basis of the submitted papers. Fed. R.Civ.P. 78.
Stripped to its essentials, plaintiffs' complaint has four elements: (1) Officials of the State of New Jersey have failed to provide prisoners in the state penal system with adequate rehabilitative treatment for alcoholism, and have refused to allow plaintiffs to provide such treatment; (2) that failure to provide, and refusal to allow plaintiffs to provide rehabilitative treatment constitutes cruel and unusual punishment, *458 in violation of the Eighth Amendment to the United States Constitution; (3) that the New Jersey Alcoholism Treatment and Rehabilitation Act, N.J.S.A. 26:2B-7 et seq. (hereinafter "ATRA"), requires that rehabilitation programs be provided in prisons; (4) that defendants' refusal to permit plaintiffs' program and provide funds therefor is arbitrary, unreasoned and in violation of the New Jersey ATRA, and therefore denies plaintiffs equal protection and due process of law, in violation of the Fifth and the Fourteenth Amendments to the United States Constitution.
At the outset, the Court notes that there is a factual dispute as to whether alcoholism rehabilitation programs are provided at Rahway State Prison. Plaintiffs' affiants state that, to the best of their knowledge, there are at present no such programs. Defendants' affiant, Mr. Gary Walters, Assistant Bureau Chief of the Bureau of Professional Services in the Department of Corrections, states that there are two rehabilitative programs now operating at Rahway. However, the existence of a factual dispute as to whether certain services are provided to prisoners requires an evidentiary hearing only if failure to provide such services can be the basis for a sufficient complaint under § 1983. See Taylor v. Gibson, 529 F.2d 709, 714-15 (5th Cir. 1976).
Extending to the pro se plaintiffs the benefit of the doubt on the question of fact, see id. at 714, as to whether there are any alcoholic rehabilitation programs at Rahway, the Court must answer two questions in order to determine whether the complaint states a cause of action under § 1983: (1) whether failure to provide treatment for alcoholic prisoners constitutes cruel and unusual punishment, in violation of the Eighth Amendment; and (2) whether the New Jersey ATRA, N.J.S.A. 26:2B-7, et seq., requires that all incarcerated addicts be provided treatment services.
It is now settled that the Eighth Amendment proscribes more than just the physically barbarous punishments which the drafters had in mind when the Amendment was ratified. Gregg v. Georgia, 428 U.S. 153, 171, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); West v. Keve, 571 F.2d 158 (3d Cir. 1978). The Amendment has been held to incorporate "`broad and idealistic concepts of dignity, civilized standards, humanity and decency . . .,'" Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968), against which penal measures must be evaluated. Estelle, 429 U.S. at 102, 97 S.Ct. 285.
The government has an obligation to provide medical care for those whom it is punishing by incarceration. Id. at 103, 97 S.Ct. 285. But this does not mean that every claim by a prisoner that he has not received adequate medical care states a violation of the Eighth Amendment. Id. at 105, 97 S.Ct. 285. Nor may it be assumed that every debilitation or addiction cognizable as medically-related requires that the government establish a treatment facility or program in order not to violate a prisoner's Eighth Amendment rights. Rather, in order to state a sufficient Eighth Amendment claim a plaintiff must show such deliberate indifference on the part of prison officials to his serious medical needs as to offend evolving standards of decency. Estelle, supra at 106, 97 S.Ct. 285. See also Norris v. Frame, 585 F.2d 1183, 1186 (3d Cir. 1978); Young v. Gray, 560 F.2d 201 (5th Cir. 1977); Cruz v. Ward, 558 F.2d 658 (2d Cir. 1977). As the Third Circuit has stated, "not every injury or illness invokes the constitutional protectiononly those that are `serious' have that effect." Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976). A "serious" medical need may fairly be regarded as one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention. See id.; Laaman v. Helgemoe, 437 F.Supp. 269, 311 (D.N.H.1977).
The Court does not regard plaintiffs' desire to establish and operate an alcoholic rehabilitation program within Rahway *459 State Prison as a serious medical need for purposes of Eighth Amendment and § 1983 analysis. As the Supreme Court has stated in the context of drug addiction, "there is no `fundamental right' to rehabilitation . . . at public expense after conviction of a crime." Marshall v. United States, 414 U.S. 417, 421, 94 S.Ct. 700, 704, 38 L.Ed.2d 618 (1974). Following the Marshall reasoning, the Ninth Circuit has held that the Eighth Amendment is not violated when a drug addict is incarcerated for bank robbery rather than provided with treatment for his addiction. United States v. Krehbiel, 493 F.2d 497, 498 (9th Cir. 1974). Similarly, this Circuit has held that there is no constitutional right to methadone or to the establishment in prisons of methadone maintenance facilities for the treatment of drug addiction, Norris v. Frame, 585 F.2d 1183, 1188 (3d Cir. 1978); although under certain emergent circumstances failure to provide a prisoner with methadone treatment may constitute an Eighth Amendment violation. Id. at 1189. See also Hines v. Anderson, 439 F.Supp. 12, 17 (D.Minn.1977); Cudnik v. Kreiger, 392 F.Supp. 305, 312 (N.D.Ohio 1974).
The Court takes judicial notice that alcohol and narcotics abuse is a serious problem in the United States. Moreover, the Court recognizes that in deciding whether the Eighth Amendment requires that State prison and health officials allow the establishment of rehabilitation programs, that Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 596 (1958). However, whatever may be our hopes for the standards of the future, the Court cannot at this time hold that failure or refusal to provide opportunities to establish and operate alcoholism rehabilitation facilities in state prisons rises to the magnitude of cruel and unusual punishment. See Smith v. Schneckloth, 414 F.2d 680, 682 (9th Cir. 1969). See also Ladetto v. Commissioner of Correction, ___ Mass.App. ___, ___, 385 N.E.2d 273, 275 (1979); Bresolin v. Morris, 88 Wash.2d 167, 558 P.2d 1350 (1977).
There remains to consider plaintiffs' equal protection and due process claims under the Fifth and Fourteenth Amendments. Plaintiffs assert that the New Jersey ATRA requires that defendants allow the establishment of and provide funds for their proposed alcoholism rehabilitation program, and thus that defendants' refusal to let plaintiffs proceed violates their due process and equal protection rights under the United States Constitution. The Court disagrees with plaintiffs' construction of the ATRA.
The sole reference in the ATRA to penal institutions is at N.J.S.A. 26:2B-13 (Supp.1979), which in relevant part provides:
The department [of health] is hereby authorized, empowered and directed under this act to:
. . . . .
h. Cooperate with the Department of Institutions and Agencies in establishing and conducting a program for the prevention and treatment of alcoholism in penal institutions.
. . . . .
This section of the ATRA has yet to be construed by a New Jersey state court. This Court finds that under no reasonable construction of the provision may it be concluded that the Department of Health and the Department of Institutions and Agencies are required to permit inmates to establish and operate, with the help of State monies, alcoholism prevention and treatment programs in penal institutions. All that the statute by its terms requires is that the two Departments cooperate in establishing and conducting such programs. There is no express mandate to permit or fund inmate-supervised programs, and this Court will not imply such a mandate.
Thus, having concluded that the New Jersey ATRA, N.J.S.A. 26:2B-7 et seq., does not require that the Department of Institutions and Agencies and Department of Health permit and fund the establishment and operation of inmate-sponsored alcoholism *460 rehabilitation programs in state penal institutions, the Court rejects plaintiffs' claim that they have been deprived of their rights to due process and equal protection of the laws.
To summarize, the Court holds that defendant officials' refusal to provide or to allow plaintiffs to provide alcoholism rehabilitation programs at Rahway State Prison violates neither the Fifth, Eighth or Fourteenth Amendment to the United States Constitution nor the New Jersey ATRA. The Court concludes that decisions whether to provide alcoholism treatment to prisoners or to allow prisoners independently to establish and operate treatment programs are best left to the discretion of prison authorities. See generally Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979).
Accordingly, plaintiffs' motions for a temporary restraining order, for an order to show cause and for a preliminary injunction must be and hereby are denied; see Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811, 814 (3d Cir. 1978), and defendants' motion to dismiss for failure to state a claim upon which relief can be granted must be and hereby is granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263732/ | 479 F.Supp. 351 (1979)
METRO-GOLDWYN-MAYER, INC., the Macmillan Company, Inc., Stephens Mitchell and Trust Company Bank as Trustee for Eugene Muse Mitchell and Joseph Reynolds Mitchell, Plaintiffs,
v.
SHOWCASE ATLANTA COOPERATIVE PRODUCTIONS, INC., d/b/a Showcase Cabaret, Plump Bess Productions, Inc., Thomas William Edwards and Kimberley Dobbs, Defendants.
Civ. A. No. C79-1766A.
United States District Court, N. D. Georgia, Atlanta Division.
October 12, 1979.
*352 *353 *354 J. Rodgers Lunsford, III and Julius R. Lunsford, Jr., of Beveridge, DeGrandi, Kline & Lunsford, Paul H. Anderson, Jr., Mitchell, Clarke, Pate, Anderson & Wimberly, Atlanta, Ga., for plaintiffs.
Anthony B. Askew and Eugene S. Zimmer of Jones, Thomas & Askew, James C. Rawls, of Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for defendants.
MEMORANDUM OPINION
EVANS, District Judge.
The present action, involving alleged copyright infringement, claims of unfair competition and alleged violation of the Anti-Dilution Statute and the Uniform Deceptive Trade Practices Act is before the Court on Plaintiffs' Motion for a Preliminary Injunction.
Plaintiffs have various respective rights or interests in Margaret Mitchell's copyrighted novel, Gone With The Wind, and works derived from that novel.[1] Defendants are the respective owners/producers/creators of a musical production entitled "Scarlett Fever", which was originally scheduled to begin public performance in Atlanta on September 21, 1979.[2]
"Scarlett Fever" is a three-hour-long three-act play based on Gone With The Wind (primarily, on the film "Gone With The Wind"). It opens, just as the movie does, with the scene at Tara on the day before the Wilkes' barbecue, with Scarlett talking to the Tarleton twins. It moves in sequence through the major episodes of "Gone With The Wind", though in condensed form and omitting certain scenes, and ends as Rhett leaves Scarlett. Interspersed throughout the various scenes are original songs and dance routines.
Although modern vernacular has been employed in certain scenes in "Scarlett Fever", the script on a scene by scene basis is largely faithful to that of the film. The play also utilizes backdrops depicting scenes reminiscent of the major settings in the film, for example, the plantation house at Tara and the train depot in Atlanta with flames in the background. However, the names of the major characters have been changed so that they are, for example, Shady Charlotte O'Mara, Brett Studler, Melody Hampton, Ansley Mall, and so forth. Further, Shady Charlotte's plantation *355 is dubbed "Tiara"; Ansley's home, Thirteen Elms.[3]
As its name implies, Showcase Cabaret provides "cabaret" entertainment, which is predominantly light, musical entertainment in a fairly intimate setting (approximately 150 to 200 seats). The major characters in "Scarlett Fever" are played by a small cast, with most of the actors portraying more than one role in an intentionally obvious way. On the whole, the production is humorous, entertaining and skillfully performed by the cast.
The central issue presented here is whether "Scarlett Fever", asserted by Defendants to be a spoof or parody of Gone With The Wind, infringes upon Plaintiffs' copyright interests in the novel (and the film) Gone With The Wind. The resolution of this issue primarily lies in a determination of whether Defendants are entitled to invoke the so-called "fair use" defense afforded by 17 U.S.C. § 107, Copyright Act of 1976, which has been a recognized source of protection for such forms of comment upon copyrighted works.
Having viewed "Scarlett Fever" and the film "Gone With The Wind" at the invitation of the litigants, considering the evidence presented at a hearing on October 1, 1979, and having had the benefit of the excellent arguments and briefs of counsel for both sides, the Court concludes that "Scarlett Fever" falls short of entitlement to the fair use defense. In reaching its conclusion, the Court finds that "Scarlett Fever" taken in its entirety is not the sort of original critical comment meant to be protected by the fair use defense, but rather is predominantly a derivative or adaptive use of the copyrighted film and novel Gone With The Wind; additionally, that to the extent the production contains critical comment in the form of parody or satire, Defendants have drawn on the copyrighted work far more extensively than is permissible to "conjure up" the subjects or characters parodied. These issues, together with others, are more fully discussed below.
A. The showing required by Plaintiffs.
In a copyright case, as in all others, a plaintiff seeking preliminary injunctive relief must demonstrate that there is a substantial likelihood of plaintiff's success on the merits at trial, that irreparable injury will be suffered unless the injunction issues, that the threatened injury to the movant outweighs the damage which the injunction may cause the opponent, and that the injunction would not be adverse to the public interest. Dallas Cowboys Cheerleaders v. Scoreboard Posters, 600 F.2d 1184 (5th Cir. 1979). As indicated below, Plaintiffs have very little difficulty in this case making out a prima facie case of copyright infringement. The heart of the case lies in an affirmative defense raised by Defendants, namely that "Scarlett Fever" is saved from copyright infringement by the fair use defense, 17 U.S.C. § 107. On a motion for preliminary injunction, Plaintiffs must demonstrate a likelihood of success on the merits at trial as to asserted affirmative defenses, as well as to the elements of Plaintiffs' prima facie case. See, Canal Authority v. Callaway, 489 F.2d 567 (5th Cir. 1974).
B. Plaintiffs' prima facie case.
In order to obtain injunctive relief for copyright infringement, the movant must show ownership of a valid, existing copyright and copying of the copyrighted material by the defendant. See Uneeda Doll Co. v. Regent Baby Products Corp., 355 F.Supp. 438 (E.D.N.Y.1972); and Walco Products, Inc. v. Kittay & Blitz, Inc., 354 F.Supp. 121 (S.D.N.Y.1972). The parties have stipulated to Plaintiffs' ownership of valid, existing copyrights in the film and novel Gone With The Wind. This automatically establishes that Plaintiffs have the exclusive right to prepare derivative *356 works[4] based on the copyrighted work, 17 U.S.C. § 106(2); and that Plaintiffs are entitled to prevent any unauthorized ". . . musical arrangement, dramatization . . . or any other form in which the work may be recast, transformed or adapted", 17 U.S.C. § 101.
What remains for Plaintiffs to establish a prima facie case is to prove copying by Defendants of the copyrighted material. One method of doing so is to show "substantial similarity" between the copyrighted and the infringing works. See Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978); and Berlin v. E. C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964). When dramatic works are at issue, this method involves more than the mere quantitative analysis of dissecting the two works and matching the similarities and differences. It also requires the intrinsic test of the response of an ordinary reasonable person, a form of qualitative analysis. Sid and Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977). This can be thought of as the "ordinary observation or impression" test. There must appear to be substantial similarity to the ordinary observer, so that the alleged copy comes so near to the original as to give the audience the idea created by the original. Costello v. Loew's, Inc., 159 F.Supp. 782 (D.D.C.1958).
It is clear that there is "substantial similarity" between "Scarlett Fever" and the copyrighted works, especially the film "Gone With The Wind", in both quantitative and qualitative terms. The foundation, materials of locale, settings, characters, situations and relationships are basically the same in "Scarlett Fever", the film "Gone With The Wind" and the novel Gone With The Wind. The other foundation elements of theme and characterization are also very similar, although the treatment of these elements is at times more comical in "Scarlett Fever" than in the film "Gone With The Wind" or in the novel Gone With The Wind. The story line in "Scarlett Fever" is nearly identical to that in the film "Gone With The Wind", although it is somewhat condensed. The dialogue in "Scarlett Fever" is often near-verbatim of the dialogue in the film "Gone With The Wind", though again in a condensed manner and at times inserting modern vernacular in the characters' speech. Not only is a substantial quantity of the film "Gone With The Wind" and the novel Gone With The Wind used in "Scarlett Fever", but the impression that "Scarlett Fever" undoubtedly gives to anyone viewing it or reading the script is that it is a version of Gone With The Wind, invoking in the audience images of the copyrighted works.
The Court notes that Defendants do not deny that "Scarlett Fever" is quantitatively or qualitatively "substantially similar" to the film "Gone With The Wind" or the novel Gone With The Wind. In fact, the Defendants basically agree that "Scarlett Fever" is a comic version of the film "Gone With The Wind" and the novel Gone With The Wind, and argue strongly that the nature of their comedy is parody or satire and therefore protected by the "fair use" defense to copyright infringement, 17 U.S.C. § 107 (limitation on exclusive rights: fair use). Having determined that there is the "substantial similarity" between "Scarlett Fever" and the film "Gone With The Wind" and the novel Gone With The Wind required for a finding of infringement, the Court now turns to the defenses asserted by the Defendants in this case to decide if there is a substantial likelihood of Plaintiffs' success on the merits as to each of the asserted defenses.
C. Defenses raised by Defendants.
1. Fair use
The first and foremost defense asserted by the Defendants in this case is that "Scarlett Fever" is a parody or satire of the film "Gone With The Wind" and the novel Gone With The Wind and therefore protected as a "fair use" under 17 U.S.C. § 107. That *357 provision of the Copyright Act of 1976 states that the "fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research, is not an infringement of copyright." Although the "fair use" provision does not mention parody or satire, many courts have recognized that parody or satire may be protected as "fair use", including the Fifth Circuit. See, Dallas Cowboys Cheerleaders v. Scoreboard Posters, supra; Walt Disney Productions v. Air Pirates, supra; and Berlin v. E. C. Publications, Inc., supra.
In the discussion of the applicability of "fair use" to "Scarlett Fever", the Court first recognizes that the Court is not an expert on literature, drama or comedy, and makes no pretense as to being a dramatic or literary "critic". However, the Court also recognizes that "Scarlett Fever" is to be judged and evaluated on the basis of its overall effect. Counsel for both sides agreed at the hearing on the preliminary injunction that the Court is to look at the work, "Scarlett Fever", as a whole in deciding the threshold question of whether it is a parody or satire before the issue of "fair use" can be addressed. In looking at the play as a whole, the Court finds that "Scarlett Fever" is neither a parody, or a satire. Rather, "Scarlett Fever" is a musical adaptation of the film "Gone With The Wind" and the novel Gone With The Wind, generally in the nature of comedy, with some elements of parody but also with some elements of tragedy or straight drama.
The underlying rationale for applying the "fair use" doctrine to parody and satire is that these art forms involve the type of original critical comment meant to be protected by § 107 of the Copyright Act of 1976. The defendants have put forward the following definition of parody and satire, taken from an opinion in a trademark violation case, Dallas Cowboys Cheerleaders v. Pussycat Cinema, 467 F.Supp. 366 (S.D.N. Y.1979), in which the court discussed the application of "fair use":
A parody is a work in which the language or style of another work is closely imitated or mimicked for comic effect or ridicule. A satire is a work which holds up the vices or shortcomings of an individual or institution to ridicule or derision, usually with an intent to stimulate change; the use of wit, irony or sarcasm for the purpose of exposing and discrediting vice or folly. (at 376)
This Court accepts this definition, with the caveat that in order to constitute the type of parody eligible for fair use protection, parody must do more than merely achieve comic effect.[5] It must also make some critical comment or statement about the original work which reflects the original perspective of the parodistthereby giving the parody social value beyond its entertainment function. Otherwise, any comic use of an existing work would be protected, removing the "fair" aspect of the "fair use" doctrine and negating the underlying purpose of copyright law of protecting original works from unfair exploitation by others.
In applying this view to "Scarlett Fever", it is clear that the play is not a parody or satire, although it contains some such elements, because the work as a whole is not a critical commentary on either the film or the novel Gone With The Wind. Therefore, "Scarlett Fever" is not protected by the "fair use" doctrine, although the Court does recognize that the songs in "Scarlett Fever" appear to be original and therefore may be protected and not an infringement of Plaintiffs' copyrights. It is the inconsistent use of parody and satire in "Scarlett Fever" that deprives the play of the overall effect or impression of parody or satire, as shown by the following examples. Perhaps the best example of consistent satire in "Scarlett Fever" is the character Melodie, through which the playwright critically comments upon the gentle ("insipid") nature of the character of Melanie ("Melodie"). Similarly, Chaz Hampton is a satiric *358 character (described as being "like a suckling pig"). The name of the play and the names of some of the characters are satiric. An example of the inconsistent use of satire is the character of Charlotte, based on the central character Scarlett O'Hara. At times Charlotte comically exaggerates traits of Scarlett, thereby critically commenting upon them, while at other times Charlotte is treated strictly comically (no comment on the character of Scarlett, just for laughs) or very dramatically, thereby denying an overall impression of satire.
The characters of Mammy and Sissy (the latter being the counterpart of Prissy, the character played in the film "Gone With The Wind" by Butterfly McQueen) in "Scarlett Fever", although comical, are examples of imitating what was a comical characterization, or comic relief, in the film "Gone With The Wind" and therefore involve no comment upon the original characters. The character "Aunt Kitty Kat" is an example of a character varied from the original, but not in a manner which reflects comment on the original character Aunt Pitty Pat, who may be recalled from the film "Gone With The Wind" as a highly nervous but lovable old maid possessing corkscrew curls, lace handkerchiefs and continually fluttering hands definitely a comic relief character. Aunt Kitty Kat in the play incorporates the basic features of Aunt Pitty Pat; the original touch is that she is played by a male actor, whose purposely ill-concealed male identity is not parody or satire but rather pure comedy.
There are also several highly serious or dramatic sequences in "Scarlett Fever"[6] perhaps the most lengthy of which is the return to Tiara in Act II involving Charlotte's contact with her insane father and learning of her mother's death and the ruin of her home by the Yankees. Further, the character Brett Studler did not appear to add any new dimension or comment on the original character Rhett Butler, but rather seemed to be a non-comic imitation.
Even if "Scarlett Fever" was a parody or satire in its overall effect, the Court finds that the play is still not protected by "fair use" because "Scarlett Fever" incorporates more material from the film "Gone With The Wind" and the novel Gone With The Wind than "fair use" allows. The four factors or guidelines enumerated by 17 U.S.C. § 107 to be "considered" in determining whether "fair use" applies are the following:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. (17 U.S.C. § 107)
The first factor, the purpose and character of the use, is assumed to be parody or satire, which is generally a recognized "fair use". The second factor, the nature of the copyrighted work, is a novel and a film and any derivative uses of such works, including any non-parodic or non-satirical form of theatrical production. The other two factors, the amount and substantiality of the portion used and the effect upon the Plaintiffs' potential market, are more significant and are really the factors at issue once the assumption of parody or satire is made.
Several cases from the Second and Ninth Circuits have developed rules to be applied when analyzing the amount and substantiality of the original work used in the alleged infringing work. There is a threshold test, the so-called Benny test, which holds that exact or "near-verbatim" copying of a copyrighted work prevents application of a "fair use" defense, even if the infringing work is a parody or satire. This test arose in Benny v. Loew's Incorporated, 239 *359 F.2d 532 (9th Cir. 1956), aff'd by an equally divided court, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958), in which the Ninth Circuit said:
The fact that a serious dramatic work is copied practically verbatim, and then presented with actors walking on their hands or with other grotesqueries, does not avoid infringement of the copyright. (at 536)
Although the court in Benny referred to substantial similarity in applying this test, it is recognized that the court intended "near-verbatim" to be the standard. See Walt Disney Productions v. Air Pirates, supra. Otherwise, the test for finding infringement and the test for disallowing "fair use" would be the same, effectively eliminating the "fair use" standard. Although there is "near-verbatim" copying by "Scarlett Fever" of the dialogue and other elements of the film "Gone With The Wind", there is enough originality in "Scarlett Fever", particularly the songs, so that it passes the Benny test, albeit barely.
However, "Scarlett Fever" incorporates much more of "Gone With The Wind" than is necessary to "recall or conjure up" the original works and therefore no "fair use" applies. The "recall or conjure up" test was fully articulated by the Second Circuit in Berlin v. E. C. Publications, Inc., supra, and more recently applied by the Ninth Circuit in Air Pirates. In Berlin, the court devised this test from two earlier district court cases from California, Loew's, Inc. v. Columbia Broadcasting System, 131 F.Supp. 165 (S.D.Cal.1955) (the Benny case) and Columbia Pictures Corp. v. National Broadcasting Co., 137 F.Supp. 348 (S.D.Cal.1955) (the "From Here to Obscurity" case), both decided by Judge Carter. In discussing the rationale of those two cases, the court in Berlin said:
. . . in both, it [the district court] conceded that the parodist must be permitted sufficient latitude to cause his reader or viewer to "recall or conjure up" the original work if the parody is to be successful. But in Benny's case, the Court concluded, this license had been grossly exceeded. Not only had the parody followed the general plot of the original motion picture, but specific incidents and details had been copied and extensive portions of the dialogue had been reproduced verbatim. It was this borrowing from the original to a far greater degree than that required if the parody is to "recall or conjure up" that original, which caused the court to reject the defense of "burlesque" . . . (at 544)
In holding that there was "fair use" in Berlin, the court found
The disparities in theme, content and style between the original lyrics and the alleged infringements could hardly be greater . . . While brief phrases of the original lyrics were occasionally injected into the parodies, this practice would seem necessary if the defendants' efforts were to "recall or conjure up" the originals . . . (at 545)
"Scarlett Fever" clearly fails the test developed by the court in Berlin. "Scarlett Fever" closely follows the general plot of the film "Gone With The Wind", copies specific incidents and details extensively, and reproduces significant portions of the dialogue in a nearly identical manner. Furthermore, the disparities in theme, content, and style between the works, where they do exist, are not very significant. Also, much more than "brief phrases" of the original works are more than "occasionally injected" into "Scarlett Fever". Given the fact that the characters, plot, and dialogue of Gone With The Wind are well-known to the public, it appears that such extensive copying of the original works was not necessary to "conjure up" or "recall".
Defendants argue that such an extensive incorporation of material from Gone With The Wind is not only justified but required under the test of "recall or conjure up" as applied in Air Pirates, supra. This Court finds that such an interpretation of Air Pirates is in error.
In Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), the court recognized the Benny test as a threshold test eliminating near-verbatim copying but *360 chose not to apply it because the court felt that the defendants took more than allowed by the Berlin test with regard to both the conceptual and physical aspects of the copyrighted cartoon characters. In applying the Berlin test, the court in Air Pirates stated:
In evaluating how much of a taking was necessary to recall or conjure up the original, it is first important to recognize that given the widespread public recognition of the major characters involved here, such as Mickey Mouse and Donald Duck, in comparison with other characters very little would have been necessary to place Mickey Mouse and his image in the minds of the readers. (at 757-58)
That court also found it significant that the infringing parody focused on the personalities of the characters and not merely their physical appearances. In discussing this factor, the court (in dicta relied upon by Defendants herein for their theory of a "close parallel" requirement) said
Thus arguably defendants' copying could have been justified as necessary more easily if they had paralleled closely (with a few significant twists) Disney characters and their actions in a manner that conjured up the particular elements of the innocence of the characters that were to be satirized. While greater license may be necessary under those circumstances, here the copying of the graphic image appears to have no other purpose than to track Disney's work as closely as possible. (at 758) (Emphasis supplied)
The meaning of the "close parallel" language in Air Pirates is not at all clear, and such language is neither binding nor persuasive in the present case. If a parody or satire is to warrant "fair use" protection, then it should parody that part of the original work which it copies. Therefore, if a parody or satire "closely parallels" an entire original work, it should parody at least a majority of those parts or elements of the original work which it parallels. "Scarlett Fever" failed to parody or satirize even a significant portion of the elements of Gone With The Wind which it parallels.
This Court has found that even if "Scarlett Fever" was assumed to be a parody or satire, it clearly incorporates more material from the original works than is allowed under the third factor of Section 107 and the Berlin test and therefore "fair use" does not apply. However, the Court feels that its analysis would be incomplete without addressing the fourth factor, which is the effect of the use upon the potential market for or value of the copyrighted work. The Defendants in this case have argued that "Scarlett Fever" will not harm the existing or potential markets for either the film "Gone With The Wind" or the novel Gone With The Wind, but is more likely to enhance the demand for those works. Defendants have also claimed that a prior authorized stage version of Gone With The Wind was a failure and that no authorized stage production is planned for the immediate future, and therefore "Scarlett Fever" does not harm the existing or potential market for such a derivative use of the original works. The Court does not agree with this analysis and finds that "Scarlett Fever" is likely to harm the potential market for or value of the derivative use of Gone With The Wind in the form of a theatrical adaptation.
The Court first recognizes that a non-parodic or non-satiric stage version of Gone With The Wind is a protected derivative use of the original works which only the holders of the valid, existing copyrights in such works have a right to exploit. Harm to the potential market for or value of such a derivative use is more difficult to specify than it is to conceptualize. Defendants argue that since a previous authorized stage version of Gone With The Wind was a failure, no future productions are likely to be attempted by local producers, and therefore "Scarlett Fever" can in no way harm the potential market for or value of a future production since no such market or value exists. This logic is persuasive only if the Court assumes that any future production of Gone With The Wind would be the same as or very similar to the past failure. This would be an unreasonable assumption to make, especially in light of the highly *361 positive audience response to the production of "Scarlett Fever" viewed by the Court. The potential for success of "Scarlett Fever" indicates that a future stage production of Gone With The Wind superior to the earlier failure is likely to succeed and therefore "Scarlett Fever" could harm a potential market for or value of a stage version of Gone With The Wind.
The Court acknowledges that this type of analysis is speculative, but that is inherent in the nature of a "potential" market for a future derivative use. This analysis is aided by what Nimmer calls the "functional test". He states that in determining the effect of the Defendants' use upon the potential market for or value of the Plaintiffs' work, a comparison must be made not merely of the media in which the two works may appear, but rather in terms of the function of each such work regardless of media. 3 Nimmer, The Law of Copyright § 13.05[B]. Nimmer describes this test as follows:
If both the plaintiff's and defendant's works are used for the same purpose, then under the functional test the defense of fair use should not be available since the defendant's work serves the same function as that of the plaintiff's. (citations omitted)
The scope of fair use is then constricted where the two works in issue fulfill the same function in terms of actual or potential consumer demand, and expanded where such functions differ. (citations omitted) (at 13-57 and 13-58)
It can be said that the overall function of both the film "Gone With The Wind" and the novel Gone With The Wind is to entertain. The overall function of "Scarlett Fever" is also to entertain. Having found that "Scarlett Fever" is not a parody or satire, its overall function is not criticism, comment, reporting or teaching. Using the "functional test", "fair use" cannot be applied to "Scarlett Fever" because its function is identical to the functions of the film "Gone With The Wind" and the novel Gone With The Wind and any potential derivative use of Gone With The Wind as a stage adaptation. As Nimmer notes, similarity of medium is not relevant to application of the functional test. As to Defendants' claim that a prior failure of an authorized stage production destroys the potential market for and value of another authorized production, Nimmer's comments concerning Meeropol v. Nizer, 361 F.Supp. 1063 (S.D.N.Y. 1973) seem appropriate:
The Meeropol court was further moved by the fact that plaintiffs' copyrighted work containing such letters had been out of print for almost 20 years. The fact that a work is out-of-print surely cannot mean that the copyright therein is vitiated. Works out of print are published in new editions when the demand becomes sufficient. Such demand may never arise if competitors may freely copy the out-of-print work. (n. 51, at 13-57)
In summing up the foregoing discussion of "fair use", the Court holds that "Scarlett Fever" is neither a parody nor a satire with respect to "fair use" protection, and further holds that even if "Scarlett Fever" was a parody or satire, "Scarlett Fever" would not be protected by "fair use" because it copies more of "Gone With The Wind" than is allowed by the Berlin test. Also, "Scarlett Fever" does not warrant "fair use" protection because it has the same function as "Gone With The Wind" under the "functional test" and therefore is likely to harm the potential market for or value of the copyrighted work.
2. Other Defenses.
Defendants also argue that "Scarlett Fever" is protected by a First Amendment privilege even if it is found not to be a "fair use", relying upon Triangle Publications v. Knight-Ridder Newspapers, 445 F.Supp. 875 (S.D.Fla.1978). There, the publisher of "TV Guide" sought an injunction to prevent a newspaper from displaying "TV Guide" in a "comparative" advertisement placed by a competitor. The District Court held that although "fair use" did not protect defendant's copying, the First Amendment did allow depiction of "TV Guide" in the ad and that when the First Amendment and the *362 Copyright Act operate at cross-purposes, the Free Speech Guarantee of the First Amendment takes precedence.
Even if Triangle has implications as broad as the holding would indicate, it still has no relevance to the present case in light of the finding made above that "Scarlett Fever" is not a parody or satire. Thus, it does not constitute the sort of critical comment which might draw First Amendment protection of the fair use defense into play.
Finally, Defendants assert that Plaintiffs have either abandoned, or are estopped to assert, any copyright protection against parodies or satires of Gone With The Wind, citing certain other spoofs of Gone With The Wind as to which no legal action was taken by Plaintiffs. Of course, this defense is foreclosed by the Court's finding that "Scarlett Fever" is not predominately a satire or parody. But additionally, it should be noted that abandonment can only be shown by proving that the copyright owner intended to surrender his rights. Imperial Homes Corp. v. Lamont, 458 F.2d 895 (5th Cir. 1972). Estoppel requires both intent and knowledge on the part of the one to be estopped, plus the other party's right to rely. Hampton v. Paramount Pictures Corp., 279 F.2d 100 (9th Cir. 1960). No evidence was presented which would indicate the existence of Plaintiffs' intent to abandon, or any conduct of Plaintiffs which might furnish the basis for justifiable reliance by Defendants.
Based upon the foregoing, the Court holds that Plaintiffs have established a substantial likelihood of success on the merits.
D. Irreparable injury to Plaintiffs.
The final element necessary for the Court to be empowered to issue a preliminary injunction is a finding that unless the injunction issues, Plaintiffs will be irreparably injured, and that the extent of their damage would be greater than that which might otherwise accrue to Defendants should the injunction issue. In the instant case, Plaintiffs presented credible evidence that the stage rights to Gone With The Wind have significant value. Plaintiffs also presented testimony that the value of the stage rights would be severely diminished if "Scarlett Fever" was allowed to continue. Defendants countered to this point basically to the effect that Defendants' operation is on such a small scale, and will play to such a small audience, that the performance of "Scarlett Fever" could not make a material dent in the value of Plaintiffs' interests. Further, Defendants argued that Plaintiffs' failure to effectively develop or utilize the stage rights to Gone With The Wind in the continental United States to date reflects that such rights have insubstantial value. The Court accepts neither of these seemingly contradictory positions in its entirety. Rather, while recognizing that the extent of damage caused by copyright infringement is most difficult to quantify, the Court finds that Plaintiffs' testimony sufficiently showed that continued performance of "Scarlett Fever" would have some adverse effect on Plaintiffs' copyright interests, particularly on the value of the stage rights. Further, that damage could become severe, should a musical comedy version of "Gone With The Wind" such as "Scarlett Fever" or similar to "Scarlett Fever" be allowed to run in other locales or on an extended basis.
Furthermore, a presumption of irreparable injury exists for the purpose of a preliminary injunction determination once Plaintiff has made out a case of copyright infringement. Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978); Uneeda Doll Co. v. Regent Baby Products Corp., 355 F.Supp. 438 (E.D.N.Y.1972); Robert Stigwood Group Ltd. v. Sperber, 457 F.2d 50, 55 (2d Cir. 1972); Rice v. American Program Bureau, 446 F.2d 685, 688 (2d Cir. 1971). In the instant case, this presumption has not been rebutted by Defendants; additionally, as noted, Plaintiffs have introduced evidence of damage which the Court credits.
*363 E. Conclusion.
Based on the findings contained within the foregoing Memorandum Opinion, and the conclusion of law that Defendants' production "Scarlett Fever" infringes upon Plaintiffs' copyrights and interests protected by said copyrights, Plaintiffs' Motion for a Preliminary Injunction is hereby GRANTED and pending trial on the merits, Defendants are hereby enjoined from further production of "Scarlett Fever".[7]
NOTES
[1] Metro-Goldwyn-Mayer, Inc. owns the screen rights and copyright for the film, "Gone With The Wind"; The Macmillan Company, Inc. is the holder of the copyright for the novel Gone With The Wind; Stephens Mitchell and Trust Company Bank in their capacity as Trustees for certain heirs of Margaret Mitchell own certain residual interests in the copyrighted works and derivatives thereof, including the stage rights.
[2] The dress rehearsal of "Scarlett Fever" on September 18, 1979 was attended by attorneys for the Mitchell interests. The Complaint herein was filed on the morning of September 21, 1979, at which time a temporary restraining order issued.
[3] In the original works the equivalents are, of course, Scarlett O'Hara, Rhett Butler, Melanie Hamilton, Ashley Wilkes, Tara, Twelve Oaks.
[4] Also referred to as the adaptation right, see Nimmer, The Law of Copyright. § 8.09 (1978).
[5] That would be doubly true when the parodied portions of the original work are themselves comic.
[6] The dress rehearsal version of "Scarlett Fever" as viewed by Plaintiffs' representatives contained several additional serious dramatic scenes not contained in the version viewed by the Court. The findings contained in this Order are based upon the latter version, although the scripts of both versions are contained in the record herein.
[7] In view of the Court's action, it is deemed unnecessary to make findings on Plaintiffs' claims under the Lanham Act, Uniform Anti-Dilution Act, Uniform Deceptive Trade Practices Act, and for unfair competition. Moreover, the Court is not certain that the parties' oral prehearing stipulation regarding the issues to be heard actually included non-copyright issues. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263735/ | 479 F.Supp. 164 (1979)
NEIL AND SPENCER HOLDINGS LIMITED, Plaintiff,
v.
KLEEN-RITE, INC., Defendant.
No. 79-667-C(3).
United States District Court, E. D. Missouri, E. D.
September 6, 1979.
*165 Ralph W. Kalish, Peter S. Gilster, St. Louis, Mo., for plaintiff.
Lionel L. Lucchesi, Polster, Polster & Lucchesi, St. Louis, Mo., for defendant.
MEMORANDUM
FILIPPINE, District Judge.
This matter is before the Court on plaintiff's prayer for a preliminary injunction in its diversity action against defendant for unfair competition, breach of contract, violation of a confidential relationship, and fraud. A five-day hearing was held in open court on plaintiff's request for preliminary injunctive relief. Plaintiff's motion for a temporary restraining order has been denied by this Court.
FINDINGS OF FACT
1. Plaintiff, Neil and Spencer Holdings Limited (hereinafter Neil and Spencer), is a corporation organized and existing under the laws of the United Kingdom and has its principal office and place of business at Station Road, Leatherhead, Surrey, England.
2. Defendant, Kleen-Rite, Inc. (hereinafter Kleen-Rite), is a corporation organized and existing under the laws of the State of *166 Wisconsin and has its principal office and place of business at 4444 Gustine Avenue, St. Louis, Missouri.
3. Both plaintiff Neil and Spencer and defendant Kleen-Rite are engaged in the manufacture and sale of a variety of dry cleaning equipment.
4. Plaintiff's exclusive manufacturer's agent in the United States is Spencer America Manufacturers, Inc. (hereinafter Spencer America), a New York corporation. Spencer America also represents manufacturers other than plaintiff. Since March, 1978, Spencer America's offices and place of business have been in St. Louis, Missouri.
5. Plaintiff holds a majority interest in Spencer America.
6. Plaintiff and defendant have had a business relationship since 1974, when they entered into a secrecy agreement concerning technical information, relating to a solvent filtration system, which defendant was to provide plaintiff. Defendant subsequently licensed plaintiff to manufacture the filtration equipment.
7. On April 30, 1974, U.S. Patent 3,807,948 was granted to plaintiff on a refrigerated solvent recovery system for use with dry cleaning machines; application had been made for the U.S. patent in 1972 and for British patents in 1971.
8. In 1976, an apparatus of the type described in the patent was put on exhibit by plaintiff at a trade fair in Birmingham, England. John Wolfe, who was then and until May 24, 1979, an officer and director of defendant, saw and took an interest in the apparatus, called a Resolver. At the same trade fair, Robert Smith, also an officer of defendant, talked with a representative of the German company Citex about a solvent reclaimer which Citex was developing.
9. After preliminary contacts, plaintiff and defendant entered into a "Secrecy Agreement" dated November 3, 1977. Under the Agreement, plaintiff was to provide certain manufacturing and cost data to defendant to enable defendant to determine whether it would be feasible to manufacture the Resolver in the United States under license from plaintiff. The Agreement bound defendant to handle "in a strictly confidential manner all the technical information" to be supplied. It also bound defendant to use the information only for the purpose stated.
10. The Agreement was signed for defendant by John Wolfe and for plaintiff by Stephen Proctor, plaintiff's Managing Director.
11. The Agreement nowhere described the Resolver apparatus itself as secret or confidential, nor did it prohibit the defendant from showing the Resolver to third parties.
12. After February or March, 1977, and prior to November, 1977, plaintiff had sold 20 to 50 Resolvers in England, and had sold one Resolver, to a party other than defendant, in the United States.
13. By letter dated November 3, 1977, defendant entered its order to plaintiff for two Resolver units. Defendant paid $4,696.00, which was plaintiff's cost, for both units. The Resolvers arrived in defendant's St. Louis office in March, 1978. Defendant installed one at a St. Louis area cleaners the same month for testing purposes.
14. From time to time during the period from November, 1977, to June, 1978, plaintiff did provide defendant with information consisting of sets of drawings and manufacturing specifications, wiring diagrams, and cost data on the Resolver. Plaintiff also responded to specific inquiries from defendant about the operation of the apparatus.
15. Subsequent to the delivery of the two Neil and Spencer Resolver units to defendant in St. Louis, Kleen-Rite undertook an evaluation of the units and their potential market in the United States. Kleen-Rite's initial analysis indicated that the Resolvers were not, as manufactured by Neil and Spencer, suitable for use by United States dry cleaners.
16. A key feature of the Resolver unit is the use of a bed of rock chips, in which the coils of a refrigeration system are embedded. *167 The operation of the Resolver involves one period during which heat is removed from the rocks through the cooling coil, and another period during which heated solvent-laden air is circulated through the rock bed for the purpose of condensing the solvent.
17. Among the items of information which plaintiff conveyed to defendant was the fact that Neil and Spencer had experimented with a standard, finned refrigeration coil as the heat exchange medium, but that the finned coil iced up during operation and was not economical.
18. The unit installed by defendant in the St. Louis area cleaners malfunctioned in April, 1978, and John Wolfe called Air Masters Corporation, an air conditioning service, to request that a serviceman be sent to repair the unit. Clifford Schaefer was sent in response to Mr. Wolfe's request. He repaired several leaks and corrected the pressure setting on the unit.
19. Mr. Schaefer was called on two other occasions, later in April, to repair the unit. He was told on the first of these occasions that it was necessary to maintain a temperature of -20° C in the coils. He again determined that the prescribed pressure settings were too low. On hearing that the rock bed made the Resolver undesirably heavy, he suggested that an A-frame unit could be designed to provide the same function as that of the Resolver.
20. Mr. Schaefer was engaged by Mr. Wolfe to design and construct a unit which would work well with American dry cleaning machines and which would retail in the $2,000-$2,500 range to be competitive with the Hoyt "Sniff-O-Miser," which retails for $2,300-$2,700. Mr. Schaefer proceeded on the basis of his observation and measurement of the Resolver components, his experience with air conditioning equipment, his conversations with an independent chemist about the solvent perchloroethylene ("perc"), and by trial and error. He was not shown any of plaintiff's drawings or given any other confidential information.
21. Mr. Schaefer used only conventional refrigeration design and shop knowledge in designing the unit for Kleen-Rite. Only standard, "off-the-shelf" components were used in its construction.
22. Mr. Schaefer provided certain dimensions to Robert Smith, who built a cabinet for the components specified by Mr. Schaefer. In about May, 1978, Mr. Schaefer constructed one unit in his spare time in four weeks at defendant's plant and a second unit later at his home. Also in May, Mr. Wolfe reported to Mr. Smith that the Citex Company had informed him that -6° F (-20° C) was the optimum coil temperature for "perc" condensation.
23. The differences between the Vapor Condenser, designed by Mr. Schaefer, and plaintiff's Resolver, include the Vapor Condenser's use of two A-frame aluminum coils rather than a Monel coil embedded in rock chips, the use of a different refrigerant, and the use of 1½ h. p. rather than ¾ h. p.
24. In August, 1978, defendant notified plaintiff, in response to plaintiff's inquiry, that it was not then interested in manufacturing the Resolver in the United States, due to a fall in the price of the solvent "perc".
25. In October, 1978, however, defendant expressed renewed interest to plaintiff; the terms of a proposed licensing agreement were set forth at a meeting on November 29, 1978, in England, between John Wolfe and Stephen Proctor. The proposal was embodied in a document drawn up by plaintiff and dated December 4, 1978.
26. The proposal provided that Kleen-Rite would have "exclusive rights" for five years to manufacture and sell the Resolver in the United States and Canada. However, the proposal also included a reservation by Neil and Spencer of the right to sell Resolvers through Spencer America. The royalties contemplated in the proposal were the following: Year 1 8% of sales, Year 2 6%, and Years 3-5, 4½%. There was also a stated minimum royalty. Kleen-Rite was reluctant to sign the agreement immediately because half of the first year's minimum royalty was to be paid on signing.
27. The proposed licensing agreement remained unsigned.
*168 28. On January 2, 1979, the Environmental Protection Agency released a set of proposed rules relating to the emissions of hydro-carbons from dry cleaning establishments. These proposed rules suggested that the use of solvent recovery equipment might be required of dry cleaning establishments.
29. In February, 1979, Spencer America began to take orders for the Resolver in America; plaintiff began to ship Resolvers from the United Kingdom to the United States to fill the orders.
30. On March 14, 1979, Neil and Spencer informed Kleen-Rite that the proposal of December 4, 1978 was withdrawn. Neil and Spencer did indicate, however, that the matter could be reopened if Kleen-Rite still had any interest in the Resolver.
31. On March 14, 1979, Kleen-Rite sent a telex to Neil and Spencer expressing Kleen-Rite's continuing interest in a license from Neil and Spencer.
32. Subsequent negotiations for a license were handled for plaintiff by John Sasina, who had left the employ of Kleen-Rite/Arundale, Inc., as defendant was then known, in July, 1977, and who had become President of Spencer America in January, 1978.
33. On March 27, 1979, Kleen-Rite indicated in a letter to John Sasina that it would accept all the provisions of the December 4, 1978 proposal, including the royalty provisions, except for: the description of the license as "exclusive", the minimum royalty provisions, and the requirement that Kleen-Rite defend plaintiff's United States patent against infringement.
34. By a letter dated March 29, 1978, Mr. Sasina indicated Neil and Spencer's willingness to negotiate for a new license proposal which would reflect "the dramatically changing marketing factors for the Resolver product line". At a meeting on April 11, 1979, Mr. Sasina proposed a royalty rate of 15% of distributor price.
35. Defendant announced its solvent recovery system, the Vapor Condenser, to its distributors on April 26, 1979.
36. By a letter dated April 27, 1979, John Sasina indicated to defendant that a 12% royalty rate with no minimum might be acceptable.
37. Defendant's Vapor Condenser retails from $2,995, depending on the model, and plaintiff's Resolver retails in the United States for $4,500-$5,100, depending on the model.
38. Plaintiff observed normal security measures with respect to the development of the Resolver; access was restricted to authorized personnel.
CONCLUSIONS OF LAW
This matter is within the Court's jurisdiction by virtue of Title 28 U.S.C. § 1332.
The Court of Appeals for the Eighth Circuit has recently indicated that, on some occasions at least, the proper standard to apply in ruling on a motion for a preliminary injunction is that which has been used traditionally in the Second Circuit. Fennell v. Butler, 570 F.2d 263 (8th Cir. 1978); Dakota Wholesale Liquor, Inc. v. Minnesota, 584 F.2d 847 (8th Cir. 1978). However, in Young v. Harris, 599 F.2d 870 (8th Cir. 1979) a three-judge panel noted that since the Eighth Circuit had not yet acted en banc to modify the traditional test, the panel would express no opinion on which test was proper in the case before it. Id. at 876. The court in Young upheld the district court's ruling on either test.
The traditional requirements for the availability of a preliminary injunction in the Eighth Circuit are paired with a less stringent, alternative test in the Second Circuit's formulation:
(A) preliminary injunction should issue only upon a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.
Young v. Harris, supra, at 875-876, [quoting Sonesta Int'l Hotels Corp. v. Wellington *169 Assocs., 483 F.2d 247, 250 (2d Cir. 1973)]. The Court finds that under either test, a preliminary injunction must be denied in the case at bar.
Denial of preliminary relief in the instant case is most obviously required by the plaintiff's failure to meet the second branch of either of the Second Circuit's tests. No reason appears why damages could not make Neil and Spencer whole. Spencer America, which is not the plaintiff in this action, may suffer injury due to its loss of revenues from the diminishment of its sales of Resolvers; this loss to Spencer America may remain uncompensated, but the plaintiff itself could be compensated entirely for any interim losses. The Second Circuit has held that the dampening of sales allegedly resulting from competition in violation of an exclusive licensing agreement is not the kind of injury which justifies the grant of preliminary injunctive relief. Foundry Services v. Beneflux Corporation, 206 F.2d 214 (2d Cir. 1953).
Similarly, it is not apparent that the balance of hardships tips "decidedly" toward Neil and Spencer. Neil and Spencer and Kleen-Rite are roughly equally situated with respect to the introduction of their units on the American market. Neil and Spencer, which has annual sales of $18-20 million, would presumably be less damaged by loss of Resolver royalties than Kleen-Rite, with annual sales of approximately $2 million, would be damaged by loss of profits from its Vapor Condensers.
This action is governed by the law of Missouri. Defendant has its principal place of business in the State; the Resolvers and technical information were shipped to defendant in St. Louis; and the alleged wrong, the development by defendant of its Vapor Condenser, occurred in Missouri. Missouri has a more significant relation with the events in dispute than does any other State.
We consider first the plaintiff's counts of unfair competition and breach of confidential relationship. Both are comprehended within the Restatement provision which has had widespread application in trade secret cases, section 757. The Restatement offers general Comments in an effort to describe a trade secret but it acknowledges that an exact definition is not possible.
b. Definition of trade secret. A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers . . .
Secrecy. The subject matter of a trade secret must be secret. Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret. Matters which are completely disclosed by the goods which one markets cannot be his secret . . . [A] substantial element of secrecy must exist, so that, except by the use of improper means, there would be difficulty in acquiring the information. An exact definition of a trade secret is not possible. Some factors to be considered in determining whether given information is one's trade secret are: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
Restatement of Torts, § 757, Comment b.
We turn to recent Missouri cases for the Missouri courts' interpretation of trade secret law. In Reddi-Wip, Inc. v. Lemay Valve Company, 354 S.W.2d 913 (Mo.App. 1962) the elements of the cause of action for breach of confidence through misappropriation of trade secrets were described as the following: "(1) the existence of a trade *170 secret, (2) communicated to the defendant, (3) while he was in a position of trust and confidence, and (4) use by the defendant to the injury of the plaintiff." Id. at 917. The court, focusing its attention on the first element, held that since plaintiff's valve designs had been revealed in two patents issued five and two years, respectively, before the defendant, organized by one of plaintiff's former employees, began to market its own valves, there were no protectible trade secrets. Moreover, the court noted, the confidential relationship had ended in July, 1954 at the latest, and defendant did not begin development of its valves until 1956, nor did the defendant market its valves until May, 1957. The court reversed the trial court's decree enjoining the defendants from manufacturing all valves similar to those described in plaintiff's patents.
The Missouri Supreme Court dealt with the law of trade secrets in National Rejectors, Inc. v. Trieman, 409 S.W.2d 1, 152 U.S.P.Q. 120 (Mo.1966). That case involved a group of employees who had, while in plaintiff's employ, entered into a written agreement to form a new corporation to compete with plaintiff's manufacturing business. They had also set up a shop for copying the plaintiff's slug rejectors and coin changers. Plaintiff sued its former employees, alleging misappropriation of trade secrets. The alleged trade secrets included the physical features, such as dimensions and materials, of the parts of the devices, and the "trial and error" and experimentation that had gone into the development of the devices. The plaintiff disclaimed, however, a protectible interest in any of the information revealed in its patents or in the mountings which accompanied the machines, and it acknowledged that its devices could be measured by one skilled in measurement.
The Missouri Supreme Court observed that under the Restatement definition of trade secret, the fact that National had engaged in extensive experimentation prior to producing its devices was only one factor to be considered in determining whether National had trade secrets. The Court found that some of the alleged trade secrets were obvious in the finished products, and others were revealed in the mountings and in the production drawings which National sent to many of its customers on their request. Therefore, the Court held that there were no trade secrets involved.
The Court in National Rejectors did find that there had been a misuse of some of plaintiff's mainplates and blueprints, which had been brought to defendant's shop. However, the Court observed that none of defendant's drawings had been shown to be the result of "systematic copying" of plaintiff's drawings. Since the Court could not preclude the possibility that some dimensions had been taken directly from the plaintiff's drawings, it ordered that on remand, evidence was to be taken which would establish the profits plaintiff had lost through defendant's accelerated entry into the market.
In a more recent Missouri Supreme Court decision, Carboline Co. v. Jarboe, 454 S.W.2d 540, 165 U.S.P.Q. 521 (Mo.1970), the Court enunciated stringent standards for recovery in the field of trade secrets, especially with respect to proof of the element of use of the confidential information. In Carboline, the defendant employed a chemist who had worked for plaintiff for five years and who had, in the course of his earlier employment, signed a Secrecy Agreement regarding processes and methods he might become familiar with while in plaintiff's employ. Plaintiff charged that the defendant had misappropriated this confidential information by using it, through the chemist, to develop its own products.
The proof, with respect to many of the products, was characterized by the court as "circumstantial"; it included the chemist's earlier access to plaintiff's lab data, the relative speeds with which plaintiff and defendant had developed the products, and the similarity of the products. Id. 454 S.W.2d 540, 165 U.S.P.Q. at 524. The court held that, although the evidence showed that plaintiff did have trade secrets to *171 which the chemist had access, the burden of proof was on the plaintiff to show that the defendant had actually used the secrets acquired by the chemist in its own products. The proof had to be such as to establish identity of chemical formulae. Id. 454 S.W.2d 540, 165 U.S.P.Q. at 527-28. The court noted that this was especially necessary in view of the fact that defendant's president was himself an experienced chemist; it noted that the defendant should not be prevented from using its own "properly developed business".
This Court has reviewed the above cases carefully because the facts of the instant case do not admit of easy classification. There is authority for the proposition that the confidential information to be protected through an action for breach of a confidential relationship need not rise to the level of a trade secret. Restatement of Torts, § 757, Comment b; Sandlin v. Johnson, 152 F.2d 8, 11 (8th Cir. 1945); National Rejectors, Inc. v. Trieman, supra. Therefore this Court has based its decision on its conclusions that much of the technical information conveyed by plaintiff cannot be regarded as trade secrets, and, that plaintiffs are not likely to succeed in showing, under the stringent standards of Carboline Co. v. Jarboe, supra, that defendant's Vapor Condenser incorporates any trade secrets or other confidential information from plaintiff.
Turning to the items of information which plaintiff has provided defendant in this case, we note that many of them were items which, according to the testimony of plaintiff's expert witness, Dr. Swanson, on cross-examination, could be obtained by examination and measurement of the Resolver itself: the size and shape of the coils, the temperature of the stone bed, the air flow through the machine, the disposition of the solvent recovery tank and separator, information about the compressor unit, and the temperature of the incoming and outgoing air. In addition, the following items were disclosed in the plaintiff's United States patent: alternative systems of air flows, the coil temperature of -20° C which was required for the condensation of "perc", the by-passing of the steam coil by the return air path, information about the finned coil approach, and certain principles of the deodorizing cycle.
Dr. Swanson also testified on cross-examination that certain of the other items of information related to the dry cleaning equipment with which a Resolver was combined. These included the expected solvent recovery rates, and heat control in the dry cleaning tumbler. The method for determining the optimum drying time before beginning deodorization is discussed in the operating manual which accompanies the Resolvers.
With regard to the above items, the Court finds that since they were embodied in the Resolver itself, or contained in the patent or operating manual, the plaintiff has not established their status as trade secrets. The fact that plaintiff may have engaged in lengthy experimentation and research to produce the final product is not sufficient to shield the information with such status. Nor is the fact that some effort would be necessary to uncover the information determinative. The dimensions of the component parts, which were held not to be trade secrets in National Rejectors, Inc. v. Trieman, supra, were obtainable from the finished product only with some effort by one skilled in measurement.
Of the items of information remaining to be discussed, several relate to features which are not employed in defendant's Vapor Condenser. These include information about the stone bed, eutectic plates, and reversed air flow. The odor threshold of the solvent "perc", another item transmitted, is something that can be discovered by rather unsophisticated experimentation. The remaining items were the English cost data, wiring diagrams, and the design rate of cycling the compressor. In view of the fact that the component units of the Vapor Condenser differ from those of the Resolver, it is not apparent that this information could have been useful to defendant. At least we think that the plaintiff has not established the likelihood that it *172 will prevail at trial in showing that this information, or any other confidential information, was actually employed by defendant in designing the Vapor Condenser. For the same reason we find the line of cases typified by Smith v. Dravo, 203 F.2d 369 (7th Cir. 1953) to be inapposite.
It appears that plaintiff in the instant case may be relying on the kind of evidence which the Missouri Supreme Court has labelled "circumstantial". Carboline Co. v. Jarboe, supra. Such proof includes the facts that defendant had access to the confidential information, that defendant developed its products much more quickly than did plaintiff, and the fact of functional equivalence in products. The Court in Carboline took note of the fact that defendant had independent scientific skill in its labor force, and the same feature is present in the instant case. It is not sufficient for the plaintiff to show that information was given to defendant; its incorporation into the final product must also be shown.
In Metal Lubricants Co. v. Engineered Lubricants Co., 284 F.Supp. 483, 159 U.S.P.Q. 261 (E.D.Mo.1968), aff'd, 411 F.2d 426 (8th Cir. 1969), plaintiff oil manufacturer sought an injunction against a group of former employees who had allegedly taken customer lists and product specifications and formulas with them to form a new company. The court found that the defendants had had access to information about the working properties of the plaintiff's products, and when a customer inquired about a product's ingredients, defendants had had access to that information as well. One of the defendants testified, however, that they had developed their products by subjecting competitors' oils to laboratory analysis. The court denied injunctive relief:
The strict standards of Missouri law in the area of trade secrets compel the conclusion that plaintiff has failed to show any substantial misappropriation of protected information. The court is guided in this matter by the recent and very thorough opinion of the Missouri Supreme Court in National Rejectors, Inc. v. Trieman, 409 S.W.2d 1, 152 USPQ 120.
* * * * * *
Defendants were denied access to the more valuable product information. There was considerable evidence, supported by expert testimony on behalf of defendants, that even this information could often be obtained by proper meansthrough laboratory analysis, if not general gleanings from the trade. The court thus concludes that what little product information defendants were given in confidence cannot be held to be subject to protection as trade secrets. 284 F.Supp. at 487-88.
We find that Neil and Spencer has similarly failed to show any substantial misuse of protected information.
For the above reasons, the Court finds that a temporary injunction is not warranted on Counts I or III. We do not discern any greater likelihood of plaintiff's success on the merits of Counts II or IV, nor do we find that the plaintiff has established a greater susceptibility to irreparable injury or a greater degree of hardship under the theories of those counts. Therefore, the plaintiff's prayer for preliminary injunctive relief will be denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263741/ | 479 F.Supp. 1364 (1979)
RHODE ISLAND FEDERATION OF TEACHERS, AFL-CIO, et al.
v.
John H. NORBERG, in his capacity as Tax Administrator of the State of Rhode Island.
Civ. A. No. 79-0429.
United States District Court, D. Rhode Island.
November 16, 1979.
*1365 Julius C. Michaelson, Lynette Labinger, Providence, R.I., Natale L. Urso, Thomas J. Liguori, Jr., Westerly, R.I., for plaintiffs.
William G. Brody, Asst. Atty. Gen., John S. Foley, Sp. Asst. Atty. Gen., William T. Murphy, Providence, R.I., Robert M. Andersen, Milwaukee, Wis., for defendant.
OPINION
PETTINE, Chief Judge.
This case raises a challenge under the Free Exercise and Establishment Clauses of the First Amendment to the constitutionality of R.I.G.L. § 44-30-12(c)(2) as amended.[1] The law provides for deductions from gross income under the Rhode Island Income Tax Act for amounts paid by parents and guardians for their dependents' tuition, textbooks (including instructional materials and equipment), and transportation. As used in the statute, "textbooks" specifically excludes instructional books and materials used in the teaching of religious tenets, doctrines or worship. The benefits of the statute are available equally to parents whose children attend public as well as private elementary and secondary schools in any of the New England states.
The plaintiffs, a number of organizations and individual taxpayers, seek declaratory *1366 and injunctive relief pursuant to 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution. Plaintiffs have obtained a temporary restraining order preventing the defendant, the Tax Administrator of the State of Rhode Island, from taking any steps to prepare or print forms and instructions for the 1979 income tax returns that incorporate, refer or relate to the challenged deductions contained in the Act, and from permitting any taxpayer to claim deductions thereunder on 1979 tax returns. The Order has remained in effect pending entry of the decision and judgment of the Court. The matter is now before the Court for decision on the merits.
Based on a hearing and documentary evidence, the Court makes the following findings of fact. Of the 29,066 tuition-paying children who attend nonpublic schools in Rhode Island, over 94% attend sectarian schools.[2] The total number of students attending public schools in Rhode Island on an other than tuition-free basis is 321 students.[3] Combining the foregoing figures, 93.4% of the children attending school in Rhode Island whose parents are eligible for the challenged tuition deductions attend sectarian schools.
Since the Act applies equally to taxpayers whose children are enrolled in elementary and secondary schools in the other five New England states, those enrollment figures would also be pertinent. No data seem to exist, however, that indicate either the number of Rhode Island children attending school outside the state or whether this number is large or small in relation to the number attending school within the state. Uncontroverted evidence does exist that at least 79% of the students enrolled in private schools in New England attend sectarian institutions.[4] In the absence of contrary evidence, the Court believes that a reasonable inference can be drawn that the percentage of Rhode Island children attending sectarian schools in New England is consistent with this figure. In any event, the Court doubts that the number of Rhode Island children attending school in the other New England states is sufficient to significantly alter the conclusion that the overwhelming majority of parents eligible for the challenged tuition deduction send their children to sectarian schools. Accord, Public Funds for Public Schools v. Byrne, 444 F.Supp. 1228, 1229 (D.N.J.1978), aff'd, 590 F.2d 514 (3d Cir.), aff'd mem., ___ U.S. ___, 99 S.Ct. 2818, 61 L.Ed.2d 273 (1979).
No evidence has been submitted concerning transportation or textbook costs incurred by parents.
I. The First Amendment
Once again this Court is faced with the difficult and sensitive task of examining a Rhode Island statute within the framework of the religion clauses of the First Amendment. Although the Supreme Court and various commentators have devoted countless pages to discussions of the philosophical and historical underpinnings of these two clauses, they remain peculiarly immune from precise definition. The result has been that the Supreme Court's decisions in this area have, by the Court's own admission, reflected "considerable internal inconsistency." Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). These inconsistencies, perplexing even to constitutional experts, are particularly evident in the area of state aid to parochial schools, where, for example, the *1367 Court has made such fine distinctions as that between permissible state aid for textbooks, Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and impermissible aid for maps, Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975).
Despite the inconsistencies and fine distinctions made by the Supreme Court, certain broad principles have emerged from the cases. Most important have been the principles that "the state should not become involved in religious affairs and that sectarian differences should not be allowed to fragment the body politic." Tribe, American Constitutional Law at 819. These principles, which trace their roots to James Madison's Memorial and Remonstrance, developed in response to the situation in the American colonies in which government-established religions led to cruel persecutions against nonbelievers. Justice Black, writing in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), depicted the situation in the colonies as follows:
A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches. . . .
These practices of the old world were transplanted to and began to thrive in the soil of the new America. The very charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or nonbelievers, would be required to support and attend. An exercise of this authority was accompanied by a repetition of many of the old world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects . . .. And all of these dissenters were compelled to pay tithes and taxes to support government-sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by generating a burning hatred against dissenters.
Id. at 8-10, 67 S.Ct. at 508-09.
The Religion Clauses are no less valid today. Though it may be argued that state aid to parochial schools is a far cry from the establishment of religion typical of colonial times, the danger nevertheless exists that a law which extends material benefits to citizens along religious lines will greatly increase the risk of religious rancor. Justice Brennan has aptly noted that "government and religion have discrete interests which are mutually best served when each avoids too close a proximity to the other. It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government." Abington School District v. Schempp, 374 U.S. 203, 259, 83 S.Ct. 1560, 1591, 10 L.Ed.2d 844 (1963). Though separation of church and state is primarily to ensure an independent and neutral political system, it in turn keeps sacred the holy tenets of each individual's personal convictions.
It should be pointed out, however, that the wall of separation between civil and sectarian is not absolute. No one has seriously argued, for instance, that the state should be prohibited from providing churches and other religious institutions with police and fire protection. The state can undoubtedly provide religious institutions with incidental benefits that are afforded to all persons or institutions within a society. Walz v. Tax Commission, 397 U.S. 664, 676, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). It is the difficulty in determining whether the benefits are conferred on all members of society that has caused the Supreme Court to draw such perplexing distinctions.
In deciding the constitutionality of the Rhode Island statute at issue in this case, this Court cannot hope to reconcile all the *1368 fine distinctions made by the Supreme Court in the area of state aid to parochial schools. Rather, it is this Court's function to analyze the issues now before it, aided by the teachings of the various cases, and render a considered judgment in accord with the principles of the Constitution.
The Supreme Court has applied a three-part test in judging the constitutionality of various statutes under the Establishment Clause.[5]See, e. g., Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). First, the statute must have a secular legislative purpose; second, it must have a primary effect that neither advances nor inhibits religion; third, the statute and its administration must avoid excessive government entanglement with religion. Although this three-part test is more difficult to apply than it is to state, it constitutes a convenient and accurate distillation of the Supreme Court's efforts over the years to adjudicate cases under the Establishment Clause and has therefore been recognized as the proper framework of analysis for the issues presented in this case.
Although the plaintiffs have questioned the secular purpose of the challenged deductions, they have failed to introduce any evidence supporting this claim; indeed, they admit that they have raised the argument "only to preserve it for consideration by the United States Supreme Court should the decision of this Court be appealed to it." Without speculating as to the argument the plaintiffs hope to make before the High Court, this Court will, for the purposes of this case, accept the proposition that there is a neutral purpose to the challenged deductions.
The focal point of the plaintiffs' argument is the second prong of the test the "primary effect." Based on statistics they have submitted demonstrating that the overwhelming percentage of parents eligible for the challenged tuition deductions send their children to sectarian schools, plaintiffs contend that the primary effect of the statute is the advancement of religion.[6]
Plaintiffs also attack the statute on the basis of excessive government entanglement, particularly in its attempt to restrict deductions to expenses actually incurred in the purchase of "secular" textbooks. Plaintiffs submit that there is no meaningful way for the defendant to police the secular text restriction that would not involve the type of excessive entanglement condemned by the Supreme Court in such cases as Lemon v. Kurtzman, 403 U.S. 602, 93 S.Ct. 2955, 29 L.Ed.2d 745 (1971).
II. Primary Effect
Although the Supreme Court has never addressed the specific issue in this case, it has considered the primary effect of a similar tax benefit program in Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). In Nyquist, the Court found unconstitutional a New York statute that provided, inter alia, a tuition relief program for parents of children attending elementary or secondary nonpublic schools. The tuition relief consisted of two parts: a direct unrestricted grant of $50 to $100 per child as reimbursement *1369 for tuition to all parents whose taxable income was less than $5,000, and a deduction from adjusted gross income for tuition-paying parents whose income was greater than $5,000 but less than $25,000. Unlike the tuition reimbursement portion of the statute, the deduction from gross income was based not upon how much the taxpayer actually paid for nonpublic school tuition, but on the taxpayer's income level. In holding both the tuition reimbursement and the tax relief provisions unconstitutional, the Court noted that 85% of the state's nonpublic schools were church affiliated and concluded that:
[I]t is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid to perpetuate a pluralistic educational environment and to protect the fiscal integrity of overburdened public schools are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.
Nyquist, supra, at 783, 93 S.Ct. at 2971.
The defendant's initial argument is that the plaintiffs have not presented a prima facie case as to primary effect. The defendant contends that the plaintiffs' claim should fail because they have done no more than introduce a set of statistics; that is, although the plaintiffs have proved that the overwhelming majority of beneficiaries under the statute send their children to sectarian institutions, they have not shown that religious institutions will receive any benefit.
The Court rejects this contention. It has long been held that a law need not provide direct financial support to religious institutions themselves in order to have an unconstitutional primary effect. In Nyquist, the Supreme Court specifically rejected an argument that the tuition grants and tax deductions should be upheld because they were directed to parents rather than the schools themselves:
[I]f the grants are offered as incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions. Whether the grant is labeled a reimbursement, a reward or a subsidy, its substantive impact is still the same.
Nyquist, supra, at 786, 93 S.Ct. at 2972. See Public Funds For Public Schools of New Jersey v. Byrne, supra, at 1231.
The mere fact that the state has singled out along religious lines a class of its citizens for special economic benefit is sufficient to defeat an otherwise proper disbursement of state funds. Sloan v. Lemon, 413 U.S. 825, 832, 93 S.Ct. 2982, 37 L.Ed.2d 939 (1973). In striking down a tuition reimbursement program in Sloan, the Court emphasized that "this is quite unlike the sort of `indirect' and `incidental' benefits that flowed to sectarian schools from programs aiding all parents by supplying bus transportation and secular textbooks for their children." Sloan at 832, 93 S.Ct. at 2986.[7] Because the Rhode Island statute disproportionately directs its benefits to parents who send their children to religious schools, it cannot be said that the Act merely provides for an "indirect" and "incidental" benefit.
The defendant's second line of argument is to distinguish the challenged deductions from those at issue in Nyquist. The Nyquist Court noted that while the tax benefit at issue was in the form of a deduction, it operated as a tax credit since the deductions *1370 were not based on actual expenditures by the parents. Although the Court refused to decide the case on the basis of the technical label to be applied to the tax benefit, it explicitly reserved decision on the issue of whether "a genuine tax deduction, such as for charitable contributions [would be] constitutionally acceptable under the neutrality test in Walz v. Tax Commission." Nyquist, 413 U.S. at 790 n.49, 93 S.Ct. at 2974 n.49. Both the defendant and the amici argue that the deductions authorized by the Rhode Island statute fall within the ambit of the Nyquist reservation. They contend that the challenged deductions are more like the property tax exemption upheld in Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) than the tax relief struck down in Nyquist.
This Court recognizes that the Rhode Island statute differs from the tax benefit portion of the Nyquist statute in two ways. First, it applies to tuition for both public and nonpublic schools. Secondly, the deduction is directly related to the taxpayer's actual educational expenditures. These distinctions are not sufficient, however, to transport the challenged deductions across the constitutional border from Nyquist to Walz.
In Walz, the Supreme Court upheld the New York Tax Commission's grant of a property tax exemption to property used solely for religious purposes. The Court reasoned that the primary effect of the tax exemption was not sponsorship of religion since the government did not transfer part of its revenue to religious institutions, but simply abstained from demanding that the church support the state. Indeed, the Court implied that the exemption of church property from taxation was mandated by the Free Exercise Clause in that it served to minimize involvement and entanglement between church and state. The Court further emphasized that all fifty states have long recognized such an exemption for religious organizations and that the exemption, like police and fire protection, was not limited to religious institutions but was extended to all non-profit educational, charitable, and religious institutions.
The defendant, citing Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. 1316 (D.Minn.1978), a federal district court case upholding a tax relief program essentially identical to the one at issue here, argues that the three factors relevant to the constitutionality of the tax exemption in Walz are met in this case. Specifically, the defendant argues that (1) the challenged deductions are an abstention from taxation and not a transfer of revenues from state to church; (2) the class of beneficiaries is not restricted to religious institutions; and (3) deductions for charitable contributions have a long history of acceptance.
Defendant's argument that the challenged deductions constitute an abstention from taxation rather than a transfer of revenue from state to church is not persuasive. Defendant correctly points out that the deductions in Nyquist were not related to actual educational expenses, as they are here. Because a parent under the Nyquist statute could conceivably deduct an amount greater than his or her actual expenses, one might argue that government sponsorship of religious education was greater in Nyquist than it is here. Be that as it may, Nyquist was not decided on the basis of the disparity between the deduction and the taxpayer's actual expenses. Rather, the Nyquist Court stressed that the statute's infirmity lay with the fact that the deductions resulted in a charge upon the state for the purposes of religious education. In concluding that there was little difference between the tuition grant and the tax benefit for purposes of determining whether such aid had the effect of advancing religion, the Nyquist Court asserted:
The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State. . . . `[I]n both instances the money involved represents a charge made upon the state for the purpose of religious education.'
*1371 Nyquist 413 U.S. at 791, 93 S.Ct. at 2974-75 (citations omitted) (emphasis added).
This Court fails to see how a tax deduction for actual expenses is any less a charge upon the state. A deduction for actual educational expenses is the economic equivalent of the state helping to provide for those expenses, and as such, it is hardly an abstention from taxation. To argue that the challenged deductions are analogous to the tax exemption upheld in Walz is simply a distortion. As the Supreme Court pointed out in Nyquist, the Walz exemption was not the result "of any purpose to support or to subsidize, but of a fiscal relationship designed to minimize involvement and entanglement between Church and State." Nyquist at 793, 93 S.Ct. at 2976.
The defendant's second argument under Walz is that the class of beneficiaries is not restricted to religious institutions. It is true that the Rhode Island statute, unlike its counterpart in Nyquist, is applicable to parents of public as well as nonpublic school students. An examination of the evidence reveals, however, that this is mere window dressing. Even more so than in Nyquist, the overwhelming majority of the taxpayers eligible for the tuition deduction send their children to sectarian schools. This is in stark contrast to the tax exemption upheld in Walz. There, the Supreme Court found that the exemption was not restricted in its effect to a class comprised predominantly of religious institutions, but covered all property devoted to educational, charitable, and religious purposes.
Defendant's final argument based on Walz is that a tax deduction for charitable contributions, like the property tax exemption in Walz, has a long history of acceptance. This may be true, but it is irrelevant.[8] Educational expenses are simply not charitable contributions. A charitable contribution is one that is given without expecting anything in return; an educational expenditure is a purchase of a service the payor expects something in return for his money. While deductions for charitable contributions are somewhat analogous to property tax exemptions in that they are available not only for donations to religious institutions, but for donations to most nonprofit organizations, the tuition deduction at issue here is primarily available to parents who send their children to sectarian schools. In the final analysis, I find the challenged tuition deduction indistinguishable from the Nyquist deduction and hold that it is not the type of deduction for which there is a long history of acceptance.[9] As the Court pointed out in Nyquist:
[I]t seems clear that tax benefits for parents whose children attend parochial schools are a recent innovation, occasioned by the growing financial plight of such nonpublic institutions and designed, albeit unsuccessfully, to tailor state aid in a manner not incompatible with the recent decisions of this Court.
Nyquist at 792, 93 S.Ct. at 2975.
In conclusion, the Court determines that the challenged tuition deduction must fall because it is more analogous to the unconstitutional tax benefit in Nyquist than it is to the permitted tax exemption in Walz. Given the uncontroverted statistical evidence that over 93% of the children whose parents are eligible for tuition deductions attend sectarian schools, I find that the primary effect of the tuition deduction is the advancement of religion and as such it is unconstitutional under the Establishment Clause.
*1372 Defendant argues that even if the tuition deduction is unconstitutional, the plaintiffs have failed to introduce any evidence concerning the primary effect of the transportation and textbook deductions.[10] Even conceding the plaintiffs' failure to prove an unconstitutional primary effect, the Court finds other reasons for holding the entire statute unconstitutional.
III. Entanglement
Although the Supreme Court has upheld textbook loan statutes under the Establishment Clause, see, e. g., Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975); Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), it has never upheld a tax deduction for textbook expenses. I believe that the tax deduction is constitutionally distinct from the loan cases in its potential for excessive entanglement between church and state.
The statutes at issue in Allen and its progeny authorized local school boards to purchase secular textbooks with public funds and lend them to both public and nonpublic school students. At the very least, then, these cases stand for the proposition that it is not unconstitutional per se for the state to provide secular textbooks for parochial school children. But this does not mean that the state can provide such aid in any manner it chooses. In each of the statutes upheld by the Supreme Court, government involvement with religion was at a minimum; once the state made an initial inspection of the books to ensure that they were secular, its responsibility was at an end. In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Supreme Court contrasted the minimal government involvement implicit in the textbook loan statutes with a state program to supplement salaries of teachers of secular subjects:
A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.
Lemon v. Kurtzman at 619, 91 S.Ct. at 2114.
Like the program ruled unconstitutional in Lemon, the deduction for textbooks would require a comprehensive and continuing surveillance to enforce the restriction against religious oriented books, since under the statute parents decide for themselves which books are secular. The fact that the statute includes "other instructional materials and equipment" in addition to books makes the likelihood of entanglement even greater, according to recent Supreme Court decisions, because the government would not only have to supervise the parents' purchases, but it would have to supervise the parochial schools themselves to ensure that the "instructional materials" were not to be used in the course of religious instruction. See Wolman v. Walter, 433 U.S. 229, 248-251, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977) (statute authorizing state purchase and loan to pupils of instructional materials and equipment such as projectors, tape recorders, maps, science kits and the like held unconstitutional); Meek v. Pittenger, 421 U.S. 349, 362-66, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975) (statute authorizing state to loan pupils periodicals, maps, recordings, projectors, laboratory paraphernalia and the like held unconstitutional).
Because the deduction for secular textbooks and other instructional materials cannot be policed without excessive government entanglement, the textbook deduction is unconstitutional under the Establishment Clause.
IV. Severability
As to the transportation deduction, the Court does not believe that the government's *1373 administration of the deduction would involve excessive entanglement, nor does it find an illegal primary effect, the plaintiffs having presented no evidence on this issue. Given this determination, the defendant argues that the Court should leave the transportation deduction standing even as it strikes down the deductions for tuition and textbooks. I disagree.
Although the Rhode Island Income Tax Act contains a severability clause[11] that is generally applicable to all provisions in the Act, the presence of such a clause particularly one that is of general rather than narrow applicabilityis not conclusive on the question of severability. United States v. Jackson, 390 U.S. 570, 585 n.27, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). Rather, the determining factor is the intent of the legislature: whether the legislature would have enacted the constitutional portion of the statute independently of the unconstitutional provisions. See Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062 (1932).
In the instant case, the major focus of the legislature in passing R.I.G.L. § 44-30-12(c)(2) was the tuition deduction. Having previously provided for publicly funded transportation[12] and the loan of textbooks,[13] the legislature undoubtedly realized that the major portion of parents' educational expenses was tuition.[14] The fiscal note prepared by the Budget Office supports this conclusion. That note, which is prepared by the Budget Office pursuant to R.I.G.L. § 22-12-1's mandate to estimate the effect of all bills and resolutions on the revenues, expenditures or fiscal liability of the state, indicates that no attempt was even made to calculate the cost to the state of the deductions for transportation and textbooks. Indeed, a spokesperson for the Budget Office acknowledged that in preparing the fiscal note, the Budget Office operated under an assumption that the major impact of the challenged deductions would come from tuition. Plaintiffs' Exhibit A.
In Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), the Court was faced with a similar issue of severability. In Meek, the Court ruled unconstitutional a gamut of state funded educational services and equipment including testing services, psychological services, maps, recordings, *1374 and photographs. In addition to these unconstitutional provisions, the statute included certain diagnostic services such as speech and hearing services that the Court believed fell within that class of general welfare services that may be provided by the state. Although the statute contained a severability clause, the Court declared that in view of the fact that the diagnostic services constituted a minor portion of the services authorized by the Act, it could not assume that the Pennsylvania General Assembly would have passed the law solely to provide such aid. See also Sloan v. Lemon, 413 U.S. at 833-34, 93 S.Ct. 2982.
In light of my determination that the transportation deduction constitutes a minor portion of R.I.G.L. § 44-30-12(c)(2), the Court refuses to sever the statute. The entire statute is thus declared unconstitutional under the Establishment Clause.
V. Conclusion
Whenever this Court is called upon to review a statute providing for aid to religious schools, it is aware of the great service such schools have provided the community over the years. The Court is also aware that increasing costs and declining enrollment have made it more and more difficult for such schools to continue to provide this service. Despite these sympathies, this Court's responsibility is not to respond to public sentiment, but to uphold the Constitution of the United States. Although the tax savings authorized by R.I.G.L. § 44-30-12(c)(2) are perhaps negligible (an average savings of thirty-three dollars per household), the statute is clearly contrary to the Establishment Clause of the First Amendment to the Constitution. For the reasons set out above, the Court declares the statute unconstitutional and permanently enjoins the defendant Tax Administrator of the State of Rhode Island from taking steps to prepare or print forms and instructions for income tax returns that incorporate, refer or relate to the challenged deductions contained in the Act, and from permitting any taxpayer to claim such deductions on his or her tax return.
NOTES
[1] R.I.G.L. § 44-30-12(c)(2) reads as follows:
(c) Modifications Reducing Federal Adjusted Gross Income. There shall be subtracted from federal adjusted gross income . . . (2) amounts paid to others, not to exceed five hundred ($500) dollars for each dependent in kindergarten through sixth grade and seven hundred ($700) dollars for each dependent in grades seven through twelve inclusive, for tuition, textbooks, and transportation of each dependent attending an elementary or secondary school situated in Rhode Island, Massachusetts, Connecticut, Vermont, New Hampshire, or Maine, wherein a resident of this state may legally fulfill the state's compulsory attendance laws, which is not operated for profit, and which adheres to the provisions of the Civil Rights Act of 1964. As used in this section, "textbooks" shall mean and include books and other instructional materials and equipment used in elementary and secondary schools in teaching only those subjects legally and commonly taught in public elementary and secondary schools in this state and shall not include instructional books and materials used in the teaching of religious tenets, doctrines, or worship, the purpose of which is to inculcate such tenets, doctrines or worship.
[2] A survey conducted by the plaintiffs and submitted into evidence indicates that enrollment figures for the fall of 1979 were 27,397 students attending nonpublic sectarian schools and 1,669 students attending nonpublic nonsectarian schools. Of the students attending sectarian schools, the breakdown was as follows: Roman Catholic (24,983); Society of Friends (1,089); Episcopal (396); Jewish (286); Fundamentalist (154); Lutheran (101); Baptist (73); unspecified (315).
[3] The most current figures available are those for the 1978-79 school year. These figures reveal that there were 37 tuition-paying students enrolled in Rhode Island public schools and 284 tuition-paying students enrolled in the Henry Barnard School, an elementary school operated within Rhode Island College by the State of Rhode Island.
[4] See National Center for Education Statistics, Nonpublic School Statistics, 1976-77. (Plaintiffs' Exhibit J-1).
[5] Although the plaintiffs have also raised a free exercise claim, the Court hesitates to reach such a novel issue in light of its disposition of the case.
[6] Plaintiffs have failed to introduce any statistical evidence concerning the beneficiaries of the transportation and textbook deductions, contending that such deductions are de minimus or nonexistent. Because local communities are required under Rhode Island law to provide most public and nonpublic school students with transportation and secular textbooks, R.I.G.L. §§ 16-21-1 (transportation within town limits), 16-21.1-1 et seq. (transportation without town limits), 16-23-2 (loan of textbooks), plaintiffs argue that few parents will have such deductible expenses. As a result, they reason that the primary, if not the sole, focus of the Act is tuition itself. To bolster their argument, the plaintiffs have introduced into evidence the fiscal note prepared by the Budget Office of the State of Rhode Island in conjunction with the legislature's consideration of the deductions. This note indicates that no attempt was made to calculate the cost to the state of the deductions for transportation and textbooks. See pp. 1373-1374 infra.
[7] The amici put great emphasis on the fact that the transportation statute upheld in Everson, supra, and the textbook statute upheld in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) conferred a financial benefit on parents and not schools. Contrary to the amici's implication, these statutes were upheld not because the financial benefit was directed at parents but because they were directed to all parents in the community at large.
[8] Although the Supreme Court reserved decision on this issue in Nyquist, it has never ruled that deductions for charitable contributions are constitutional under the Establishment Clause. This Court need not decide this issue in resolving the instant case.
[9] Furthermore, even if tuition deductions did have a long history of acceptance, that would not be enough to make them constitutional. See Committee for Public Education v. Nyquist, 413 U.S. 756, 792, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Walz v. Tax Commission, 397 U.S. 664, 678, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). The Walz property tax exemptions were upheld not merely because of their long historical acceptance; rather, it was the reason underlying that history of tolerance that proved controlling. Nyquist, 413 U.S. at 792, 93 S.Ct. 2955. That reason, a proper balancing of the Free Exercise Clause with the Establishment Clause, does not exist in this case.
[10] For the plaintiffs' response to this argument, see n.6 supra.
[11] R.I.G.L. § 44-30-96 reads as follows:
Severability of provisions. If any provision of this chapter or the application thereof shall for any reason be judged invalid, such a judgment shall not affect, impair or invalidate the remainder of the law, but shall be confined in its effect to the provision or application directly involved in the controversy giving rise to the judgment.
[12] R.I.G.L. § 16-21-1 requires that the school committee of any town provide suitable transportation to and from schools for pupils attending public and private schools of elementary and high school grades.
R.I.G.L. § 16-21.1-1 et seq. provides for transportation of school pupils beyond city and town limits to regional, consolidated and special education schools.
[13] R.I.G.L. § 16-23-2 requires the local school committee to loan textbooks in the fields of mathematics, science and modern foreign languages, which appear on a list of textbooks published by the commissioner of education, to all private and public elementary and secondary school students who reside in such community. In addition, the statute requires local school committees to furnish, free of charge, all other textbooks and school supplies to pupils of public schools.
This statute, under which textbooks may be lent for use in sectarian schools, has been upheld by the Rhode Island Supreme Court as constitutional under the Establishment Clauses of both the Constitution of Rhode Island and the United States Constitution. Bowerman v. O'Connor, 104 R.I. 519, 247 A.2d 82 (1968).
[14] R.I.G.L. § 16-21.1-1 et seq., which provides for transportation outside town limits to regional schools, is currently under constitutional attack before this Court in Members of the Jamestown School Committee v. Schmidt, C.A. No. 77-0511. If the statute is held unconstitutional under the Establishment Clause, the result may very well be that parents who send their children to regional schools will have to pay for transportation themselves and will thereby be eligible for the transportation deduction under R.I.G.L. § 44-30-12(c)(2). In that event, the deduction for transportation costs would become a more significant portion of the statute. It should be noted, however, that if the great majority of these regional schools are sectarian, then the transportation deduction itself would be susceptible to constitutional attack under the primary effect test. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337590/ | 212 Ga. 501 (1956)
93 S.E.2d 679
PRINTUP et al.
v.
SMITH.
19401.
Supreme Court of Georgia.
Argued June 12, 1956.
Decided July 10, 1956.
*502 W. Inman Curry, Curry & Curry, J. Paul Stephens, Congdon & Leonard, Wm. P. Congdon, for plaintiff in error.
Boller & Yow, contra.
DUCKWORTH, Chief Justice.
Although the caveators prayed, first, that the will be not probated, they offered as a second prayer that, if probated, their choice be appointed administrator with the will annexed, and that the request of the propounder, that she be so appointed, be denied. The court of ordinary denied the first prayer, but granted the second. The question for our decision is, if the caveators should be allowed to appeal from that judgment of the ordinary. Where one prayed for a construction of a will and the court construed it, this court held that, having obtained the relief prayed for, he could not except to that judgment. First National Bank of Rome v. Yancey, 207 Ga. 437 (62 S. E. 2d 179). One assuming a position in court and having that position sustained by the court can not thereafter assume a contrary position. Comer v. Epps, 149 Ga. 57 (99 S. E. 120). In the case last cited it is intimated that the rule might be different if the opposite party had not acted thereon to his prejudice. We think the serious business of the court would justify it in refusing to allow one to "blow hot and then cold," thereby wasting its time. Courts have no power to control what litigants may ask them to do, but if a litigant is not sure of what he wants, he can refuse to ask for and receive a judgment of the court. Having voluntarily prayed for precisely the judgment granted him, it would be trifling with the law to allow him to secure a reversal of the judgment sought with full knowledge of all relevant facts.
It is true that in Gaither v. Gaither, 23 Ga. 521, it was held that a judgment probating a will in common form did not estop the executor from moving to set it aside and declare the will void. We think merely to point out the explanation of that decision given by this court in Hardeman v. Ellis, 162 Ga. 664 (135 S. E. 195), where it was shown that the executrix did not at the time of the probate know of the facts that decision is clearly inapplicable here. Where one assumes a position ignorant of material facts, upon discovery of such facts he may take an opposing position if innocent people will not suffer thereby. Horne v. Lewis, 160 Ga. 824 (129 S. E. 95); Johnson v. Ellis, 172 Ga. 435 *503 (158 S. E. 39). Counsel for the caveators cite Peterson v. Lott, 200 Ga. 390, 394 (37 S. E. 2d 358), and we believe one sentence therein defeats counsel's position. That sentence is: "Two remedies are inconsistent if the assertion of one involves the negation or repudiation of the other." Does the appointment of the caveators' selection as administrator with the will annexed "negate" or "repudiate" a claim that the will is void? Does the request and acceptance of such appointment upon the judgment of probate constitute acceptance and action upon that judgment? We think the answer to both questions is yes. One can not at the same time attack a judgment and have a claim to a position based upon that judgment.
From what is said above, the court did not err in dismissing the appeal.
Judgment affirmed. All the Justices concur, except Mobley, J., who dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337591/ | 229 S.C. 614 (1956)
93 S.E.2d 889
THE STATE, Respondent,
v.
J.B. CANNON, Appellant.
17191
Supreme Court of South Carolina.
July 19, 1956.
*615 *616 H.T. Abbott, Esq. of Conway, for Appellant.
Messrs. J. Reuben Long, Solicitor, and J.M. Long, Jr., of Conway, for Respondent.
H.T. Abbott, Esq., of Conway, for Appellant, in reply.
July 19, 1956.
TAYLOR, Justice.
Appellant was found guilty of murder and recommended to the mercy of the Court at the June, 1955, Term of the *617 Court of General Sessions for Horry County and appeals, contending, among other things, that the trial Court erred in permitting improper argument to the jury on the part of counsel for the prosecution.
The evidence was principally circumstantial, and inasmuch as a new trial must be had, we will limit our discussion to that portion of the record necessary to show wherein error was committed.
Appellant was charged with having set fire to his mother-in-law in her home, which was in the same community where he lived, on May 8, 1955, from which she died three days later on May 11th.
In argument to the jury, the Solicitor made reference to the fact that insurance was in existence on the life of the deceased and charged that the defendant had murdered the deceased for the purpose of collecting $4,000.00. Objection was duly made to this line of argument but overruled.
An examination of the testimony reveals that one Marion Ford, a witness for the State, was permitted to testify, over objection, that on April 25th, he had called upon appellant and his wife at their home for the purpose of selling life insurance and had written an application for $1,000.00, with double indemnity, upon the life of the deceased with the wife of appellant as beneficiary, that the premium thereon was $1.13. Appellant paid $1.00 and the agent paid the thirteen cents. On cross-examination, it was brought out that the application was mailed to the home office on the week end. The policy was issued and received by the witness on the 9th of May; that he was not aware that Mrs. Mishoe had been burned on the day previous or that she had died on the 11th of May, on which date he delivered the policy to the wife of appellant. There is no evidence from which it could be concluded that appellant might collect $4,000.00 insurance upon the death of the insured or that appellant might benefit in any way therefrom, except by way of inference that whatever his wife received would indirectly be to his advantage *618 as she was the named beneficiary and only she could collect. The only other reference to insurance is that appellant had in March of that year acquired insurance on his father.
The Solicitor in his argument to the jury may give his version of the testimony, State v. Jernigan, 156 S.C. 509, 153 S.E. 480; and the conduct of a trial is left largely to the discretion of the presiding Judge, and this Court will not interfere unless it clearly appears that the rights of the complaining party were abused or prejudiced in some way. State v. McGill, 191 S.C. 1, 3 S.E. (2d) 257; State v. Gidron, 211 S.C. 360, 45 S.E. (2d) 587. And one seeking a new trial because of unfair or improper argument on the part of counsel for the successful party should show that: First, timely objection was interposed to the argument; second, the substance, at least, of the objectionable language; third, the failure of the Court to sufficiently warn the jury not to consider the improper argument; and, fourth that the result was to materially prejudice the right of the losing litigant to obtain a fair and impartial trial. State v. Meehan, 160 S.C. 111, 158 S.E. 151; State v. Smith, 165 S.C. 215, 163 S.E. 639; State v. Hinton, 210 S.C. 480, 43 S.E. (2d) 360.
The rule that it is the duty of the prosecuting attorney to always treat the defendant in an impartial manner applies to his argument to the jury, and he should at all times confine himself to the evidence adduced in the trial. "It is most certainly proper, especially in criminal cases, that counsel, in addressing the jury, should keep themselves strictly within the record. This rule is essential, and must be enforced; * * *.'" State v. McDonald, 184 S.C. 290, 192 S.E. 365, 370, citing State v. Robertson, 26 S.C. 117, 1 S.E. 443.
While it is often difficult to draw the line between legitimate argument and that which is prejudicial, such matters must to a large extent be left to the wise discretion of the Circuit Judge. In the instant case, (1) *619 timely objection was made; (2) the objectionable language was recorded; (3) the Court overruled the objection; and (4) since the case was tried on the theory that insurance was the motive, we cannot escape the conclusion that the remarks were not only improper but properly affected the verdict and, therefore, prejudicial.
Other questions are presented by Appellant in his brief but will not be discussed in view of the necessity for a new trial, except that in our opinion there was no error in refusing Appellant's motion for a directed verdict of not guilty.
The judgment and sentence appealed from are therefore set aside and the case remanded for a new trial.
Reversed.
STUKES, C.J., and OXNER, LEGGE and MOSS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337594/ | 212 Ga. 370 (1956)
93 S.E.2d 9
BURGIN et al.
v.
MOYE.
19306.
Supreme Court of Georgia.
Argued April 9, 1956.
Decided May 15, 1956.
*371 Jesse G. Bowles, for plaintiff in error.
Carlton S. Brown, R. S. Wimberly, contra.
ALMAND, Justice.
L. M. Moye, Jr., brought an action in ejectment in the statutory form in the Superior Court of Stewart County against R. F. Burgin and Burgin Lumber Company of Randolph County.
The petition in substance alleged the following: The defendants are in possession of a certain tract of land in Stewart County containing 37.07 acres. The abstract of title under which the plaintiff claimed is as follows: (1) a warranty deed from D. T. Pinkston to A. J. Moye, dated April 9, 1878, recorded on May 22, 1878, conveying "all that tract or parcel of land in the 20th District of Stewart County, Georgia, containing 126 1/4 acres, more or less, and more particularly described as one-half of lot 76, and 25 acres off the northern part of lots 75 and 76, the 25 acres last mentioned being made up of part of lot 76 nor [not] otherwise herein conveyed, and part of lot 75"; (2) deed from the executors of the estate of A. J. Moye, conveying to L. Mickle Moye the property last described, said deed being dated May 17, 1934; (3) deed from L. Mickle Moye to L. Mickle Moye, Jr., (the plaintiff in this case), dated July 14, 1948, conveying the property above described together with other property. A. J. Moye took possession of the east half of lot 76, and he and his successors in title remained in possession of the same until the year 1950, at which time the defendants unlawfully dispossessed the plaintiff of the 37.07 acre tract described in the petition. The defendants have no right or title to any of the land in lot 76 except squatters' rights, and their possession was not in good faith, and they have no lawful claim to any land in the east half of lot 76.
The petition further alleged that the defendants claim the *372 property sought to be recovered from the same source of title under which the plaintiff claims, to wit, said D. T. Pinkston, claiming under a deed made by the heirs at law of D. T. Pinkston, conveying to Aurelia Crumbley "all of the land in Stewart County, Georgia, known as the estate of D. T. Pinkston, and consisting of all of lots 76 and 53 and part of lot 75, in the 20th district (except that portion of 76 and 75 deeded to A. J. Moye, said to be 125 acres, more or less)", and subsequent conveyances of said tract to the defendants.
It was alleged that Mrs. Crumbley, the predecessor in title of the defendants, took possession of the west half of lot 76, except a small part of the northern part of said half, which was included and described in the deed from Pinkston to A. J. Moye, and that Mrs. Crumbley and her successors in title remained in possession of the west half of said lot, less said small northern part of said half, and for more than 20 years each of the adjoining landowners recognized the title in said Moye and his successors in title to the east half of said lot, and that of Mrs. Crumbley and her successors in title to the west half of said lot less said northern part.
The general and special demurrers of the defendants to the amended petition being overruled, the defendants by bill of exceptions assign error on this ruling.
1. It is first contended that the petition should have been dismissed on demurrer because it did not show affirmatively that the land sought to be recovered was located in Stewart County. The petition is captioned, "Georgia, Stewart County." The first paragraph alleges that the named defendants "are of Randolph County," and "are in possession of a certain tract of land in said county described as follows," and the description of the tract in this paragraph does not name any county in which the land lies. Standing alone, the allegation as to the residence and possession of the defendants does appear to be ambiguous, but this ambiguity was removed by the filing of the amendment, which described the "east half of lot 76 and other land" as being in Stewart County, Georgia. As thus amended, the petition sufficiently describes the land sought to be recovered as being in Stewart County, Georgia.
2. The defendants contend that the general demurrers should *373 have been sustained because the description of the property in the deed relied on by the plaintiff does not sufficiently identify the property sought to be conveyed, and such deed is invalid as a conveyance of title. The plaintiff contends that the description contained in the deed from Pinkston to A. J. Moye contains a key whereby the portion of lot 76 conveyed can only be the eastern half of said lot, his contention being that this deed also conveys 25 acres of the northern part of lots 75 and 76; and since the 25 acres are part of the whole tract, it can only be identified by marking off 25 acres from the northern parts of lots 75 and 76 to form a parallelogram, and this could only be done by placing the remainder of the tract in the east half of lot 76.
We judicially know from the records of the Secretary of State that lot 76 in the 20th district of Stewart County is in the form of a square, and that lot 75 adjoins and is to the west of lot 76. The one-half of lot 76 intended to be conveyed could be located in more than one way. It could have covered the west half of lot 76, 12 1/2 acres in the northwest corner of the east half of lot 76, and 12 1/2 acres in the northeast corner of lot 75, and these two 12 1/2 acre tracts would be a part of the whole tract of 126 1/4 acres. Another way would be to draw a line beginning on the north line of lot 76, 100 feet east of the northwest corner of that lot and running diagonally to a point on the south line of said lot 100 feet west of the southeast corner thereof, and place the 25 acres in the northwest corner of lot 76 and the northeast corner of lot 75, and the 25 acres would be a part of the whole tract.
In our opinion, the description in the deed is too indefinite and uncertain as to what half of lot 76 the grantor intended to convey, and therefore was insufficient as a basis on which to assert title under this deed. Darley v. Starr, 150 Ga. 88 (102 S. E. 819).
3. "Conjunctive allegations of both paper and prescriptive title to land in the plaintiff will not render the whole petition subject to general demurrer, even though the allegations as to paper title in the plaintiff are insufficient to show such title, where the allegations are sufficient to show good prescriptive title in the plaintiff to the land in controversy, and there is no *374 special demurrer upon the ground of multifariousness." Bridges v. Brackett, 205 Ga. 637 (2) (54 S. E. 2d 642). Where, in a statutory action for land, the plaintiff in his petition unqualifiedly alleges that he is the owner of the land, and also alleges that he and his predecessors in title have been in peaceable possession for more than 30 years, and avers that about 2 years and 3 months prior to the filing of the petition the defendant took possession of the land, although the plaintiff alleges that his title is derived through certain persons and his petition as amended does not show such reliance on and limit of his claim of title by the abstract, such amended petition is not subject to the grounds of demurrer. Foster v. Rowland, 194 Ga. 845 (5) (22 S. E. 2d 777).
The petition as amended alleges that in 1878 D. T. Pinkston owned lot 76, and in April of that year he purported to convey by deed one-half of lot 76 and 25 acres in lots 76 and 75, and in December, 1896, the heirs of Pinkston conveyed by deed to Aurelia Crumbley, predecessor in title of the defendants, all of lot 76 and part of lot 75 except that portion of lots 75 and 76 deeded to A. J. Moye containing 125 acres more or less; that A. J. Moye took possession of the east half of lot 76, and such possession continued in Moye and his successors in title, including the plaintiff, until 1950, at which time the defendants unlawfully took possession of the 37.07 acres described in the petition; and that, while the respective owners were in possession of the two tracts, each for more than 20 years recognized the title in one another. The tract of 37.07 acres sought to be recovered is described by courses and distances, and from such description it can be located as being entirely in the eastern half of lot 76. The petition distinctly alleges that the plaintiff and his predecessors have been in possession for more than 20 years prior to the time the defendants took possession of said tract. The word "possession" "denotes the corporeal control of property, a state of actual occupancy, evidenced by things capable of being seen by the eye or of being ascertained by the use of the primary senses." Powell on Actions for Land, § 292. As against general demurrer, the amended petition contains sufficient allegations to show that the plaintiff has a prescriptive title to the described parcel of land. See Code *375 § 85-401; Key v. Stringer, 204 Ga. 869 (2) (52 S. E. 2d 305).
4. We have examined the rulings on the special demurrers, and find that the court did not err in overruling all of them.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337596/ | 229 S.C. 376 (1956)
93 S.E.2d 107
FRANCES R. SIMONDS, Appellant,
v.
JOHN C. SIMONDS, Respondent.
17166
Supreme Court of South Carolina.
May 22, 1956.
*377 *378 Messrs. Stoney & Crosland, and Sinkler, Gibbs & Simons, of Charleston, for Appellant.
*379 Messrs. Buist & Buist and Thos. P. Bussey, of Charleston, for Respondent.
*380 Messrs. Stoney & Crosland, and Sinkler, Gibbs & Simons, of Charleston, for Appellant, in Reply.
May 22, 1956.
MOSS, Justice.
The appellant, Frances R. Simonds, and John C. Simonds, the respondent, are husband and wife. They were married on November 12, 1930.
This action, which was instituted on December 7, 1953, is one for divorce on the ground of habitual drunkenness, Section 20-101 (4), Code of 1952. The respondent denies that he is an habitual drunkard. The case was referred to the Master for Charleston County and after all of the testimony had been taken, the appellant was allowed to amend her complaint by adding thereto as an additional ground for divorce that of constructive desertion.
The Master of Charleston County filed his report recommending that the appellant be granted a divorce on the ground that the respondent was an habitual drunkard and that he was guilty of constructive desertion. He also recommended the allowance of a lump sum award of alimony and that he pay counsel fees of appellant's attorney. Upon exceptions by the respondent to the findings of fact and legal conclusions contained in the Master's Report, the Trial Judge held that the appellant was not entitled to a divorce on the ground of habitual drunkenness or constructive desertion. *381 The case is before this court upon exceptions by the appellant to the Order of the Circuit Judge. This appeal may be disposed of by determining whether or not the appellant was entitled to a divorce on the grounds of habitual drunkenness or constructive desertion on the part of the respondent.
The Trial Judge found, and the record sustains such finding, that the appellant and respondent separated on December 17, 1952. At that time the wife left the home of the parties, and after being absent for a few days, the husband removed himself from the family home and took residence at the Fort Sumter Hotel in Charleston, thereupon the wife returned to the family residence and has lived there since. It is an admitted fact that from the time of the separation of the parties on December 17, 1952 until the commencement of the action that the respondent has wholly abstained from indulging in the use of alcoholic beverages. The respondent has been totally abstemious for approximately one year prior to the institution of this action for a divorce upon the ground of habitual drunkenness. Habitual drunkenness and abstemiousness for a long period of time are incompatible terms. The appellant bases her right to relief upon the existence of the former. The Trial Judge held that no divorce could be granted on the ground of habitual drunkenness unless it continues up to the time of the commencement of the action.
In the case of Fish v. Fish, 126 Me. 342, 138 A. 477, 54 A.L.R. 327, the Maine Supreme Judicial Court held that in order to justify a divorce for gross and confirmed habits of intoxication, the habits must continue up to the time of the filing of the libel. In this case there is cited a number of decisions from various courts confirmatory of this holding. We cite several of them.
In the case of Burt v. Burt, 168 Mass. 204, 46 N.E. 622, the Supreme Court of Massachusetts, in dealing with this question where the statutory ground involved was "`gross and confirmed drunkenness, caused by the voluntary and excessive use of opium or other drugs'", St. Mass. 1889, c. 447, had this to say:
*382 "`The decree which was entered, in view of the finding of the libelee's use of the drug after she left her husband, seems to be based upon this construction of the statute, namely, that the libelant would be entitled to a decree if at any time after the statute was in force the libelee was in the condition set forth in the statute, although the gross character of the use of the drug had become modified or had ceased when the libel was brought. We are of opinion that this view is erroneous. `Gross and confirmed drunkenness' is a condition, just as what is called in the Pub. St. c. 146, § 1, `gross and confirmed habits of intoxication' is a condition. Substantially the same rules apply to both descriptions. Drunkenness cannot fairly be said to be gross and confirmed if at the time the libel is filed the character of the use of the intoxicant or drug has ceased for some length of time, so that it may fairly be found that the condition required by the statute no longer exists. The statute does not authorize a divorce on account of the use of a drug, but only for its abuse. The use must be excessive, and must produce a certain result, and this result must exist when the libel is filed."
Likewise, in the cases of McCraw v. McCraw, 171 Mass. 146, 50 N.E. 526, and Gowey v. Gowey, 191 Mass. 72, 77 N.E. 526, the Court reiterated that gross and confirmed habits of intoxication, in order to warrant a decree of divorce, must have existed when the libel was filed. This rule also was followed in Hammond v. Hammond, 240 Mass. 182, 132 N.E. 724.
In the case of Allen v. Allen, 73 Conn. 54, 46 A. 242, 49 L.R.A. 142, 84 Am. St. Rep. 135, where a statute provided that a divorce may be granted for "habitual intemperance", the Court held that the cause must be "found to exist at the time the decree is made * * * at the very time when the divorce is granted". This rule has now been changed by amendment of the Connecticut Statute.
In Smithston v. Smithston, 113 Miss. 146, 74 So. 149, L.R.A. 1917D, 361, where a divorce was sought upon the *383 alleged cause of "`habitual and excessive use of opium, morphine, or other like drug'", the Court held that the habit must be fixed and must continue until the suit is brought.
In the case of McMahon v. McMahon, 170 Ala. 338, 54 So. 165, where the Alabama Statute authorized a divorce "`For becoming addicted after marriage to habitual drunkenness'", it was held that the habit must be fixed and must continue until the suit is brought.
In the recent case of Meares v. Meares, 256 Ala. 596, 56 So. (2d) 661, 662, it appears that the husband and wife were separated in Florida on November 20, 1949. The wife returned to her home in Alabama, and after one year as required by the statute of Alabama, she filed a bill for divorce on November 24, 1950, alleging that her husband became addicted after his marriage to habitual drunkenness. The court thought it sufficient to say as to the evidence that none was offered "tending in any way to show that the habit of drunkenness continued until at or near the time of filing * * *. The testimony on this point ended as of the time of the separation in November, 1949, a year before the bill was filed." The court then went on to say, "* * * the habit of drunkenness must have * * * continued until at or near the time of filing the bill for divorce".
See also the case of Meathe v. Meathe, 83 Mich. 150, 47 N.W. 109; Reynolds v. Reynolds, 44 Minn. 132, 46 N.W. 236; Youngs v. Youngs, 130 Ill. 230, 22 N.E. 806, 6 L.R.A. 548; Gourley v. Gourley, 16 R.I. 705, 19 A. 142; and the annotation 54 A.L.R. 331.
Nelson on Divorce, Volume I, Section 7.05 states that, "Apparently it is the weight of authority that a condition of habitual drunkenness must have continued up to, and be existent at the time of, the filing of the libel." Numerous cases, cited in the footnotes as authority for the quoted proposition, fully confirm the statement of law and not a single case is cited holding to the contrary.
*384 Based upon the authorities heretofore cited and referred to, in order that a divorce may be granted on the ground of habitual drunkenness, such must exist at or near the time of the filing of the action for a divorce. It being admitted that the respondent had totally abstained from the use of alcohol in any manner for approximately a year after the separation of the appellant and respondent, the condition of habitual drunkenness did not exist at or near the time of the filing of this action. The Trial Judge properly held that a divorce could not be granted on the ground of habitual drunkenness.
We consider now the question of whether the court was in error in refusing to grant appellant a divorce from respondent on the ground of constructive desertion. It has heretofore been stated that the appellant left the joint home of herself and her husband on December 17, 1952 and that this action was commenced on December 7, 1953. If there was any constructive desertion it occurred on December 17, 1952.
In the case of Machado v. Machado, 220 S.C. 90, 66 S.E. (2d) 629, 633, Mr. Justice Oxner states:
"It also might not be amiss to call attention to the fact that while the doctrine of constructive desertion is generally recognized, there is an irreconcilable conflict in the authorities as to the character of misconduct that must be shown to justify a divorce on this ground. Many courts hold that the abandoning party seeking to make a technical deserter out of the one abandoned must establish misconduct on the part of the other in itself, and independently, amounting to a ground for divorce. In other words, it is said that if the conduct complained of is not itself a sufficient cause for divorce, the courts cannot by indirection do that which is not authorized by statute. Among the states adopting this view are Virginia, New Jersey, Kentucky, Illinois and Arkansas. Other courts, such as Connecticut and Maryland, hold that the conduct of one spouse compelling the other *385 to leave may justify a divorce to that other on the ground of desertion, even though such conduct is not a ground for divorce. They hold, however, that it must be of such nature as to render impossible the continuation of the marital cohabitation with due regard for safety, health and self-respect. In view of the conclusion hereinafter stated that the facts in the instant case show that certain essential elements of desertion are lacking, we need not at this time determine which of the foregoing line of cases represents the better view. We are, therefore, not to be understood as now determining whether in establishing constructive desertion, it is necessary for the complaining spouse to show that he or she was compelled to leave the offending spouse because of conduct sufficient in itself to constitute a ground for divorce."
It will be observed that in the case of Machado v. Machado, supra, that the ground of "desertion" included "constructive desertion" and that a spouse who had been so wronged by the other spouse as to require a departure from the home could secure a divorce from the wrongdoer on the ground of desertion, but such was denied in the Machado case because certain elements of desertion were absent. The court specifically reserved its decision on the question of whether constructive desertion may be established on the basis of acts not sufficient in themselves to be grounds of divorce.
In the case of Mincey v. Mincey, 224 S.C. 520, 80 S.E. (2d) 123, 127, in an Opinion by Acting Associate Justice G. Badger Baker, the question reserved in the Machado case, supra, was answered in the negative. In the Opinion in the Mincey case a full discussion is had of the liberal and conservative rules with reference to the granting of a divorce on the ground of constructive desertion. The Court said:
"The liberal rule, holding that the conduct of one spouse compelling the other to leave may justify a divorce to that other on the ground of desertion, even though such conduct *386 is not a ground for divorce, is favored by a majority of the jurisdictions recognizing `constructive desertion.' The conservative doctrine, that is, the acts or omissions must be of themselves, standing independently, sufficient ground for a divorce, has support in many jurisdictions, although in the minority. 27 C.J.S., Divorce, § 36, 17 Am. Jur., Divorce and Separation, Section 98; Annotation, 19 A.L.R. (2d), commencing on page 1428.
"Although the liberal view is supported by respectable authority, and when applied to extreme cases is sound in principle, nevertheless the conservative doctrine is the more productive of the interest of society, the welfare of families, the preservation and promotion of the duties, liabilities and sacredness of the marriage contract and vows."
And again the Court said:
"In order to constitute constructive desertion, the abandoning party seeking to make a technical deserter out of the one abandoned, must establish misconduct on the part of the other in itself, and independently, amounting to one or more of the recognized permitted grounds for divorce. The conduct complained of must in itself be a sufficient cause for divorce, one or more of the four grounds permitted by the constitutional amendment."
Applying the principle announced in the case of Mincey v. Mincey, supra, the appellant is not entitled to a divorce on the ground of constructive desertion, because a year had not elapsed from the date of the desertion to the commencement of this action. Section 20-101(2), 1952 Code of Laws of South Carolina.
The appellant asserts that this court should reinstate the Master's Report as to lump sum alimony and attorney's fees. The record shows by reference to the Order of the Trial Judge that "the question of whether plaintiff is entitled to an order requiring periodic payments by the defendant for her separate maintenance has not been argued by counsel or considered by me." Since the Trial Judge did *387 not pass on the question of whether or not the appellant was entitled to an allowance for her support and maintenance, this court is powerless to do so. Johnson v. Johnson, 194 S.C. 115, 8 S.E. (2d) 351.
It is elementary that where a Circuit Judge has not in anywise passed upon a question asserted in this court, it is not properly before us for decision. Numerous cases so hold, among them being Momeier v. John McAlister, Inc., 190 S.C. 529, 3 S.E. (2d) 606. Richardson v. General Motors Acceptance Corporation, 221 S.C. 14, 68 S.E. (2d) 874. Johns v. Town of Allendale, 204 S.C. 44, 28 S.E. (2d) 533. Nalley v. Metropolitan Life Insurance Company, 178 S.C. 183, 182 S.E. 301.
A review of the exceptions filed to the Master's Report show that nine of such exceptions had to do with the recommendations made by the Master as to alimony and attorney's fees. The order of the Trial Judge, as is above stated, did not pass upon these exceptions nor did he refuse to pass thereon. This being the situation, this court is powerless to make a separate maintenance award or to allow attorney's fees. If the appellant is entitled to such an award, the same can be made, in this action, by the Common Pleas Court of Charleston County.
Quoting again from the case of Machado v. Machado, Supra:
"The causes for which separate maintenance may be granted are not confined to those which constitute grounds for divorce. Accordingly, a court may decree such maintenance although a divorce is denied. Nelson on Divorce and Annulment, 2nd Edition, Vol. 3, Sections 32.10 and 32.12; Sales v. Sales, 222 Ky. 175, 300 S.W. 354; Bradford v. Bradford, 296 Mass. 187, 4 N.E. (2d) 1005; Cochrane v. Cochrane, 303 Mass. 467, 22 N.E. (2d) 6, 138 A.L.R. 341. In actions for divorce, we are limited by the terms of the Constitution. There is no statute in this state undertaking to fix the grounds for separate maintenance and support. This is left to the broad discretion of a court of equity."
*388 The respondent served notice, pursuant to Rule 4, Section 7 of this Court, that he would ask this Court to sustain the judgment of the Trial Judge on the additional ground that the Master failed to certify in his Report that he attempted to reconcile the parties to the action as required by Section 20-110 of the 1952 Code of Laws. Counsel for the appellant and respondent have argued this question in their Briefs. It becomes unnecessary to consider this sustaining ground for the reason that we find the exceptions of the appellant to be without merit. Schumacher (Crawford) v. Chapin (Crawford), 228 S.C. 77, 88 S.E. (2d) 874.
It is the opinion of this Court that the judgment of the Court below was correct and it is affirmed, but the case is remanded for the purpose of permitting the lower Court to pass upon whether or not the appellant is entitled to separate maintenance and attorney's fees. Upon this issue, we express no opinion.
Affirmed and remanded.
STUKES, C.J., and TAYLOR and OXNER, JJ., concur.
LEGGE, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337597/ | 93 S.E.2d 66 (1956)
244 N.C. 149
In the Matter of John GAMBLE, Respondent.
No. 243.
Supreme Court of North Carolina.
May 23, 1956.
*67 Sedberry, Clayton & Sanders and Hugh M. McAulay, Charlotte, for respondent-appellant.
William H. Booe and Blakeney & Alexander, Charlotte, for petitioner-appellee.
PARKER, Justice.
The petition filed herein on 1 August 1955 by J. Arthur Gamble, a nephew of the respondent John Gamble, alleges that John Gamble is incompetent from want of understanding *68 by reason of physical and mental weakness on account of old age to manage his affairs, that recently he has committed great waste of his estate by purported sales and conveyances of his property and by gifts of substantially all his money, and prays that a trustee be appointed to preserve his estate and to recover this property.
Petitioner's evidence tends to show that on 26 March 1955 the respondent conveyed by three deeds all of his real estate to Carrie Donaldson Knox as gifts, subject to a life estate in all the property reserved to himself. John Gamble, who was examined as a hostile witness by petitioner, testified that he had raised Carrie Donaldson Knox from a child two years old, that she had lived with him 20 or 25 years, and had done more for him than all his kinsfolk put together.
The petitioner J. Arthur Gamble testified as a witness in behalf of the petition. On recross-examination he testified as follows: He did not know whether his Uncle John had made a last will and testament in which he left substantially all his property to him and his brother James. He doesn't remember that he testified in the other hearing that that was true. He and his brother brought John Gamble to Mr. Alexander's office, that he knew his uncle did have a will, and he knew that John Gamble left something with Mr. Alexander for Mr. Alexander to deposit with the Clerk of the Superior Court. He believes the will was written by a lawyer in Statesville, but he was not present when it was written, and does not know its contents. On crossexamination Arthur Gamble testified: "My whole purpose is not to try to get my old uncle declared mentally incompetent, then to have a proceeding brought through a trustee to set aside the deeds to Carrie Donaldson Knox, so that I and my brother can get that land. I am just looking after his interest in it. I want some way to take care of his interest in the land for his benefit, not mine." Later on in the trial Arthur Gamble was recalled as a witness, and testified: "I know that something was deposited with the Clerk of the Court called a will, but I do not know the contents of it."
Henry Washam, a witness for the respondent, testified that in the hearing before the Clerk of the Superior Court he heard J. Arthur Gamble testify to the following: "Well, this will was brought up, he mentioned that he and his brother James, about them being on that will. I can't remember whether Arthur said he read the will or not. What I heard him say was that he and his brother James were mentioned in the will."
The petitioner read to the jury a transcript of the testimony of John Gamble, the respondent, when he was examined as an adverse witness by petitioner in the hearing before the Clerk. The Court allowed it to be read for the purpose of showing John Gamble's mental condition at the time. This appears in his direct examination by Mr. Alexander, counsel for petitioner:
"Q. Yes, sir; well, now, let's go back to 1940 and 1944 and in there; did you make a will back in those days leaving everything to Arthur? A. Not as I know of.
"Q. You don't recall it at all? A. No, sir.
"Q. Do you recall bringing that will to me in my office, yourself, and handing it to me, and asking me to deposit it in the will depository in the Office of the Clerk of Superior Court several years ago? No answer."
After the jury was impanelled the respondent made a motion that the Clerk of the Superior Court of Mecklenburg County be permitted or required to deliver to the respondent a will of John Gamble filed with him for safekeeping. Counsel for respondent stated that a subpoena duces tecum had been issued for the Clerk requiring him to bring the will in court; that the respondent had gone to the Clerk and asked him to deliver the will to him, which the Clerk declined to do on the ground that he was required to bring the will in court in compliance with the subpoena duces tecum. Upon objection by petitioner the court, in *69 its discretion, denied the motion to allow respondent's counsel to examine the paper writing filed with the Clerk on 1 July 1952 having written on the face of the sealed envelope with a typewriter "Will of John Gamble." The respondent excepted, and assigns this as error. Respondent then made a motion that he be allowed to examine the contents of the sealed envelope. The court denied the motion, holding as a matter of law that the paper writing is incompetent, and would not be admitted in evidence. The respondent excepted, and assigns this as error. Respondent then moved that he be permitted to examine the will, but let it remain in the custody of the court. The court denied this motion, and respondent excepted, and assigns it as error.
When nearly all the evidence had been introduced, J. Lester Wolfe, Clerk of the Superior Court of Mecklenburg County, was called as a witness by the respondent. A subpoena duces tecum signed by the presiding judge was served on him by the Sheriff. Respondent's counsel asked him this question: "Mr. Wolfe, do you have any papers at all belonging to Mr. John Gamble, or any papers that were delivered to you on behalf of John Gamble for safekeeping?" The witness replied: "I do. What I have is a sealed envelope. I have that in my possession." Court: "What does it have on the outside of it, Mr. Wolfe?" Answer: "It just says `Will,' written at the top, `John Gamble.' It's typewritten." Mr. Wolfe testified that he also had some deeds and other things of John Gamble, which had been put in evidence. The respondent offered the subpoena duces tecum in evidence. Petitioner objected, and moved that it be quashed. The court allowed petitioner's motion, and the respondent excepted, and assigns error. Respondent then moved for permission of the court to inspect the paper in the sealed envelope which the Clerk had in his possession. The motion was denied, and the respondent excepted and assigns this as error. The respondent then moved that he be permitted to make a copy of this paper. The court denied the motion, and the respondent excepted, and assigns error. The court said it denied the motions in its discretion.
The petitioner J. Arthur Gamble testified that he and his brother James brought his Uncle John Gamble to Mr. Alexander's office, that he knew his uncle had a will, and left something with Mr. Alexander, for Mr. Alexander to deposit with the Clerk of the Superior Court. He also testified he knew something was deposited with the Clerk of the Court called a will. Henry Washam testified that in the hearing of this proceeding before the Clerk of the Superior Court J. Arthur Gamble testified that he and his brother James were mentioned in the will. It is also significant that Mr. Alexander, counsel for petitioner, in examining John Gamble as a hostile witness in the hearing before the Clerk asked him didn't he in 1940 or 1944 "and in there" make a will back in those days leaving everything to Arthur Gamble. John Gamble, now 89 years old, replied not as I know of. It appears that John Gamble had forgotten the contents of the will inquired about, which he had left with Mr. Alexander to deposit with the Clerk. Petitioner did all he could, and successfully, to keep from the knowledge of the jury the contents of this will. It seems that respondent can draw the fair inference from the evidence that petitioner knew the contents of the will, and that he was named therein as sole, or a principal, devisee and legatee, and that his principal object in bringing this proceeding was to have his Uncle declared incompetent and to set aside the deeds to Carrie Donaldson Knox, so that he could inherit under the will. The petitioner, on cross-examination by respondent's counsel, denied that his whole purpose in bringing this proceeding was to try to get his old uncle declared mentally incompetent, then to have a proceeding brought through a trustee to set aside the deeds to Carrie Donaldson Knox, so that he and his brother James could get John Gamble's lands, and asserted that his purpose was to protect John Gamble's interest, not his.
These questions arise: One, was the answer of petitioner, that it was not his purpose in bringing the proceeding to get his *70 old uncle declared mentally incompetent, and then to have a proceeding brought by a trustee to set aside the deeds to Carrie Donaldson Knox, so that he and his brother could get the lands of his uncle, but to take care of his uncle's interests, conclusive, and could not be contradicted by other evidence? Two, did the refusal of the Court to permit respondent to open and see the contents of the sealed envelope, marked Will of John Gamble, filed with the Clerk, impair, if not prevent, a reasonable crossexamination of petitioner by respondent's counsel as to petitioner's pecuniary interest in the proceeding for the purpose of impeaching his credibility as a witness?
Ordinarily, the answer of a witness on cross-examination concerning collateral matters for purposes of impeachment is conclusive, and he may not be contradicted by other evidence. State v. Patterson, 24 N.C. 346; Clark v. Clark, 65 N.C. 655; Burnett v. Wilmington, N. & N. Ry. Co., 120 N.C. 517, 26 S.E. 819; State v. Roberson, 215 N.C. 784, 3 S.E.2d 277; 3 Jones on Evidence, Civil Cases, 4th Ed., Sec. 827. However, the rule seems to be well settled that, on cross-examination, questions which tend to impeach the impartiality of a witness, e. g. bias, interest, favor, animus, hostility, prejudice, disposition, in relation to the cause or the parties, are not irrelevant to the issue in the sense that the cross-examiner is concluded by the answer. His answers as to such matters are not deemed conclusive, and may be contradicted by other evidence. State v. Patterson, supra; Cathey v. Shoemaker, 119 N.C. 424, 26 S.E. 44; Scales v. Lewellyn, 172 N.C. 494, 90 S.E. 521; State v. Hart, 239 N.C. 709, 80 S.E.2d 901, 41 A.L.R.2d 1199; 5 Jones, Commentaries on Evidence, 2d Ed., pp. 4614-15; 3 Jones on Evidence, Civil Cases, 4th Ed., Sections 828-829; 2 Wigmore on Evidence, 2d Ed., Sec. 948. A trial would have little safety and be unduly perilous, if an unscrupulous witness could conclude the adverse party by his statements denying his prejudice or interest in the controversy.
This Court said in State v. Roberson, supra [215 N.C. 784, 3 S.E.2d 279]: "Latitude is allowed in showing the bias, hostility, corruption, interest or misconduct with respect to the case or other facts tending to prove that the testimony of the witness is unworthy of credit." This is sound law for the range of external circumstances from which probably bias, interest, prejudice, etc. may be inferred is infinite. Too much refinement in analyzing and classifying their probable effect is out of place. Accurate rules would seem impossible to state, and if possible, usually undesirable. In general, the circumstances should have some clearly apparent force, as tested by experience of human nature, and should not be too remote or uncertain. 2 Wigmore on Evidence, 2d Ed., Sec. 949.
If evidence which would clearly show bias, interest, prejudice, etc., on the part of a witness is excluded by the Court, it is error, and may be ground for a new trial. State v. Roberson, supra; 3 Jones on Evidence, Civil Cases, 4th Ed., Sec. 829.
Cross-examination is the right of the party against whom a witness is called, and the right is a valuable one as a means, among other things, of testing the impartiality of the witness as to whether he is biased or influenced by interest in respect to the cause or parties. The Ottawa, 3 Wall. 268, 18 L.Ed. 165, 167. It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he cannot state to the court what facts a reasonable cross-examination might develop.
It seems clear that the object of respondent's counsel in seeking to open and examine the sealed envelope, marked "Will of John Gamble," was for the purpose of impeaching the credibility of the testimony of petitioner, by cross-examining petitioner in respect to his pecuniary interest as a devisee and legatee under the will, and by introducing it in evidence to show that he was a devisee and legatee under the will, as tending to show the pecuniary interest of petitioner in the proceeding, in that, if he could have John Gamble declared incompetent, and could set aside the deeds to *71 Carrie Donaldson Knox, he would obtain all, or a large part, of John Gamble's property under his will made several years before and not to be successfully assailed on the ground of lack of mental capacity of the testator. It is a well known rule of appellate practice that the burden is upon the appellant to show prejudicial error. Johnson v. Heath, 240 N.C. 255, 81 S.E.2d 657. As a general rule, the exclusion of evidence cannot be reviewed on appeal, when the record does not disclose what the excluded evidence would have been, so that the appellate court can determine whether or not its exclusion was prejudicial. State v. Poolos, 241 N.C. 382, 85 S.E.2d 342; 4 C.J.S., Appeal and Error, § 291, pp. 580-583; 3 Am.Jur., Appeal and Error, Sec. 354.
However, in this proceeding the appellant could not place in the record the contents of the sealed envelope, marked "Will of John Gamble," because by the court's rulings he could not open the sealed envelope and inspect its contentsthe court quashed his subpoena duces tecum served upon the Clerkand he could not show the contents of the will orally by John Gamble, who apparently had forgotten about it. That the sealed envelope contained a will of John Gamble seems clear. The court's rulings impaired respondent's right to a reasonable cross-examination of petitioner as to his interests under the will, a subject tending to show his interest in the proceeding, and prevented respondent from offering the will in evidence for the same purpose. It cannot be said that the court's rulings in refusing the motions of respondent to inspect the will in the sealed envelope are harmless error. The rulings permitted petitioner to represent himself to the jury as a nephew solely interested in protecting and recovering his old Uncle's property for his old Uncle, and not for his own hoped for benefit. The jury might well have discounted petitioner's evidence, if it had appeared that he was the sole, or a principal, devisee and legatee under his old Uncle's will executed several years before. In Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 219, 75 L.Ed. 624, the Court said: "Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them."
We still adhere to the general rule stated in State v. Poolos, supra, that to present a question for review the excluded evidence must appear in the record, but we do not think that it should be applied to the particular facts presented here, where it seems plain that the sealed envelope contains a will of John Gamble, which he left with Mr. Alexander to file with the Clerk, and where it appears that petitioner knew a will of his Uncle was deposited with the Clerk, that Henry Washam testified that in the hearing before the Clerk petitioner testified he and his brother James were mentioned in the will, and that Mr. Alexander, petitioner's counsel, asked respondent in 1940 and 1944 and in there "did you make a will back in those days leaving everything to Arthur," and when the efforts of respondent to open the sealed envelope and inspect the will were to impeach the credibility of petitioner's testimony on the ground of interest in the proceeding.
Petitioner in his brief relies upon G.S. § 8-89Inspection of Writingsto support the court's rulings. It does not apply here. Petitioner further relies upon G.S. § 31-11, which permits persons to file their wills with the Clerk of the Superior Court for safekeeping, and provides that the Clerk "shall, upon written request of the testator, or the duly authorized agent or attorney for the testator, permit said will or testament to be withdrawn from said depository or receptacle at any time prior to the death of the testator", and contends respondent has not complied with this statute. However, respondent was not seeking to withdraw his will, but merely to see and inspect it. The proviso of this statute provides that the contents of the will shall not be open to the inspection of any one other than the testator or his duly authorized agent until such time as the said will shall *72 be offered for probate. The court's rulings prevented John Gamble and his counsel from inspecting his will, which the statute says he can do.
In our opinion, and we so hold, the ruling of the court denying respondent's motions to open the sealed envelope, marked "Will of John Gamble," and to inspect the will therein, so that it could be used by respondent's counsel as tending to impeach the petitioner as a witness on the ground of his pecuniary interest in the proceeding, necessitates a
New trial.
DEVIN, J., took no part in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263777/ | 479 F.Supp. 65 (1979)
Margaret L. HITCHCOCK
and
Wilbur W. Hitchcock
v.
UNITED STATES.
Civ. A. No. 1138-77.
United States District Court, District of Columbia.
July 27, 1979.
M. Elise Haldane, Robert C. Liotta, Washington, D. C., for plaintiffs.
Stephen S. Cowen, Asst. U. S. Atty., W. Russell Welsh, Atty. U. S. Dept. of Justice, Civil Division, Washington, D. C., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
OBERDORFER, District Judge.
I. Findings of Fact[1]
1. Wilbur Hitchcock has served as an officer in the Foreign Service of the Department *66 of State ("the Department") since 1954. Mr. Hitchcock has been married to his wife, Margaret, for 35 years. Mrs. Hitchcock has accompanied Mr. Hitchcock on all of his overseas assignments with the Foreign Service. Prior to his present assignment in Buenos Aires, Argentina, Mr. Hitchcock was stationed in Quebec, Canada, where he was accompanied by his wife.
2. In 1972 Mr. Hitchcock was assigned to the United States Consulate in Buenos Aires, Argentina by the Department as Deputy Chief of Mission. Mrs. Hitchcock planned to accompany him to Buenos Aires and to perform the public functions expected of a Foreign Service Officer's wife by the Department. At the time, the wives of Foreign Service Officers were expected to contribute to their husbands' careers.
(Testimony of Mr. and Mrs. Hitchcock.)
3. In May and June, 1972, Mr. and Mrs. Hitchcock reported to the Foreign Service Institute in Rosslyn, Virginia, to receive a series of inoculations required or recommended by the Department for Foreign Service personnel assigned to Buenos Aires, Argentina. The Foreign Service Institute is a facility operated for and by the Department.
4. In May and June, 1972, the Department routinely administered duck embryoderived antirabies vaccine ("DEV") as pre-exposure prophylaxis for Foreign Service personnel assigned to Buenos Aires, Argentina, and to other particular stations. The DEV was routinely administered by a nurse, with no physician present.
(Testimony of Mr. and Mrs. Hitchcock and Dr. Martin Wolfe, Department of State Office of Medical Services.)
5. The DEV pre-exposure prophylaxis administered at the Foreign Service Institute to Mr. and Mrs. Hitchcock consisted of two injections of DEV (one cc. per injection) with an interval of approximately one month between injections. A third injection or "booster" was to be given six or seven months later. This fact was noted on Mrs. Hitchcock's immunization record (Plaintiffs' exhibit 13).
Mrs. Hitchcock received the first injection of DEV on May 17, 1972; she received the second injection of DEV on June 13, 1972. Mrs. Hitchcock did not receive a third "booster" injection.
Mrs. Hitchcock was not tested shortly after her vaccination to determine whether the DEV in her system had been effective in producing rabies antibody. Such a test is called an "antibody titer." Mrs. Hitchcock's first antibody titer was taken in 1975 by a private physician. See pp. 72-73, infra.
(Testimony of Mr. and Mrs. Hitchcock; Plaintiffs' exhibits 13 and 59(c); Defendant's exhibit 8.)
6. On neither occasion of Mrs. Hitchcock's vaccinations with DEV did the Department, the Foreign Service Institute, or their agents inform her of the probability and degree of harm attendant upon vaccination with DEV or of the possible benefits to be derived from such vaccination. A nurse employed by the Foreign Service Institute in 1972, Nurse Martha Richioppi, testified that although she did not know what information was provided Mr. and Mrs. Hitchcock at the time they were given the DEV, it was standard procedure to give patients receiving DEV no information regarding the incidence and severity of possible *67 side-effects nor the potential benefits to be gained from taking DEV as pre-exposure rabies prophylaxis. It was routine, however, to inquire whether the patient had any allergies and to invite the patient to wait twenty minutes after the vaccination to observe any allergic reactions. Neither Mr. or Mrs. Hitchcock recalls that such a procedure was used with them and there was no direct proof adduced to the effect that such a procedure was used in their case.
There was also no evidence that personnel administering the DEV to Mr. and Mrs. Hitchcock disclosed that the manufacturer of DEV recommended that each inoculee obtain an antibody titer soon after vaccination to determine the effectiveness of the vaccination. See pp. 72-73, infra. Defendant adduced no evidence to establish that the Department itself provided for the taking of rabies antibody titers.
(Testimony of Mr. and Mrs. Hitchcock and Nurse Martha Richioppi).
7. After the first injection with DEV in May, 1972, Mrs. Hitchcock noted a "tiredness" and "heaviness" in her legs. After the second injection with DEV in June, 1972, she again noticed that her legs felt tired and heavy; she also noticed that she was having difficulty getting up and down stairs. Mrs. Hitchcock began experiencing numbness in her hands in February, 1973; by May, 1973, her legs and waist were numb; the feelings of tiredness progressed. By December, 1974, Mrs. Hitchcock could walk only slowly and with some difficulty. In an undated report of her medical history through February, 1974, she wrote that without special padding in her shoes, "I feel as if my bones are coming through my feet." Defendants' exhibit 8. Mrs. Hitchcock's symptoms progressed, and by May, 1978, she was confined to a wheelchair. At present, Mrs. Hitchcock can stand for about five minutes and only with assistance. She is no longer able to perform the functions of a Foreign Service Officer's wife. She suffers from a progressive demyelinating disease,[2] which has caused paralysis, pain, numbness, limitation of physical movement, mental anguish, inability to work or to do housework, and loss of enjoyment of life. She is permanently and totally disabled.
Mr. Hitchcock suffered no similar effects after the DEV injections.
(Testimony of Mr. and Mrs. Hitchcock and Dr. Ernesto Herskovits, an expert neurologist and Mrs. Hitchcock's treating physician since 1974; Plaintiff's exhibits 3 and 4; Defendant's exhibits 8, 9, 35 and 36.)
8. Prior to the DEV injections in May and June, 1972, Mrs. Hitchcock was a relatively healthy, fifty-one year old woman. (Testimony of Margaret Hitchcock; Defendants' exhibits 5, 6, 7 and 8.)
9. On November 2, 1954, Mrs. Hitchcock was examined by an opthalmologist for a complaint of blurred vision in her right eye. Examination at that time revealed central serous retinitis. The blur later cleared slightly but vision was not as bright in the right eye as in the left eye. (Defendant's exhibit 32.)
10. The symptoms of serous retinitis are identical to those of optic neuritis. It has only been in recent years, with the invention of the indirect opthalmoscope and fluroscein angiography, that the two conditions can be distinguished. Those techniques were not available in 1954 and were not performed on Mrs. Hitchcock at that time. Optic neuritis is a very common early symptom of multiple sclerosis. (Defendant's exhibits 32 and 35; Plaintiffs' exhibit 4.)
11. A visual evoked response test was administered to Mrs. Hitchcock in 1979. The findings of this test are highly suggestive of an optic nerve dysfunction of the demyelinating type. A localized retina problem, such as central serous retinopathy, should not affect the visual evoked response. Although multiple sclerosis frequently involves the optic nerve, a demyelinating disease that is not multiple sclerosis could also involve dysfunction of the optic *68 nerve. (Testimony of Drs. Herskovits and Schulein; Defendant's exhibit 34.)
12. Mrs. Hitchcock's symptoms closely resemble multiple sclerosis.[3] Several doctors have diagnosed her disease as multiple sclerosis. Multiple sclerosis is a demyelinating disease for which there is no known cause or cure. (Testimony of Drs. Herskovits and Schulein.)
13. DEV is an antirabies vaccine introduced in 1955 and licensed for use in the United States in 1957. DEV was developed by Eli Lily and Company as an alternative to older nervous tissue vaccine ("NTV"). Serious post-vaccinal neurologic reactions to NTV, including paralysis and death, are not uncommon and make its use hazardous." (Plaintiff's exhibit 15, at 643.) For example, the rate of death for persons immunized with NTV has been estimated at 1 to 35,000. DEV is a suspension of 10% duck embryo tissue infected with a fixed virus and then inactivated. DEV is thought to contain little or none of the "paralytic factor" that causes paralysis and death after treatment with NTV. The identity of the "paralytic factor," however, is not known with certainty. DEV has been described as "markedly reducing" the hazard of post-vaccinal neurologic complications and as "relatively safe". Nevertheless, because DEV contains duck embryo protein, it is capable of causing neurologic reactions similar to NTV.
(Plaintiffs' exhibits 15, 22, and 59(c); Defendant's exhibits 26 and 27; deposition of Dr. Stanley Plotkin, an expert on rabies and rabies vaccine, May 10, 1979 at 23-24.)
14. Defendant's Duty to Inform: Risk. In May and June, 1972, defendant United States and its agents knew, or should have known, that there existed some risk of serious neurologic reaction in a patient treated with multiple injections of DEV as pre-rabies exposure prophylaxis.
This finding is based on testimony offered at trial and on information contained in the following materials of which defendant and its agents knew, or should have known, in May and June, 1972:
A. The DEV product information sheet dated April 5, 1972, prepared by Eli Lily and Company, the manufacturer of DEV, and distributed with the vaccine does not state that there is no risk of paralysis or other serious neurologic reaction to DEV, but rather ambiguously advises that DEV
"contain[s] little or none of the `paralytic factor' . . .."
The product information sheet does not unconditionally recommend a post-exposure DEV prophylaxis, notwithstanding the fact that if rabies develops it will almost certainly be fatal:
Postexposure ImmunizationIndications for and against giving rabies vaccine are difficult to define. In favor of giving it is the fact that, if rabies develops, it will almost certainly have fatal results. Against giving it is the danger of development of severe side-effects involving the central nervous system when the vaccine contains brain tissue . . . the incidence of neurological side-effects has been low with the use of duck embryo vaccine.
The product information sheet describes certain reported cases of adverse reaction to the post-exposure series of DEV:
ADVERSE REACTIONS
* * * * * *
In connection with the administration of about 90,000 fourteen-dose [post-exposure] courses of duck-embryo vaccine there have been reports of two patients with symptoms suggesting encephalitis and two with transverse myelitis. All four patients recovered completely. If symptoms appear that indicate central-nervous system involvement, vaccine injections should be discontinued.
(Plaintiffs' exhibit 59(c).)
B. The minimum post-exposure DEV series in 1972 consisted of one injection daily *69 for fourteen days. The pre-exposure series used by the Department in 1972 consisted of three injections: the first two given one month apart, and the third "booster" to be given seven months later. The only difference between the pre- and post-exposure series is the quantity of the vaccine administered.
(Plaintiffs' exhibits 71 and 59(c).)
C. The "Recommendation of the Public Health Service Advisory Committee on Immunization Practices" (October, 1969), advises, in part, that:
The problem of whether or not to immunize those bitten or scratched by animals suspected of being rabid is a perplexing one for physicians. All available methods of systemic treatment are complicated by numerous instances of adverse reactions, a few of which have resulted in death or permanent disability
. . . . .
The relatively low frequency of reactions to DEV has made it more practical to offer pre-exposure immunization to persons in high-risk groups . . .. (Emphasis added.)
(Defendant's exhibit 26.)
D. A letter dated September 25, 1970, from Dr. Michael Hattwick, a rabies expert for the Center for Disease Control located in Atlanta, Georgia, addressed to Dr. Martin Wolfe, Department of State, advises, among other things, that while serious reactions to DEV pre-exposure prophylaxis have been observed to occur less frequently than serious reactions to DEV post-exposure prophylaxis, such reactions, although not common, do occur:
Reactions to duck embryo vaccine are of several types most conveniently minor reactions, neurological reactions, and true allergic reactions . . .. Neuroparalytic reactions have been described only after the post-exposure treatment of rabies. There does not seem to be any significant risk of neuroparalytic reactions to the pre-exposure prophylaxis schedule . . ..
It must be stressed that serious reactions to rabies pre-exposure prophylaxis are not common. In areas where the potential exposure to rabies is high as it apparently is in the Karachi [Pakistan] area, the unlikely possibility of allergic reactions should not prevent vaccination of persons at high risk.
(Defendant's exhibit 17.)
E. Prussin & Katabi, "Dorsolumbar myelitis following antirabies vaccination with duck embryo vaccine", Annals of Internal Medicine, 60: 114-116 (1964), reporting a case of transverse myelitis after injection with DEV in a post-exposure series. (Reference at Plaintiff's exhibit 15, n. 14.)
F. Harrington & Olin, "Incomplete transverse myelitis following rabies duck embryo vaccination", Journal of the American Medical Association, 216: 2137-2138 (1971), reporting a case of transverse myelitis after treatment with DEV during a post-exposure series. The article also notes that:
The Public Health Service has reported that neurologic complications with rabies duck embryo vaccine occurred in 1 per 25,000 cases, with one death in 225,000 persons immunized.
Neurologic side-effects of DEV in 1 per 25,000 cases may be compared with the estimate of deaths resulting from NTV vaccination in 1 per 35,000 cases. NTV has been described as "hazardous." See p. 68, supra (Plaintiffs' exhibit 22.)
G. Shiraki, Hirotsugu, "The Comparative Study of Rabies Postvaccinal Encephalomyelitis and Demyelinating Encephalomyelitides of Unknown Origin, with Special Reference to the Japanese Cases" (1968).
This paper states, among other things, that there were 41 cerebral encephalomyelitic reactions to post-exposure series of NTV in Japan from 1947 to 1959. In 48 examples of the spinal form there were 5 fatalities, 19 incomplete recoveries and 24 complete recoveries. Among the 41 cases of the cerebral form there were 8 fatalities, 27 incomplete recoveries and 6 complete recoveries. It appears that no report of the more severe cerebral form of the disease had *70 appeared in the Western literature, at least at the time this earlier article was written.
The article concludes:
It is clear that the morphologic characteristics of both [spinal and cerebral] forms of rabies post-vaccinal encephalomyelitis have important similarities to features of acute multiple sclerosis. (at 177) (Emphasis added.)
These features include involvement of the cerebral hemispheres, the optic nerve, brain stem and spinal cord.
(Plaintiffs' exhibit 53.)
H. Rubin, Hattwick, Jones, Gregg and Schwartz, "Adverse Reactions to Duck Embryo Rabies Vaccine" (1973).[4] This article compiles and comments upon retrospective reports of side-effects resulting from DEV vaccination during the period 1958 to 1971 and prospective studies of DEV side-effects begun in 1969 and conducted by the Center for Disease Control in Atlanta, Georgia. The research of the Center for Disease Control revealed that, although the incidence of serious reactions, including neuroparalytic reactions, to DEV is significantly less than similar reactions to NTV, DEV is only "relatively safe." The relatively low risk of serious reactions to DEV has made it possible to introduce a pre-exposure prophylaxis for individuals such as veterinarians and animal handlers, who are "significantly at risk of being exposed to rabies."
The article states that:
Serious reactions to [DEV] are relatively rare; only four neurologic complications and one death were reported in the first 50,000 treated individuals . . .. [The] relative safety [of DEV] has made possible the introduction of preexposure prophylaxis for such individuals as veterinarians and animal handlers, who are significantly at risk of being exposed to rabies. [at 643.]
Approximately 424,000 persons in the United States received DEV between 1958 and 1971. Minor neurologic reactions to DEV were reported in one hundred thirty-seven cases; symptoms included listlessness, increased fatiguability or sleepiness. Major neurologic reactions, defined as "major neurologic dysfunction lasting more than 4 days, beginning within 6 weeks of vaccination and with no clear causative agent known", were reported in thirteen cases. All of the reported cases had onsets between 3 and 16 days after initiation of the vaccine series. Four cases of transverse myelitis were reported after use of DEV in patients 20 to 56 years of age; symptoms were similar in all patients: "painless, flaccid paraplegia; loss of reflexes in the legs; bladder paralysis and obstipation; sensory loss at a spinal level; and temperature as high as 38.9 °C [102 °F]." [at 645.]
The estimated incidence of major neurologic reactions to DEV based on retrospective reports from 1958 to 1971 is 3.1 per 100,000 vaccinees. No neurlogic reactions *71 to DEV were observed in prospective studies of preexposure prophylaxis in an initial group of 1,679 veterinary students and Peace Corps volunteers or of postexposure prophylaxis in 116 patients. All reported neurologic reactions began 3 to 16 days after the first dose and all but one occurred during postexposure therapy. [at 648.]
(Plaintiffs' exhibit 15.)
I. At a deposition taken on May 10, 1979, Dr. Plotkin, an expert on rabies and rabies vaccines, testified that:
Q. Now, isn't it a fact, Doctor, that some reactions to the duck embryo vaccine as known based on knowledge in 1972 resulted in permanent neurological damage?
A. . . . [C]ertainly it was considered in 1972 as it is now, that there are infrequent neurologic reactions to duck embryo vaccine.
Q. And these could be of a permanent
A. Now, . . . I remember specifically that of the four cases of encephalitis, two died and two recovered, leaving none with permanent damage, so to speak.
(Plotkin deposition at 51-52.)
15. Defendant's Duty to Inform: Potential Benefits. The benefits of DEV pre-exposure prophylaxis to Mrs. Hitchcock, a fifty-one year old woman preparing to accompany her husband to live in Buenos Aires, Argentina were relatively minor.
This finding takes into account that a significant percentage of animal rabies cases reported in Argentina during the period 1970 to 1974 involved agricultural animals (animals not likely to be encountered by the wife of a Foreign Service Officer residing in the city of Buenos Aires); that the number of cases of human rabies from 1970 through 1974 averaged approximately seven cases per year for the entire country of Argentina; that rabies rarely occurs unless an individual has been bitten and, if bitten, that a complete post-exposure series of DEV injections may well be required, just as if no pre-exposure series had been given.
The foregoing is supported by testimony given at trial and the following evidence:
A. The incidence of rabies in humans in Argentina during the period 1970 to 1974 was:
1970: 11-13 cases
1971: 2 cases
1972: 1-2 cases
1973: 12 cases, 8 of which occurred in metropolitan
Buenos Aires
1974: 7 cases, 6 of which occurred in metropolitan
Buenos Aires
The population of metropolitan Buenos Aires in 1976 was approximately seven million.
In 1970, approximately 22.6% of reported rabies in animals in Argentina occurred in farm animals. In 1973, this figure was approximately 8.5%.
(Stipulation of June 28, 1979; Defendants' exhibits 20, 22 and 46.)
B. The product information sheet for DEV prepared by Eli Lily and Company and dated April 5, 1972, states among other things, that the following factors should be taken into account in determining whether to administer post-exposure DEV prophylaxis:
(1) Approximately 20 percent of persons who are bitten by animals known to be rabid have developed rabies if not treated with rabies vaccine, and (2) rabies rarely occurs unless the individual actually has been bitten by the animal.
With respect to the prophylactic value of pre-exposure vaccination with DEV in light of an actual exposure to rabies, including exposure due to a suspected but not confirmed rabies carrier, the manufacturer explains that:
If mild exposure [including, e.g., a lick on abraded skin or on mucosal surfaces, or single bites not on the head, neck, face or arm] occurs, individuals in whom rabies antibody has been determined to be present can be given a single 1-ml. booster dose of vaccine. If exposure is severe [including e. g., multiple bites or single bites on the head, neck, face, or arm] or *72 due to bites of wild animals, the usual postexposure immunization [of 14 injections of DEV] . . . should be followed (see Indications). (Emphasis in original.)
(Plaintiffs' exhibit 59(c).)
C. A document entitled "UNIFORM STATE/AID/USIA REGULATIONS, POLICIES AND PROCEDURES FOR IMMUNIZATIONS", 3 FAM 680, Appendix A, dated 4-22-71, states, among other things, that:
Special Information: Important in case of exposure to an individual who has received this pre-exposure [DEV] immunization; the usual post-exposure [series] . . . should be given. (Emphasis in original.)
(Defendant's exhibit 13.)
D. A document entitled "IMMUNIZATION GUIDE FOR EMPLOYEES AND THEIR DEPENDENTS TRAVELING OR RESIDING IN FOREIGN COUNTRIES, dated April, 1971, contains a summary of the recommendations governing vaccinations offered without charge by the Immunization Clinic of the Department of State. This document states, in part, that:
[A] pre-exposure immunization . . does not preclude the necessity of obtaining a series of injections in the event of subsequent exposure to a rabid animal.
(Plaintiffs' exhibit 71.)
16. Defendant's Duty to Inform: Diminished Benefits. The potential benefits of DEV pre-exposure prophylaxis to Mrs. Hitchcock were further severely attenuated because the Department and the Office of Medical Services failed to disclose to Mrs. Hitchcock that any future benefit to her from the pre-exposure prophylaxis depended upon her taking a test (termed an "antibody titer") to determine the production of rabies antibody in her system. Without a subsequent antibody titer, a vaccinee receiving the DEV pre-exposure series would be required to receive the entire post-exposure series after any exposure to rabies, whether severe or mild. See plaintiffs' exhibit 59(c) quoted at ¶ A, infra.
Mrs. Hitchcock was not informed of the existence of or the necessity for a subsequent antibody titer in May or June, 1972, although she was informed at those times of the requirement that she subsequently receive a third "booster" injection of DEV six or seven months later and this was noted on her immunization record (Plaintiffs' exhibit 13). Nor did the Department provide for administration of antibody titers. Mrs. Hitchcock did not receive an antibody titer until 1975, when it was administered by a private physician, not the defendant.
These findings are supported by testimony at trial and the following evidence:
A. The Eli Lily and Company product information sheet for DEV, dated April 5, 1972, provides, in part, that:
Preexposure Immunization . . . Because the antibody response is not 100 percent, an antibody titer must be determined after the course of immunization. (Emphasis in original.)
The product information sheet conditions the limited benefit of DEV pre-exposure prophylaxis, which benefit is itself confined to "mild" exposure to rabies,[5] on a determination, prior to exposure, that the exposed individual has developed rabies antibody:
If mild exposure [including e. g., a lick on abraded skin or on mucosal surfaces, or single bites not on the head, neck, face or arm] occurs, individuals in whom rabies antibody has been determined to be present can be given a single 1-ml. booster dose of vaccine. (Emphasis added.)
(Plaintiffs' exhibit 59(c).)
B. A document entitled "Recommendation of the Public Health Service Advisory Committee On Immunization Practices", dated October, 1969, advises medical personnel, in part, that:
All who receive pre-exposure vaccination should have their serum tested for *73 neutralizing antibody 3 to 4 weeks after the last injection. . . . If it is not known whether an exposed person had antibody, the complete post-exposure antirabies treatment should be given.
(Defendant's exhibit 26.)
C. Neither the Immunization Guide prepared by the Immunization Clinic of the Department of State (Plaintiffs' exhibit 71), the Procedures Memorandum of the Office of Medical Services, Department of State (Defendant's exhibit 13) nor any other evidence (including testimony) received at trial, indicates that the Department of State made available post-immunization rabies antibody tests for DEV vaccinees or advised vaccinees to obtain such a test privately.
D. Mrs. Hitchcock's first antibody titer against rabies was performed privately (not by defendant) in 1975, three years after her vaccination. (Plaintiffs' exhibit 10 to the Plotkin deposition; testimony of Mrs. Hitchcock.)
17. With Adequate Disclosure, A Reasonable Person In Mrs. Hitchcock's Circumstances Would Have Declined DEV Pre-exposure Prophylaxis. Adequate disclosure of the risk of neurologic side-effects weighed against the potential benefits of receiving only marginal protection against rabies infection while residing in Buenos Aires, Argentina, could reasonably be expected to have persuaded a person in Mrs. Hitchcock's circumstances to have declined DEV pre-exposure prophylaxis in May and June, 1972.
The point of departure for analysis of this issue is the advice repeated in the literature that DEV's "relatively low" frequency of serious reactions makes it "more practical" to prescribe in a pre-exposure series for certain "high risk" individuals; i. e., individuals for whom rabies is a "constant threat", such as veterinarians, spelunkers and laboratory personnel working with rabies virus.
A reasonable person would not have concluded that Mrs. Hitchcock, a then fifty-one year old woman, planning to live in the embassy section of the city of Buenos Aires, was a "high risk" individual for whom rabies was a "constant threat."[6] Nor did Mrs. Hitchcock's position sufficiently resemble such an individual so that she could have reasonably anticipated circumstances which could justify her assuming the risks of taking the DEV pre-exposure series. (The only difference between the pre-exposure immunization and the post-exposure immunization is quantitative: two to three doses, one month apart, versus 14 doses over a longer period of time.) The "relatively low" risk of serious side-effects with DEV including severe neurologic side-effects such as paralysis and death is not the kind of risk that a reasonable person would take without reasonable assurances of substantial benefit, not apparent here.
DEV pre-exposure prophylaxis against rabies was not a course of treatment concluded to be necessary in the exercise of informed medical judgment at the time. The Office of Medical Services of the Department of State did not require or even strongly recommend DEV pre-exposure prophylaxis. Nevertheless, the attending nurse employed by defendant routinely administered DEV pre-exposure prophylaxis to Mr. and Mrs. Hitchcock.
Taking into account (1) the relatively low probability of exposure to rabies to be reasonably anticipated for a woman of Mrs. Hitchcock's age, position, and prospective residence, (2) the limited protection afforded by DEV pre-exposure prophylaxis, even in conjunction with a subsequent antibody titer, (3) the failure of the Department either to advise plaintiffs of the necessity for a subsequent antibody titer or to provide any procedure to take antibody titers in patients treated with DEV pre-exposure prophylaxis by the Department, and (4) the possibility of severe neurologic reaction, including paralysis and death, as a result of receiving a pre-exposure series of DEV injections, *74 it is established by a preponderance of the evidence that, if the risks and benefits had been disclosed to a reasonable person in Mrs. Hitchcock's position, she would have declined to receive DEV pre-exposure prophylaxis.
This finding is based on paragraphs 14, 15, and 16 of this Memorandum and on testimony received at trial. It is also particularly confirmed by the following evidence:
A. A "Recommendation of the Public Health Service Advisory Committee on Immunization Practices" dated October, 1969, suggests that it is only the high risk of repeated rabies exposure for certain individuals (e. g., veterinarians) that outweighs, for them, the "relatively low" frequency of serious reactions to DEV, thereby making it "more practical" to offer DEV pre-exposure prophylaxis to those individuals. The Recommendation states, in part, that:
PRE-EXPOSURE PROPHYLAXIS
The relatively low frequency of reactions to DEV has made it more practical to offer pre-exposure immunization to persons in high-risk groups: veterinarians, animal handlers, certain laboratory workers, and individuals, especially children, living in areas of the world where rabies is a constant threat. Others whose vocational or avocational pursuits result in frequent contact with dogs, cats, foxes, skunks or bats should also be considered for pre-exposure prophylaxis. (Emphasis added.)
(Defendant's exhibit 26.)
B. The Eli Lily and Company DEV product information sheet dated April 5, 1972, guardedly advises that DEV pre-exposure prophylaxis "may be desirable for certain high-risk individuals." (Emphasis added.) The Lily product information sheet states, in relevant part, the following:
Preexposure Immunization Vaccination with duck embryo rabies vaccine before exposure occurs may be desirable for certain high-risk individuals. These include veterinarians, deliverymen, meter readers, spelunkers, laboratory personnel working with rabies virus, and perhaps others.
Although 20 percent of individuals bitten by animals known to be rabid develop rabies and rabies, once contracted, is almost 100% fatal if not treated, the Lily product information sheet does not unequivocally recommend a post-exposure DEV series for individuals who have been exposed to rabies. The product information sheet notes that:
Postexposure Immunization Indications for and against giving rabies vaccine are difficult to define. In favor of giving it is the fact that, if rabies develops, it will almost certainly have fatal results. Against giving it is the danger of development of severe side-effects involving the central nervous system when vaccine contains brain tissue. Experiments have shown that duck-embryo tissue contains little or none of the "paralytic factor", and the incidence of neurological side-effects has been low with the use of duck-embryo vaccine.
(Plaintiffs' exhibit 59(c). Compare ¶ 15(B), supra.)
C. Rubin, Hattwick, Jones, Gregg and Schwartz, "Adverse Reactions to Duck Embryo Rabies Vaccine" (1973), provides, in part, that:
The relative safety [of DEV] has made possible the introduction of preexposure prophylaxis for such individuals as veterinarians and animal handlers, who are significantly at risk of being exposed to rabies. (at 643.) (Emphasis added.)
(Plaintiffs' exhibit 15.)
D. A "Procedures Memorandum" of the Office of Medical Services, Department of State, dated June 1, 1972, provides that immunization against rabies is not among the immunizations required for international or military travel, nor is it among the immunizations "strongly recommended" by the Department. DEV vaccination is listed as an "additional recommendation" of possibly, among others, "the Office of Medical Services (see FAM 680 Appendix A.)"
(Defendant's exhibit 16.)
E. A document entitled "UNIFORM STATE/AID/USIA REGULATIONS, POLICIES *75 AND PROCEDURES FOR IMMUNIZATIONS", 3 FAM 680 Appendix A, and dated April 22, 1971, advises among, other things, that:
Rabies prophylaxis, before exposure, is indicated for individuals with an unusual risk of repeated exposure . . .. (Emphasis added.)
(Defendant's exhibit 13.)
F. A document entitled "IMMUNIZATION GUIDE FOR EMPLOYEES AND THEIR DEPENDENTS TRAVELING OR RESIDING IN FOREIGN COUNTRIES", dated April, 1971 and prepared by the Immunization Clinic of the Department of State as a summary of its recommendations, advises, in part, the following:
RECOMMENDED IMMUNIZATIONS Determined by conditions in the country in which residing or countries through which traveling . . ..
RABIES (Duck Embryo Vaccine). . It is recommended for individuals living in areas of the world where rabies is a constant threat.
(Plaintiffs' exhibit 71.)
G. At a deposition taken on May 10, 1979, Dr. Plotkin suggested that the question of whether or not to vaccinate an individual may, at times, admit of no easy answer, presumably because of the difficulty in weighing the risks and benefits of such vaccination. Dr. Plotkin stated, among other things, that:
. . . because of my special interest in rabies I do a great deal of consultation with other physicians and inoculations against rabies. The questions of whether to vaccinate, when to vaccinate, are sometimes very complicated and physicians will often call for help relative to that point.
(Plotkin deposition at 7.)
18. Unrevealed Risk Materialized: DEV Caused Or Aggravated Mrs. Hitchcock's Demyelinating Disease. The risk of serious neurologic reaction to the pre-exposure series of DEV materialized in Mrs. Hitchcock's case in the form of a progressive, chronic demyelinating disease which she contracted or which was aggravated as a result of the DEV injections. The smallpox vaccination administered to her in November, 1973, may also have contributed to her present condition.
Plaintiffs have established by a preponderance of the evidence that the DEV injections given Mrs. Hitchcock in 1972 either (a) caused her demyelinating disease or, (b) if Mrs. Hitchcock's transient loss of vision in her right eye in 1954 was an early symptom of multiple sclerosis (a fact which cannot now be either proved or disproved), triggered an otherwise dormant demyelinating disease or accelerated a very slowly developing one.
The finding that the DEV injections caused Mrs. Hitchcock's demyelinating disease is supported by the persuasive similarity between Mrs. Hitchcock's symptoms and confirmed neurologic reactions in other patients to NTV and DEV. Mrs. Hitchcock's symptoms of fatigue and loss of reflexes in her legs, later developing into paraplegia, and optic neuritis are typical examples of serious neurologic reactions to NTV and DEV. See, e. g., Plaintiffs' exhibits 15 at 645 and 53 at 117-120. The incubation period for Mrs. Hitchcock's disease is also consistent with reported cases. Mrs. Hitchcock first complained of symptoms of fatigue in her legs almost immediately after receiving the DEV injections in 1972. The onset of serious neurologic symptoms (numbness in her hands) began in February, 1973 and was unmistakable by May, 1973, approximately one year after the first injection. Although a one-year interval between vaccination and onset of serious neurologic symptoms is apparently not typical, the relevant medical literature contains reports of similar intervals of up to twenty years. See ¶ 19(A), infra; compare Plotkin deposition at 50.
On the other hand, even if, at the time of DEV injections in 1972, Mrs. Hitchcock had been suffering from some form of multiple sclerosis since 1954 (when the transient loss of vision in her right eye may have been due to optic nerve involvement, signaling the onset of multiple sclerosis), Mrs. Hitchcock *76 apparently experienced no further symptoms of demyelination until shortly after the DEV injections in 1972. The explanation of her disabling disease most plausible to the Court in these circumstances is that the injections triggered an otherwise dormant disease or aggravated and accelerated an otherwise very slowly progressing one.
Both of these explanations are more plausible and find more support in the record than defendant's theory: viz., that Mrs. Hitchcock cannot carry her burden of proving that the DEV injections caused her disease because her disease is multiple sclerosis and the cause of multiple sclerosis is unknown.
These conclusions are based on the Findings of Fact set out above, upon testimony at trial and upon the following evidence:
A. In a letter to the Editor of the Archive of Neurology, Vol. 35, Oct. 1978, Drs. Britton, Houff and Eiben of the National Institutes of Health in Bethesda, Maryland, reported a case of a slowly progressive central nervous system disease in a patient who had received a post-exposure Semple [NTV] series of injections four years before. This letter traverses defendant's contention that attribution of Mrs. Hitchcock's illness to DEV has no scientific basis because too much time elapsed between vaccination and the onset of neurologic side-effects. The letter states, in part, that:
The association of a multiple sclerosis-like illness in a patient with exposure to a nervous tissue-derived antirabies vaccine . . . allow[s] the speculation that the altered CNS immune state is related to the vaccine. The incubation period from vaccination to onset of serious neurologic symptoms in this patient was far longer than that in other cases reported in the literature. One exception is the report . . in which 12 of the 458 patients with disseminated sclerosis had a history of antirabies vaccination 2 to 20 years prior to any neurologic symptoms. The course of the illness in these 12 patients was chronic and progressive . . ..
Demyelinating illness probably requires an antigenic stimulus to trigger it and an altered immune state to perpetuate it. (Emphasis added.)
(Plaintiffs' exhibit 43.)
B. If Mrs. Hitchcock was suffering from a central nervous system disorder prior to the administration of DEV prophylaxis in May and June, 1972, that disorder could have been aggravated by the DEV. (Testimony of Dr. Restak, an expert neurologist.)
C. To a reasonable degree of medical certainty approximately 75 to 80 percent Mrs. Hitchcock is suffering from a demyelinating disease caused by the administration of DEV pre-exposure prophylaxis to her in May and June, 1972. (Testimony of Dr. Herskovits.)
D. Dr. Melvin Yahr, an expert neurologist, addressed a letter to Dr. Herskovits dated October 15, 1975, two days after Dr. Yahr had examined Mrs. Hitchcock. In his letter, Dr. Yahr said the following:
The cause of [Mrs. Hitchcock's] disorder cannot be stated unequivocally but is certain (sic) in keeping with a demyelinating disease process. Had the episode of visual loss in 1954 been documented as optic nerve involvement there would of course be no doubt that she is suffering from multiple sclerosis. However, since an alternative cause for her visual difficulty is reported by her ophthalmologist, one has to hold this diagnosis in abeyance. One must raise the possibility of some type of hypersensitivity reaction to the antirabies vaccine, in view of its reported relationship to demyelinating disease. As you know this was documented in Japan some years ago with an implied relationship to multiple sclerosis.
(Plaintiffs' exhibit 4.)
E. In August, 1976, Dr. Yahr wrote the following letter to Dr. Herskovits:
Thank you very much for sending me the additional information on Mrs. Hitchcock. I assume the implication is that the rabies immunization was the cause of her neurological disorder and this may well *77 be true. Indeed, I raised the possibility in my letter. However, it is going to be a difficult situation to prove.
(Defendant's exhibit 47.)
F. At his deposition, Dr. Plotkin, an expert on rabies and rabies vaccine, testified that DEV, like all vaccines containing protein from another species, can cause neurologic reactions in vaccinees. Dr. Plotkin testified upon cross-examination as follows:
Q. Doctor, what is the factor, element, particle, if you will, in the duck embryo vaccine that causes the reactions?
A. It is the duck embryo protein itself, that is, every species has proteins that are native to that species alone, and since the duck embryo vaccine is prepared by inoculating duck embryos, there is inevitably going to be duck protein in the final vaccine. (Emphasis added.)
Dr. Plotkin had previously testified upon direct examination as follows:
Q. What advantages, if any, does the new human cell [antirabies] vaccine have over the duck embryo vaccine?
A. Basically two. One is that it . . produces immunity much better than the duck embryo vaccine. And second, because it is produced in human cell culture, it does not have duck embryo protein and therefore, people are not made allergic to duck embryo by being injected.
Q. Does it have any advantage with regard to possible neurologic reactions?
A. I would say yes because there's no nothing in the [new human cell] vaccine except purified rabies virus. So it should in principle produce no neurologic reactions. (Emphasis added.)
(Plotkin deposition at 23-24.)
With respect to the effect on Mrs. Hitchcock's present condition of a smallpox vaccination given to her in November, 1973, Dr. Plotkin stated that:
. . . Of course, smallpox vaccination itself is associated with post-vaccination encephalitis, so, that introduces a complicating factor.
(Plotkin deposition at 49.)
Regarding the period of time between injection of NTV and the manifestation of neurologic symptoms in reported cases, Dr. Plotkin testified on deposition that:
. . . [T]he great majority [of] recorded reactions have been within a couple of months of vaccination. Now, the Japanese papers quote longer incubation periods to the reactions. And I think that's certainly very interesting, I don't know exactly what to make of it.
(Plotkin deposition at 50.)
Although Dr. Plotkin did not recall any instances of other permanent, progressive neurologic disease resulting from DEV injection, he also stated that:
I would say . . . that any time you have a neurologic reaction there is a possibility that it's going to be permanent.
(Plotkin deposition at 52. And see ¶ 14I, supra.)
19. Mr. Hitchcock's Damages. Mr. Hitchcock's injuries resulting from the total incapacitation of his wife include loss of consortium and loss of marital services. (Testimony of Mr. and Mrs. Hitchcock.)
20. The damages awarded to Mr. and Mrs. Hitchcock take into account the following:
A. The demyelinating disease from which Mrs. Hitchcock suffers resembles, or may even be, multiple sclerosis, recognizing that the cause of multiple sclerosis is unknown;
B. There is a possibility that before May, 1972, Mrs. Hitchcock suffered from multiple sclerosis or some other demyelinating disease and that the DEV injections triggered or aggravated a dormant or slowly progressing disease;
C. There is a possibility that multiple sclerosis or other demyelinating disease caused, triggered, or aggravated by the DEV was further aggravated by a smallpox vaccination in November, 1973;
D. The parties understood that Mrs. Hitchcock, as the wife of a Foreign Service Officer, would assist her husband in carrying out his duties while serving abroad; by performing mission-related *78 functions and refraining from work and activities considered by defendant to be inappropriate for a Foreign Service Officer's wife in the field; and that her performance of those functions and refraining from others were of great value, both to her husband, and to the United States.
E. As a Foreign Service Officer's wife, Mrs. Hitchcock's status had many of the elements of an employee of defendant.
21. The pecuniary damages to be awarded Mrs. Hitchcock in light of the foregoing Findings of Fact, supra, and the Conclusions of Law, infra, include:
A. Medical expenses (as stipulated) $ 99,212.00
B. Compensatory damages [7] 319,839.00
C. Pain and suffering 50,000.00
Mr. Hitchcock has suffered a loss of consortium and marital services entitling him to a separate damage award of $50,000.
II. Conclusions of Law
The Court adopts the foregoing Findings of Fact and concludes, under applicable law, that plaintiffs are entitled to judgment against defendant as follows:
1. Defendant is liable to Mrs. Hitchcock. The standard of reasonable care for the administration of inoculations in 1972, as set forth in Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772 (1972), cert. den. 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1973), was not met by defendant.
A. The defendant was under the general duty imposed upon a physician to exercise reasonable care for the benefit of his patient. This duty normally requires the physician to advise the patient of the expected benefits and to warn the patient of any risks to her well-being which contemplated therapy may involve. 150 U.S.App.D.C. at 272, 132, 464 F.2d at 781 and n. 132.
B. The physician's duty to disclose includes the duty to communicate to the patient alternative treatments available, if any, the likely results if the patient remains untreated, and the incidence of injury and the degree of harm threatened by the treatment. 150 U.S.App.D.C. at 278-79, 464 F.2d at 787-88.
C. In May and June, 1972, defendant knew, or should have known, that there was a possibility of serious neurologic reaction, including paralysis and death, resulting from DEV pre-exposure prophylaxis. Defendant knew, or should have known: (1) that the probability of contracting rabies unless bitten is low and, (2) that once bitten, the probability of needing a full post-exposure prophylaxis in spite of having taken the pre-exposure series is relatively high and (3) that the value of any pre-exposure series was therefore very limited for an individual like Mrs. Hitchcock, who could reasonably have considered herself an individual who had no "unusual risk of repeated exposure" to rabies. Defendant's exhibit 13.
Defendant did not cause a physician to be present at the vaccination of Mrs. Hitchcock and the nurse who was present and who routinely administered the vaccine to Mrs. Hitchcock did so without disclosing to her (1) that vaccination with DEV was not required by the Department or even strongly recommended by the Office of Medical Services, (2) the limited and conditional nature of benefits to be derived from vaccination with DEV, and (3) the incidence of injury and the degree of harm threatened by such vaccination.
Defendant also knew, or should have known, of the necessity for a post-vaccinal test for rabies antibody if the pre-exposure prophylaxis is to have any practical value for a vaccinee. Defendant did not disclose to Mrs. Hitchcock the necessity or existence of such a test. Defendant provided no program for the administration of such a test, nor did Mrs. Hitchcock receive such a test until 1975, in the course of consulting a physician about her demyelinating disease.
*79 D. Adequate disclosure of the risk of possible serious neurologic side effects, including paralysis and death, as measured against the possible benefits of receiving some protection against rabies infection could reasonably be expected to have caused plaintiff to have declined the treatment offered. As our Court of Appeals has observed:
A very small chance of death or serious disablement may well be significant; a potential disability which dramatically outweighs the potential benefit of the therapy or the detriments of the existing malady may summons discussion with the patient.
150 U.S.App.D.C. at 279, 464 F.2d at 788.
E. The unexplained risk of serious neurologic side-effects resulting from DEV injections materialized in the form of a chronic, progressive demyelinating disease, either caused, triggered or aggravated by the injections of DEV administered to Mrs. Hitchcock by defendant.
This demyelinating disease has left plaintiff totally incapacitated.
F. Defendant breached its duty to disclose adequately the potential risks and benefits of DEV pre-exposure prophylaxis, and this failure was the proximate cause of Mrs. Hitchcock's injury. The fundamental principle that "`[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body'" was violated by defendant with respect to Mrs. Hitchcock and resulted in her receiving, without her informed consent, an optional treatment which caused her pain, suffering and a continuing, permanent disability. 150 U.S.App.D.C. at 271, 464 F.2d at 780.
2. Defendant is liable to Mr. Hitchcock. As a direct result of defendant's negligence, Mr. Hitchcock has suffered loss of consortium and marital services of his wife, Margaret Hitchcock. Loss of consortium and marital services are compensable injuries under District of Columbia law. See District of Columbia v. Barriteau, 399 A.2d 563, at 566 (D.C.App.1979).
3. Damages. This is not a private, medical malpractice case. The measure of damages applicable if the neglect of a private physician had contributed to Mrs. Hitchcock's disability is principally applicable by analogy. Nor is this a claim by a private citizen against the Government on account of injury caused by the Government to a legal stranger to it, as in a traffic accident.
This is a claim by a Foreign Service Officer and his wife on account of her disability, found to have been caused by the negligence of their employer in the course of their employment. The term "their employer" is used advisedly here, and not literally. It reflects the fact that the wife of a Foreign Service Officer abroad had duties and also limitations on her activity that were imposed by her husband's employer, the United States. In addition, the United States enjoyed valuable services as a third-party beneficiary of the marital contract as it was performed between Mr. Hitchcock and his wife.[8]
In measuring damages, therefore, the Court has adopted as a guide the obligation assumed by Congress to a Foreign Service Officer who becomes disabled in the line of duty with or without the fault of the employer, the United States. Viewing the husband-wife Foreign Service couple effectively, if not officially and legally, as a "couple" engaged by the United States for the purpose of determining a measure of damages, the Court has awarded Mrs. Hitchcock 50% of what her husband would have received if he had been disabled in the line of duty.
*80 Recognizing, moreover, that Mrs. Hitchcock was not, strictly speaking, a government employee, that she has incurred medical expenses not compensated by either the government or by insurance, and that both she and her husband have suffered pain, anxiety and loss of consortium as a result of her disability, the Court has also awarded Mrs. Hitchcock the cost of her medical treatment, and a measured amount of damages to both husband and wife for the personal pain, suffering, and mutual loss of consortium, which was caused them by the negligence of the United States, its agencies and agents.
4. Plaintiffs shall receive damages as stated in the Findings of Fact which total $469,051 for plaintiff Margaret Hitchcock and $50,000 for plaintiff Wilbur Hitchcock.
5. Plaintiffs are entitled to judgment in the above amounts. A Judgment accompanies these Findings of Fact and Conclusions of Law.
JUDGMENT
For reasons stated in open court on May 23, 1979, and in the accompanying Findings of Fact and Conclusions of Law it is this 27th day of July, 1979, hereby
ORDERED: That JUDGMENT shall be and hereby is ENTERED for PLAINTIFFS in the amount of $519,051.00.
NOTES
[1] The Court prepared the Findings of Fact in this case without the benefit of a Court Reporter's transcript of the trial. In this case, neither party ordered a transcript. Under existing law, Reporters are compensated in part by a salary, 28 U.S.C. § 753(e) (Supp.1979), and in part by fees for furnishing transcripts to the parties. See 28 U.S.C. § 753(f) (Supp.1979). The Reporter would therefore have received no compensation (beyond salary) for preparing and furnishing a trial transcript to the Court. Texas City Tort Claims v. United States, 188 F.2d 900 (5th Cir., 1951). The Court is advised that for this reason Court Reporters are reluctant to furnish trial transcripts not ordered by a party, and that it has not been the practice of Courts generally to require Reporters to do so. Although preparation of Findings without a transcript was a serious handicap in this complex case, this Court was reluctant to order an individual Reporter to incur financial burdens not imposed in practice upon Reporters generally.
The Court suggests that the system which has induced this impasse deserves the attention of the Judicial Conference and the appropriate Committees of Congress.
[2] A demyelinating disease is a disease which destroys or removes the myelin sheath of a nerve or nerves in a patient. See Dorland's Illustrated Medical Dictionary (1974).
[3] "Multiple sclerosis" is defined as "a disease in which there are patches of demyelination throughout the white matter of the central nervous system, sometimes extending into the gray matter. Typically, the symptoms . . are weakness, incoordination, paresthesias, speech disturbances and visual complaints." Dorland's Illustrated Medical Dictionary (1974).
[4] This article was the product of thirteen years of research by the Center for Disease Control relating to complications in the administration of DEV. The Center for Disease Control is part of the Health Services and Mental Health Administration, Public Health Service, Department of Health, Education and Welfare. Defendant and its agents, the Department and the Department of State Office of Medical Services, may be charged with knowledge of the contents of this article, which made public in 1973 the results of ongoing research of DEV complications compiled by an instrumentality of the federal government. There is also evidence in the record that Dr. Martin Wolfe, Department of State Office of Medical Services, was in contact by letter with one of the authors of the above-mentioned article, Dr. Michael Hattwick of the Center for Disease Control, concerning possible side-effects of DEV pre-exposure prophylaxis as early as September, 1970. Defendant's exhibit 17. In Dr. Hattwick's letter of September 25, 1970, to Dr. Wolfe, Dr. Hattwick wrote:
"Here at the CDC [Center for Disease Control] we initiated in the spring of 1969 a prospective study of the complications of pre-exposure prophylaxis and a preliminary one year study of this report should be available in the next few months. We will be happy to forward a copy of this to you if you desire." (Defendant's exhibit 17 at 2.)
There is no evidence that Dr. Wolfe or the Office of Medical Services ever requested the preliminary report mentioned by Dr. Hattwick in his letter.
Dr. Hattwick testified as an expert witness for the defendant in this case.
[5] The product information sheet generally advises that a full post-exposure series of at least 14 DEV injections be given a patient whose exposure to rabies has been "severe," regardless of whether or not the patient has received the pre-exposure DEV series. See p. 13, supra.
[6] As set out in paragraph 15A, supra, the number of reported rabies cases in humans in Argentina in 1971 and 1972 was one or two. The number of rabies cases in humans in metropolitan Buenos Aires in 1973 was eight and in 1974 the number was six. The population of metropolitan Buenos Aires in 1976 was approximately seven million.
[7] In consideration of finding 20, among others, this amount is computed as fifty percent of the present value of the disability payments Mrs. Hitchcock would have received if she had held her husband's rank in May, 1973. The date of May, 1973, is as stipulated by the parties.
[8] See also, "The Right Marriage Split," New York Times June 22, 1979:
"The wives of diplomats are obliged to devote themselves full-time to their husbands' careers. They must live abroad, move their homes frequently and virtually abandon all opportunity for independent careers. And their "wifely" duties are so important to the husband's effective performance that until 1972 the State Department actually graded wives on their performance as hostesses and workers in volunteer projects wherever they were stationed."
And see H.R.2857, introduced March 13, 1979. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263778/ | 115 N.H. 131 (1975)
TRUSTEES OF LEXINGTON REALTY TRUST
v.
CITY OF CONCORD
No. 6905.
Supreme Court of New Hampshire.
March 31, 1975.
*132 Stanley, Tardiff & Shapiro (Mr. R. Peter Shapiro orally) for the plaintiff.
Paul F. Cavanaugh, city solicitor, by brief and orally, for the defendant.
GRIFFITH, J.
On appeal by the plaintiffs from a denial of tax abatements by the city of Concord, the board of taxation abated the taxes of the plaintiffs on certain land and buildings in Concord, known as Lexington Manor Apartments and Lord Baron Apartments, for the years 1970, 1971, 1972 and 1973. The order of the board reduced the assessments on the property for the years in question. The city of Concord has appealed the decision of the board to this court in accordance with the provisions of RSA 76:16-a (Supp. 1973).
The city in its brief argues that the decision of the board reduces the assessments but there is nothing to indicate that the plaintiffs met the burden of proving that the assessment the city placed on their property was disproportionately higher than that of other property in the city. We agree that whether a taxpayer is seeking an abatement in the superior court or before the board he is not entitled to an abatement unless he proves that the disputed assessment is disproportionately higher than that of other property within the taxing district. Duval v. Manchester, 111 N.H. 375, 286 A.2d 612 (1971); Freedman v. Exeter, 107 N.H. 163, 219 A.2d 275 (1966); Ainsworth v. Claremont, 106 N.H. 85, 205 A.2d 356 (1964).
Counsel for the defendant on this appeal finds himself in a norecord situation. There is no transcript, no findings of fact, and nothing in the exhibits to indicate the basis for the reduction of the assessment by the board.
If this were a transfer from a trial court, defendant's appeal would be dismissed on the presumption that the order was based upon competent evidence and in accordance with the law. Merchants Nat'l Bank v. Adams, 114 N.H. 46, 314 A.2d 664 (1974); Howard Laces, Inc. v. Colby Footwear, Inc., 112 N.H. 380, 296 A.2d 909 (1972); Bergeron v. Hunt, 110 N.H. 278, 266 A.2d 121 (1970). However because this is a limited appeal from an administrative board, we are of the opinion it should not be governed by the rules applied to the broader appeal available from a court decision. See K. Davis, Administrative Law Text § 16:01 (1972).
RSA 71-B:2 (Supp. 1973), effective September 1, 1973, replaced *133 the State tax commission with a board of taxation. The new board was given concurrent jurisdiction with the superior court to hear taxpayers' appeals for tax abatement. RSA 76:16-a, :17 (Supp. 1973). This contrasted with the jurisdiction of the State tax commission whose decisions in tax abatement appeals, determined in nonadversary hearing, could be appealed by the taxpayer to the superior court. RSA 76:16-a, :17 (1955). In hearings before the board of taxation, the town or city and the taxpayer appear in an adversary proceeding and are entitled to be represented by counsel. RSA 76:16-a III (Supp. 1973). No stenographic record is made in the absence of a request, and the board is not bound by the technical rules of evidence. RSA 76:16-a III, IV (Supp. 1973). The decisions of the board may be appealed by either the town or city or the taxpayer to this court where the findings of fact by the board are final and our review is limited to questions of law. RSA 76:16-a V (Supp. 1973); Dartmouth Corp. of Alpha Delta v. Hanover, 115 N.H. 26, 332 A.2d 390 (1975).
The absence of any findings of fact in this case makes it impossible for us to determine whether the decision by the board was made in accordance with the law. The necessity of findings of fact for effective review of administrative orders is recognized in the administrative procedure acts of many jurisdictions by a provision requiring such findings. For example, the Federal Administrative Procedure Act provides that all decisions shall include a statement of "(A) findings and conclusions and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record." 5 U.S.C.A. § 557 (c) (3) (A); see 2 F. Cooper, State Administrative Law 469-71 (1965) for a review of state statutory provisions.
Such legislative enactments are little more than codifications of principles first enunciated by the courts. "The requirement of administrative findings was created by courts in the process of deciding cases on judicial review of administrative action. Like much of the rest of administrative law, the findings requirement is a part of the common law." K. Davis, Administrative Law Text § 16.02, at 319 (1972); see Panama Refining Co. v. Ryan, 293 U.S. 388, 431-32 (1935); New England Tel. & Tel. Co. v. Kennelly, 81 R.I. 1, 98 A.2d 835 (1953).
Our Administrative Procedure Act does not contain a requirement for findings of fact (RSA ch. 541-A) but this court has long recognized the desirability of such findings. "We see no reason *134 for departure from the principles established by our cases, that the commission is under a duty `to find all facts . . . essential to the presentation of all questions of law raised by . . . [their] order.' Grafton &c. Co. v. State, 77 N.H. 490, 498." Company v. State, 95 N.H. 353, 359, 64 A.2d 9, 15 (1949).
Findings of fact and rulings were made by the board in the recent case of Dartmouth Corp. of Alpha Delta & a. v. Hanover, 115 N.H. 26, 332 A.2d 390 (1975), and in Paras v. Portsmouth, 115 N.H. 63, 335 A.2d 304 (1975). We assume the absence of findings in the present case may be due in part to the lack of a request from counsel, but we are not disposed to treat the absence of a request as a waiver. Understandably, no rules of procedure have as yet been adopted by the board under the authorization of RSA 71-B:8 (Supp. 1973) and there is no statutory requirement of a request to obtain findings as is the case in the superior court. RSA 491:15; see RSA 491: App. R. 67 (Supp. 1973).
The statute designed the board of taxation as a tribunal intended to function with less formality and greater latitude than the superior court, but restricted to decisions within the framework of the law. In order to insure that its decisions are lawful, we must have the essential findings of fact upon which the decision of the board was based. Accordingly, we remand the case to the board of taxation for such findings of fact. See Broderick v. Hunt, 77 N.H. 139, 144, 89 A. 302, 305 (1913).
Remanded.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263643/ | 115 N.H. 124 (1975)
HOWARD W. SIBSON & a.
v.
STATE OF NEW HAMPSHIRE
No. 6904.
Supreme Court of New Hampshire.
March 31, 1975.
*125 Shaines, Madrigan & McEachern (Mr. Robert A. Shaines orally) for the plaintiffs.
Warren B. Rudman, attorney general, and Donald W. Stever, Jr., assistant attorney general (Mr. Stever orally), for the State.
GRIFFITH, J.
The plaintiffs appealed to the superior court from a denial by a special board acting under the aegis of the water resources board of a permit to fill approximately four acres of salt marshland in Rye. Laws 1969, 387:6; Laws 1971, 329:1; RSA 483-A:4 (Supp. 1973). The appeal was heard by Blandin, judicial referee, whose report dismissing the appeal was approved by Morris, J., who reserved and transferred plaintiffs' exceptions.
The critical question to be determined is whether the trial court erred when it concluded that the denial by the special board of the permit to fill the saltmarsh was a valid exercise of the police power not requiring compensation. After examining the record and the findings of the judicial referee, we sustain the ruling of the trial court.
In 1968, plaintiffs purchased a six-acre tract of saltmarsh for $18,500. This was part of Awcomin Marsh, a tidal wetland approximately 100 acres in size. Following our decision in Sibson v. State, 110 N.H. 8, 259 A.2d 397 (1969), holding that the then language of RSA ch. 483-A did not apply to plaintiffs' land, the plaintiffs legally filled a two-acre portion of the saltmarsh without a permit. In 1972, the plaintiffs sold the filled land with a house they had built on it for $75,000, placing a value of $50,000 on the house and $25,000 on the land. The definition of marshland *126 added by Laws 1970, 22:1 now RSA 483-A:1-a (Supp. 1973) clearly includes plaintiffs' land. The litigation which culminated in Sibson v. State, 111 N.H. 305, 282 A.2d 664 (1971), although related has no particular relevance to the present case.
In sustaining the denial of a permit to fill by the special board, the judicial referee made extensive findings of fact and rulings of law. In part the findings concluded that plaintiffs' four acres were part of a valuable ecological asset of the seacoast area and that the proposed fill "would do irreparable damage to an already dangerously diminished and irreplaceable natural asset." In addition, the filling of land so close to the bridge under which a large flow of water daily came in and flowed out would "magnify the deleterious effect which the fill would have upon the entire one hundred acres of the marsh." The judicial referee also found "[t]he unfilled portion of the marsh is of practically no pecuniary value to the plaintiffs."
Controlling and restricting the filling of wetlands is clearly within the scope of the police power of the State. The evidence in the case overwhelmingly supported the referee's findings on the importance of preserving saltmarshes "as one of the most productive areas of nutrient per acre to be found anywhere." The evidence further supported the referee's finding that the proposed fill would be "bad for the marsh" and "for mankind". RSA 483-A:1-b (Supp. 1973) sets forth in some detail the harm that results from unregulated filling of wetlands and the contributions of wetlands to mankind in support of the legislative finding that it is "for the public good and welfare of this state to protect and preserve its submerged lands under tidal and fresh waters and its wetlands (both saltwater and freshwater, as herein defined) from despoliation and unregulated alteration." See 5 Fish & Wildlife Service, U.S. Dep't of the Interior, National Estuary Study 66-71 (1970); Note, Estuarine Pollution: The Deterioration of the Oyster Industry in North Carolina, 49 N.C.L. Rev. 921 (1971); Binder, Taking Versus Reasonable Regulation: A Reappraisal In Light of Regional Planning and Wetlands, 25 U. of Fla. L. Rev. 1, 18-30 (1972).
The plaintiffs do not seriously contest that the denial of the permit to fill was a proper exercise of the police power, but argue that this denial rendered their saltmarsh economically useless and therefore constitutes a taking. They rely upon a theory first promulgated by Justice Holmes in Pennsylvania *127 Coal Co. v. Mahon, 260 U.S. 393 (1922), that compensation is due a landholder when a regulation destroys all or substantially all of the value of the property affected or denies to the owners all of its beneficial use. When such a destruction or diminution occurs, there is a taking of private property for public use without compensation in violation of State and Federal Constitutions. U.S. CONST. amend. V; N.H. CONST. pt. I, art. 12; see Surry v. Starkey, 115 N.H. 31, 332 A.2d 172 (1975); Carter v. Derry, 113 N.H. 1, 4, 300 A.2d 53, 55 (1973). Based upon this principle governmental attempts to prevent filling of marshlands have been denied or restricted in some jurisdictions. E.g., State v. Johnson, 265 A.2d 711 (Me. 1970); Commissioner of Natural Resources v. S. Volpe & Co., 349 Mass. 104, 206 N.E.2d 666 (1965); Dooley v. Town Plan & Zoning Comm'n, 151 Conn. 304, 197 A.2d 770 (1964); Morris County Land I. Co. v. Parsippany-Troy Hills Tp., 40 N.J. 539, 193 A.2d 232 (1963).
The referee found that the plaintiffs had recovered their total investment and made some profit. Since they had been able to fill two acres and build a house on their original six-acre tract, the dismissal of their appeal could be sustained on the basis that their land was not rendered useless, but that they had only been deprived of a speculative profit. See Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956 (1st Cir. 1972). We prefer to decide the case on the present application to fill the four acres still retained by the plaintiffs.
Counsel for the State urges with some force that we reject the Holmes formula as imprecise and unsuited to the problems involved in the preservation of wetlands. It is conceded that the rule is imprecise and difficult to apply. "There is no set formula to determine where regulation ends and taking begins. Although a comparison of values before and after is relevant, . . . it is by no means conclusive, see Hadachek v. Sebastian . . . [239 U.S. 394 (1915)], where a diminution in value from $800,000 to $60,000 was upheld." Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962). Compare Turnpike Realty Co. v. Town of Dedham, 284 N.E.2d 891 (Mass. 1972) with Dooley v. Town Plan & Zoning Comm'n, 151 Conn. 304, 197 A.2d 770 (1964).
A different approach is suggested to determine whether a land use statute and subsequent regulatory activity are constitutional or confiscatory. Under the proposed rule, if the action of the State is a valid exercise of the police power proscribing activities that could harm the public, then there is no taking under the *128 eminent domain clause. It is only when the state action appropriates property for the public use at the expense of the property owner that compensation is due. Stever, Land Use Controls, Takings And The Police Power A Discussion Of The Myth, 15 N.H.B.J. 149 (1974); Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149 (1971); Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964).
This rule finds support in cases apparently ignored in the cases purporting to follow the rule of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). In Mugler v. Kansas, 123 U.S. 623 (1887), the Court upheld the shutting down without compensation of a brewery by the Kansas prohibition law and in State v. Griffin, 69 N.H. 1, 39 A. 260 (1896), a statute was sustained that required the defendant to cease dumping sawdust in a public water supply. In State v. Griffin, supra at 23-24, 39 A. at 260-61, the court quoted from an opinion by Chief Justice Shaw in Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85-86 (1851):
"Rights of property, . . . are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature . . . may think necessary and expedient."
"This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power. . . ."
". . . .
". . . . It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain."
In zoning cases, there has been some erosion of the Holmes principle in dealing with the restraint or elimination of nonconforming uses. In Flanagan v. Hollis, 112 N.H. 222, 293 A.2d 328 (1972), we sustained substantial restrictions upon the enlargement of existing gravel excavations, but in Surry v. Starkey, 115 N.H. 31, 332 A.2d 172 (1975), we refused to uphold an immediate termination of use of land as a gravel bank where the trial court found that practically the only use of land was a gravel bank. "[T]here is no public taking, unless the prohibition deprives *129 the owner of the only use of his land" (Flanagan v. Hollis, supra at 223, 293 A.2d at 329), and in any event there is "no absolute right to continue a nonconforming use to eternity." Id. at 225, 293 A.2d at 330; Lachapelle v. Goffstown, 107 N.H. 485, 225 A.2d 624 (1967). We are not disposed to extend the absolute of the Griffin case rule to zoning cases dealing with legitimate current uses which are the only uses of the property. The approach we have taken is a legitimate method of lessening the burden on the individual of the action taken for the public good.
Somewhat more analogous to the present cases are cases where individuals are required to cease heretofore lawful activities now determined harmful to the public. These cases generally involve state action thought to be required to protect the health, welfare and morals of the public or required by an emergency. The validity of the state action is determined by balancing the "importance of the public benefit which is sought to be promoted against the seriousness of the restriction of a private right sought to be imposed." Richardson v. Beattie, 98 N.H. 71, 75-76, 95 A.2d 122, 125 (1953). The state action is sustained in these cases unless the public interest is so clearly of minor importance as to make the restriction of individual rights unreasonable. Shirley v. Commission, 100 N.H. 294, 124 A.2d 189 (1956); Dederick v. Smith, 88 N.H. 63, 184 A. 595 (1936); Woolf v. Fuller, 87 N.H. 64, 174 A. 193 (1934); Annot., 32 A.L.R.3d 215, 250-55 (1970). The importance of wetlands to the public health and welfare would clearly sustain the denial of the permit to fill plaintiffs' marshland even were their rights the substantial property rights inherent in a current use of an activity on their land.
Moreover, the rights of the plaintiffs in this case do not have the substantial character of a current use. The denial of the permit by the board did not depreciate the value of the marshland or cause it to become "of practically no pecuniary value." Its value was the same after the denial of the permit as before and it remained as it had been for milleniums. The referee correctly found that the action of the board denied plaintiffs none of the normal traditional uses of the marshland including wildlife observation, hunting, haying of marshgrass, clam and shellfish harvesting, and aesthetic purposes. The board has not denied plaintiffs' current uses of their marsh but prevented a major change in the marsh that plaintiffs seek to make for speculative profit. "An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a *130 purpose for which it was unsuited in its natural state and which injures the rights of others." Just v. Marinette County, 56 Wis. 2d 7, 17, 201 N.W.2d 761, 768 (1972); Candlestick Prop. Inc. v. San Francisco Bay C. & D. Com., 11 Cal. App. 3d 557, 89 Cal. Rptr. 897 (1970); Waite, Ransoming the Maine Environment, 23 Maine L. Rev. 103, 117 (1971).
We hold that the denial of the permit to fill the saltmarsh of the plaintiffs was a valid exercise of the police power proscribing future activities that would be harmful to the public and that, therefore, there was no taking under the eminent domain clause. State v. Griffin, 69 N.H. 1, 39 A. 260 (1896); Mugler v. Kansas, 123 U.S. 623 (1887). In view of the result reached, we have not deemed it necessary to consider the servitude in favor of the State imposed on the rights of littoral owners on public waters (See Sibson v. State, 110 N.H. 8, 10, 259 A.2d 397, 400 (1969)), nor the State's claim of ownership of the saltmarsh.
Plaintiffs' exceptions overruled; appeal dismissed.
GRIMES, J., concurred in the result in part and dissented in part; the others concurred.
GRIMES, J., concurring in the result in part and dissenting in part:
I am in complete sympathy with those who wish to preserve the marshes. However, I continue to agree with Judge Smith when over one hundred years ago he said that great public benefit "may afford an excellent reason for taking the plaintiff's land in a constitutional manner but not for taking it without compensation." Eaton v. B.C. & M. R.R., 51 N.H. 504, 518 (1872); Ferguson v. Keene, 108 N.H. 409, 415, 238 A.2d 1, 5 (1968) (dissenting opinion).
Because I fear this decision destroys private ownership in all undeveloped property in this State, I can concur in the result only as to that part of the marsh which lies below the mean high water mark of the Atlantic Ocean. I can concur to this extent because the State has an interest in the public waters which would be reduced by the fill.
The master has found that the unfilled marsh is of practically no pecuniary value to the plaintiffs. As to the marsh above mean high water, the effect of the State's action is to compel the plaintiff to devote his land to a public purpose without compensation *131 by denying him the right to put it to any other reasonably profitable use.
This constitutes a taking. Surry v. Starkey, 115 N.H. 31, 332 A.2d 172 (1975); Eaton v. B.C. & M. R.R., 51 N.H. 504 (1872); State v. Johnson, 265 A.2d 711 (Maine 1970). The effect of the principle adopted in today's decision is to undermine a great constitutional safeguard. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337527/ | 94 Ga. App. 25 (1956)
93 S.E.2d 589
MA-JET-IC FURNACE CORPORATION
v.
GREAT SOUTHERN TRUCKING COMPANY.
35995.
Court of Appeals of Georgia.
Decided May 1, 1956.
Rehearing Denied May 15, 1956.
O. J. Tolnas, for plaintiff in error.
Stephens & Bentley, contra.
*27 CARLISLE, J.
1. Under the provisions of 49 U.S. C. A. § 20 (11), an initial, or receiving common carrier may be held liable for the loss, by a connecting carrier, of goods moving in interstate commerce on a through bill of lading; and, where, upon the trial of an action, brought by a shipper against such initial, or receiving, common carrier for the loss, by a connecting carrier, of a shipment of goods moving in interstate commerce on a through bill of lading, the plaintiff shipper endeavors to introduce in evidence a signed "copy" of a letter, on the stationery of the connecting carrier, the original of which was addressed to the initial carrier (the defendant here) indicating that a carbon copy was to be sent to the shipper, with a postscript to the shipper, in which the loss of the shipment is admitted, such "copy" letter is not admissible in evidence over the objections of the initial carrier without proper proof of its authenticity; that is, that the letter was written and signed by the person purporting to do so, and that that person did so with proper authority. Deadrick v. Deadrick, 182 Ga. 96 (185 S.E. 89), and citations; Cocroft v. Cocroft, 158 Ga. 714 (124 S.E. 364), and citations; Owen v. Anderson, 54 Ga. App. 53 (186 S.E. 864). There is no merit in special ground 1 (numbered 5).
2. Where, in such a case as indicated in division 1, the plaintiff shipper also seeks to recover for certain alleged damages to certain other shipments of goods moving in interstate commerce, it is not such error as to require a new trial for the trial court, in the absence of a request, to fail to instruct the jury that "the acceptance of goods by [the] consignee and payment of the freight without complaint of damages, does not discharge [the] carrier from liability for damage to the goods while being transported," where it appears from the pleadings and the evidence that no such contention was made by the defendant carrier, and the trial court in its general charge instructed the jury: "Common carriers as such are bound to use extraordinary diligence in the care of goods it [sic, they?] undertake to transport. I charge you further that a common carrier may relieve itself of liability by showing that the goods were damaged before it received the goods as in bad order, or that they were in fact in bad order when received, the presumption of law is that they were in good order, and the burden of proof is upon such carrier to show that it was free from negligence, and that its negligence did not cause or contribute to the damage. I charge you further that under the Federal law, if the jury should determine that the damage was caused by a defect or vice in the property, and that the carrier was not negligent, the plaintiff would not be entitled to recover. That means not negligence, under the rules as I have charged you, the duty resting upon the carrier to take extraordinary care of the property, but it is a question for the jury, in this case, whether or not defendant, if you believe under the rules I have given you, that the goods were delivered to it for transportation in good order, and that that presumption has not been rebutted under the rules I have given you, whether or not the carrier has shown itself free *26 from negligence. The burden of proof, under those rules as I have charged you, would be upon the carrier to show that the goods delivered to it for transportation to another State, were not caused, that is the damage was not caused, if there were any damages, by its negligence." There is no merit in special ground 3 (numbered 7).
3. The evidence of which complaint is made in special ground 2 (numbered 6) is not subject to the criticism that it was argumentative. The witness nowhere stated, in his explanation of the customs and regulations of carriers as to notice of damage to goods transported, that the goods in the instant case were not damaged by the defendant. There is no merit in this special ground.
4. In such a case as indicated in division 1, a trial court does not err, in the absence of request, in failing to charge: "Any common carrier or transportation company receiving property for transportation in one State . . . to a point in another State, shall issue a receipt or a bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused . . . by any common carrier . . . or transportation company . . . to which such property may be delivered or over whose line or lines such property may pass. . ." Where it appears that in its general charge the trial court instructed the jury: "I charge you the burden of proof, under the rules I have given you, would be upon the carrier, if you believe from the evidence the . . . [goods] were delivered to it for transportation to show by a preponderance of evidence that it had made proper delivery. And if, under the rules I have given you, the jury, should determine that it had made proper delivery of . . . [the goods], I charge you the plaintiff could not recover." There is no merit in special ground 4 (numbered 8).
5. In such a case as indicated in division 1, a trial court does not err, in the absence of a request, in failing to charge that "where a shipment is made in interstate commerce on a bill of lading with order to notify another person not the consignee, the carrier is liable to the shipper if delivery is made to one other than the holder of the bill of lading," where it appears from the evidence that there was no dispute between the parties that the goods had been delivered to the consignee without proper notification to the holder of the order-notify bill of lading, but, that the dispute involved only the question of delivery or no delivery of the goods to the consignee. There is no merit in special ground 5 (numbered 9).
6. Counsel for the plaintiff in error impliedly abandons the general grounds of its motion for a new trial by conceding that the evidence authorized the verdict and the general grounds are, therefore, not considered. Code § 6-1308.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337535/ | 93 S.E.2d 835 (1956)
141 W.Va. 595, 56 A.L.R. 2d 756
C. V. MARTIN et al.
v.
Andrew C. WILLIAMS et al.
No. 10758.
Supreme Court of Appeals of West Virginia.
March 13, 1956.
*836 Sidney J. Kwass, Edmund C. Stone, Jr., Bluefield, M. E. Boiarsky, Charleston, for appellants.
Joseph M. Sanders, Arthur F. Kingdon, Bluefield, for appellees.
BROWNING, President.
This is an appeal from a decree of the Circuit Court of Mercer County perpetually enjoining the defendants Williams and Othling from "conducting, operating and maintaining at its present location the used car sale business described in the pleadings and the evidence; and it is further adjudged, ordered and decreed that said defendants shall, within thirty days from the date of entering the decree, remove from said tract or parcel of land all automobiles, trucks, light poles, wires, lights, equipment, installations and structures used by them in the conduct of the used car sales business."
The property of the defendants consists of an 11.75 acre tract fronting 312.6 along the south line of a portion of U. S. Routes 21 and 52, known locally as the Cumberland Road. The northern line of the Cumberland Road is also the southern corporate *837 limit of the City of Bluefield. The plaintiffs Martin and Lilly reside on the northern side of the road, within the corporate limits, and in an area zoned by the City of Bluefield as residential, Martin directly opposite a portion of the frontage of the defendants, and Lilly the second lot to the east of Martin. The plaintiffs Doak, Moyer and Richardson live on the southern side of the road, Doak adjoining the land of defendants to the west, and Moyer adjoining the land of defendants to the east. Richardson adjoins Moyer to the east. All land lying on the southern side of the road is without the corporate limits of Bluefield, and, of course, not zoned for any purpose, and no restrictions are contained in the deeds thereto. The plaintiff Richardson built his home in 1923, and, at the present time, has "considerably more than $50,000" invested in it; Doak, in 1946-47, more than $40,000; Lilly, 1948," Martin, 1949, $18,500; and Moyer, 1950-1951, $48,400.
Prior to 1953, there were no businesses located along the south side of the road from the intersection of Cumberland Road with Bland Road, to the east, to the intersection with Jefferson Drive to the west, a distance of approximately 1,000 feet and the area in which the plaintiffs and defendants have their properties. However, there was a small grocery store just to the east of Bland Road, and farther on, approximately a mile, a motel. To the west there was a group of business establishments at the intersection of Cumberland Road and Washington Street, approximately 300 feet west of Jefferson Drive. Farther west are located several farms which, from aerial photographs, have fine homes and well tended acreages. Due to the topography, none of the business establishments in either direction were visible from the properties of the plaintiffs, with perhaps the exception of Doak. Cumberland Road is heavily travelled, approximately 3,000 vehicles a day, and there is evidence that other business establishments and a new high school are contemplated along the southern side of the road within a mile on either side of the plaintiffs.
Defendant Williams, after a long search for a suitable site on which to expand his automobile business, acquired his land from one Matz in 1953. Matz had acquired the land from one Peters, who had offered to sell to some of the plaintiffs. Matz, prior to Moyer's building his home, had conveyed to him the information, directly or indirectly, that he had acquired the land for business purposes, having in mind a motel, and offered to either sell that land or buy Moyer's land, which offer was declined.
After acquiring the land from Matz, defendants proceeded to install a "used car lot" on the front portion of the property. A small office was built, painted a vivid yellow and vermillion, three parallel strings, of approximately 100 bulbs each, of electric lights were suspended at a height of approximately 15 feet, a canopy sufficient for one automobile to be placed thereunder, and an advertising banner and streamers were placed on the lot. As described by one witness, it was a "typical, well-kept used car lot", and, by another, that it had a "garish, carnival atmosphere." The lot was open from 8:30 a. m. to 8:30 p. m., Monday through Saturday, and from 12:30 until 8:30 p. m. on Sunday. The 8:30 closing hours fluctuated with the presence or absence of customers on the lot.
Plaintiffs testified that the strings of lights, which were kept on until approximately 9:00 p. m., after which one half of the back row of lights were kept burning, lighted up their yards and porches, and in some instances the inside of their dwellings, including the bedrooms, and greatly interfered with, if not destroying, their use and enjoyment of their properties; that the noises, incident to raising and lowering of automobile hoods, testing of brakes, voices of customers and employees (in two instances profanity); the unsightliness of some of the merchandise; *838 the attendant incidents of such a business depreciated the values of the properties some 50% in most instances, and slightly less in regard to the Doak and Lilly properties; and constitutes a nuisance. The plaintiffs, while varying as to resentment of various types of business which might be established on the lot, concur in their abhorrence of the used car business, and, generally, would resent the properties' use for anything other than residential purposes.
Defendants, during the pendency of the suit, installed hooded flood lights for the purpose of all night lighting, which lights are directed down into the lot, and cast no light on plaintiffs' properties. However, since there is no testimony that the string lights were removed, it may be presumed that they are still burned until approximately 9:00 p. m. Defendants also minimize any noise that results from the conduct of the business, and state that it is small in comparison to the noise normally arising from the highway in front of plaintiffs' properties. Defendant Williams maintained a table showing the number of people visiting the lot during a twenty day test period which shows that the maximum number of people in one day was 65, the minimum, 11; the daily average, 30, and the hourly average 11. He further stated that the present use as a used car lot is temporary, that he contemplates erecting a modern new car showroom and office with service building, and, perhaps erecting a shopping center in the central part of the property. Testimony was offered in his behalf that this area was an excellent business location, and, as heretofore mentioned, other businesses have acquired or are attempting to acquire property along the southern edge of Cumberland Road.
The court found that the used car business in this area constitutes a nuisance, and granted the injunction above quoted. The operation of a used car lot is a lawful business, and, as a general rule, it cannot be a nuisance per se. However, from the circumstances surrounding its location and operation, it may become a nuisance per accidens or a nuisance in fact. The threshold question for determination then is whether the trial chancellor was justified from this record in holding that the defendants' used car lot was placed in an exclusive residential area. Much of the hundreds of pages of testimony taken, and many of the scores of exhibits and photographs introduced as evidence, are directed to that question. The distances estimated in the testimony and the contentions with regard thereto in briefs of counsel do not clearly show the proximity of certain business establishments situated on the south side of Cumberland Road, and their proximity to the area in question.
Defendants' Exhibit No. 1, prepared by Elmer C. Barton, Civil Engineer, on February 3, 1954, showing the entire City of Bluefield, and the location of the residences, business establishments and vacant areas south of Cumberland Road, is revealing. Beginning at a point approximately one mile east of the used car lot, there is a motel, and between the motel and the used car lot, there is only one business establishment, that being a one story brick building, the Henderson Grocery Store, which is approximately 600 feet east of the nearest residence of the plaintiffs. Continuing along Cumberland Road toward the west beyond the used car lot, the next business establishment is a two story asbestos shingle building operated as a grocery store by a man named Burton. That store is approximately 350 feet west of the nearest residence of plaintiffs. The Burton Grocery Store and a gasoline service station are on or near the southeast corner of Cumberland Road and Bland Road. Route 52 turns south at this point along Bland Road, and in close proximity to Cumberland Road there are several business establishments, such as a plumbing company, an electrical shop, a laboratory, an apartment building and a cinder block building in which is operated "Slaughter's *839 Garage". As heretofore stated, because of the topography of the area, none of these establishments can be seen from the residences of any of the plaintiffs, with the possible exception of the Doak property, and noises emanating therefrom cannot be heard by any of the plaintiffs where they reside. Continuing west on Cumberland Road, there is located on the Calfee estate, approximately one mile west of the used car lot, an establishment described as a "Drive-In Restaurant", known as the "Beacon", and a short distance west of the Beacon there is a substation of the Appalachian Electric Power Company. There are no other business or commercial establishments between the substation and the West Virginia-Virginia State line, which constitutes the western limits of the City of Bluefield. Beginning a few hundred feet west of the Bland Road-Washington Street intersection, and continuing east to the motel, there are thirty-one residences, and many vacant lots or tracts of land south of Cumberland Road. The trial chancellor confined his holding to the area between the intersection of Bland Road with Cumberland Road and the Jefferson Drive-Cumberland Road intersection, a distance of approximately 1,250 feet, in which lies the used car lot and the residences of the plaintiffs, as well as other residences both on the north and the south sides of Cumberland Road. There was sufficient evidence before the trial chancellor to justify his finding that the defendants placed their used car lot in an exclusive residential district.
The plaintiffs alleged in their bill, and by their evidence attempted to prove, that the manner of operation of the used car lot was such as to constitute a nuisance because of the effect of the lights, noises, unsightliness of the lot, and the resulting diminution in value of their properties. Since the determination of the questions presented depends upon the facts, it becomes necessary to relate some of the evidence.
Plaintiff Richardson stated that: "* * so we have been driven off of our west porch. In the front yard there is nothing between us and this used car lot, and the high illumination from all of those lights is so strong that you can read a newspaper in my front yard, and certainly that detroys any sense of privacy that might exist about a home and is an unwelcome intrusion." He testified further that the lights did not bother his family inside their home, but that the brilliance of the lights was such that it was a strain on a person's eyes to face them. He said: "To be sureyou wouldn't sit and face them." He further testified as to the reduction in value of his property as a result of the establishment of the lot.
The plaintiff M. R. Moyer stated: "* * the whole thing, as a matter of fact, is just about as hideous in my opinion, as any one would care to look upon." The witness further described the "unsightly truck bodies" upon the lot near his premises, and, with reference to the lights, stated: "Now, in our home the lights flood our living room; they flood our library to the extent that it's necessary that we keep our draperies in that room drawn. They flood our dining room, and, to a degree, our kitchen. From the rear of the home the sleeping area and the entire back part of the mountain is just almost as light as day. * * *" He stated that after nine o'clock p. m., there was usually only one strand of lights burning during the remainder of the night, but that there had been two recent exceptions when there was "great business going on in the business hut, and they were on until after 10:00 o'clock all over the lot." He further stated that there was "* * * a constant racing of cars around there, on a gravel terrain, and anyone with any experience certainly can comprehend what that does to one's surroundings." His testimony was to the effect that business was conducted on the lot on Sundays beginning at approximately 12:00 o'clock noon.
*840 Goldie Moyer, one of the plaintiffs and the wife of M. R. Moyer, testified as to the lights as follows: "Well, in the first place, it has ruined the privacy of my living room. It has ruined the privacy of my front yard. It has ruined the privacy of my side porch. It has ruined the privacy of my terrace, and it has almost ruined the privacy of my bedroom. We can't draw the curtains because we have to have a little air at night, & the whole back yard is flooded with light from the bright lights, his back lights. He leaves them on, of course, all the timeall night long." "* * * As I said, it has ruined the privacy of the whole house unless I go to the bathroom and close the door and pull the shades down." She further described the noise from the lot by men talking in a loud tone of voice, "racing of motorsthey do that a lot, and it's terribleand lifting up hoods and slamming them down." She stated, in answer to the question as to how the enjoyment of her home had been affected, that: "It has ruined it." When asked if she was a woman of normal sensibilities, Mrs. Moyer stated: "I certainly am. I taught school for twenty years, and I feel if you teach school that long, you're pretty normal."
Lillian Lilly, wife of Robert C. Lilly, whose residence is directly across the road from the Moyer residence, stated that the operation of the lot interfered with the "comfort and enjoyment" of their residence, and further stated: "You don't like to get out in your yard with all that racket and the bright lights." She was asked if the lights affected "the eyes in any way", and stated: "Well, there is some glare." She further testified that the lot was a very busy place on Sunday, and that it was kept open for business on Sunday evening until "About eight or nine."
Carl V. Martin, another plaintiff, testified that: "One of the main features besides the lights is that people come there, sometimes children and sometimes not, and throw paper cups and napkins into our yard, and it necessitates a continuous picking up." He stated that: "We only have one bedroom that the light shines in. That's on the west side. But our porchyou don't like to sit out there. It's bright as daylight." With reference to the noise, he stated: "Well, opening and closing car doors and slamming down the hoods and pulling in there and putting on the brakes and sliding on the gravel. Lots of times there's loud talking." He was further asked about "the sign and the canopy and the little hut", and stated: "* * * It has a carnival appearance, pretty gaudy colors; then at night when the wind blows those lights, they move, and you catch your head going this way and that way. We keep our blinds closed and our front door closed on account of them." This witness, whose residence is within the corporate limits of the City of Bluefield, stated that since 1948 there had been ten or twelve residences erected within three or four hundred feet of his property.
Eva Martin, another plaintiff, whose residence is directly across the road from the lot, stated: "Well, I think it's objectionable in every way. You can't lie down to take a little nap. Now, I had been sick for a good, long while, and Sunday afternoon I thought I'd sleep a little. The cars were pulling in and out there the whole time, brakes being put on, hoods raising and loweringyou couldn't rest for the noise. I think Sunday was about one of the worst days I have ever seen there." She stated that: "* * * we pick up trash constantly. * * *", which is blown from the lot into her yard. She also testified that: "* * * I have seen cars up there where it would be congested, and the cars couldn't get by, and they have turned around through our circular drivewayright in my drivewaycame in this way and went out that way." With reference to the lights, she stated: "* * * Now, our front door has four little panes about like this (indicating). I take a towel each night and put adhesive tape on each *841 corner and cover that. I have to, because I couldn't even sleep with the glare in there. I have a mirror that that light reflects right onthat light." She also stated that: "* * * We can't sit on our porch any more." Prior to the establishment of the used car business, the witness stated that there was no business establishment within view of her home.
The plaintiff C. W. Doak did not testify, he being in bad health and away from the City of Bluefield at the time depositions were taken, but his son, Earl Doak, stated that his father's property was adversely affected by the lights. He testified that: "All of Mr. Doak's bedrooms are on that side where the lights are on, and they shine in those windows. Mr. Cousins has put up draw drapes, and they always had venetian there before."
Several witnesses who were engaged in the real estate business in the City of Bluefield, and others qualified as appraisers of real property values in that area, testified as to the substantial reduction in the value of the plaintiffs' properties, as a result of the establishment of the used car lot in close proximity thereto. J. S. Hall, who stated that he had been in the real estate business in the City of Bluefield for approximately fifty years, testified as to the area lying between Jefferson Street and Jefferson Drive on the west, and Bland Road where it intersects with Cumberland Road on the east, prior to the establishment of the used car lot, that: "* * * it was a high-class neighborhood, and until this sales lot was opened out there, it was exclusively residential." He further stated that it was "desirable for residential purposes."
As heretofore stated, the defendants no longer kept the rear strand of lights burning after business hours, approximately 9 p. m., but it is not clear whether that precaution was taken before or after the testimony of the plaintiffs had been introduced. Thereafter, hooded flood lights were installed for the purpose of night lighting after closing hours.
The Legislature has given authority to cities and towns of this State to establish residential areas by zoning ordinances, but it has not adopted legislation in this regard in unincorporated areas, although some states have done so. Since there is no legislation to the contrary, the common law remains in effect. It has long been established that courts of equity may, in a proper case, abate a private nuisance. Mandatory injunctions are awarded for the abatement of nuisances more frequently that for other purposes. Lyons v. Viglianco, 122 W.Va. 257, 8 S.E.2d 801.
Although this Court has considered the question of private nuisances upon many occasions, and the cases elsewhere are innumerable, we find few in which the sole question at issue was the casting of lights upon another person's premises. In The Shelburne, Inc., v. Crossan Corporation, 95 N.J.Eq. 188, 122 A. 749, an injunction was issued prohibiting the use after midnight of an electric sign which cast light on plaintiff's hotel in such a manner that the light shone directly into the bedrooms of the hotel, thereby lowering their value as such. No other factor but light was involved in that case.
There are numerous nuisance cases where artificial light was cast upon the premises of another, by the operation of gasoline service stations, playgrounds, circuses, athletic events, et cetera, but it is not clear from many of the decisions whether relief was granted upon that ground alone, or whether other elements of nuisance contributed to the final adjudication of the case. 5 A.L.R. 2d 705, under the annotation "Casting of light on another's premises as constituting actionable wrong."; 39 Am.Jur., Nuisances, P. 323, et seq.; 66 C.J.S., Nuisances, § 8; 28A, Words and Phrases, Nuisance Per Accidens, page 744.
*842 In Snyder v. Cabell, 29 W.Va. 48, 1 S.E. 241, 251, occupants of dwelling houses sought to enjoin the defendants from operating a skating rink situate near the residences of plaintiffs. The trial court dismissed the bill, but this Court reinstated the original temporary injunction, and made it perpetual. The Court, in the opinion, said: "* * * We base the propriety of the injunction on the noise alone." The 5th syllabus point reads as follows: "Where the prosecution of a business, of itself lawful, in the neighborhood of a dwelling-house, renders the enjoyment of it materially uncomfortable by noises alone, the carrying on of such business, while it produces such result, will be restrained by a court of equity."
In Powell v. Bentley & Gerwig Furniture Co., 34 W.Va. 804, 12 S.E. 1085, 1088, 12 L.R.A. 53, plaintiff sought to enjoin defendants from the operation of a furniture factory on the ground that it was a nuisance to the plaintiff in the use and enjoyment of his nearby lot and dwelling house. Plaintiff subsequently instituted an action of trespass on the case for damages, which action at law was pending in the same court when the decree enjoining the operation of the factory was pronounced. The Court said: "On the question of nuisance, the evidence is conflicting; at any rate the plaintiff does not put his case high and dry, above all ground of fair questioning. There is enough perhaps for the chancellor to have directed an issue. But this issue the plaintiff by his suit at law has already brought on and made up. Under such a conflict of evidence, the suit at law should have been tried first. * * *" The factory had been erected at a cost of $30,000.00, and employed more than sixty people. This Court also found that the plaintiff and his witnesses "seem to be, by reason of ill health or by nature, rather supersensitive to such things."
In Ritz v. The Woman's Club of Charleston, 114 W.Va. 675, 173 S.E. 564, 182 S.E. 92, this Court affirmed a decree of the Circuit Court of Kanawha County finding that dances conducted at the clubhouse of the defendant, in a residential district of the City of Charleston, were a nuisance, and enjoining their continuation after nine o'clock at night. The first syllabus point states: "Noise alone may create nuisance, depending on time, locality, and degree."
The cases from other jurisdictions upon this phase of the issue are so numerous that it would serve no good purpose to attempt to discuss them in detail. Suffice to say that, like all of the other cases involving injunctive relief against nuisances, each was decided upon its particular facts, and the facts of no two such cases are identical. 14 M.J., Nuisances, § 8; 39 Am. Jur., Nuisances, p. 323 et seq., 66 C.J.S., Nuisances, § 28, p. 781 et seq.; 28A, Words and Phrases, Nuisance, page 669.
In considering the aesthetic aspects of this cause, we have given careful consideration to three decisions of this Court. In Fruth v. Board of Affairs, 75 W.Va. 456, 84 S.E. 105, L.R.A.1915C, 981, the 3rd. syllabus point reads as follows: "An ordinance of a municipal corporation ordained pursuant to a provision of its charter authorizing it, establishing a building line on a certain street and inhibiting abutting owners from encroaching thereon, based on merely aesthetic considerations, is not within the police power, and is unenforceable as a police regulation." In State ex rel. Nunley v. Mayor and City Council of the City of Montgomery, 94 W.Va. 189, 117 S.E. 888, a peremptory writ of mandamus was awarded directing the City of Montgomery to grant a permit to Nunley to build a public garage in a residential district of the city. Although the decision was based upon the inaccuracy of the ordinance, in that it did not fully prescribe for the regulation of such buildings, and definitely set forth the area in which they could not be constructed, the respondents' contention that the garage would be unsightly, obnoxious and objectionable to the residents of the block, was discussed briefly. The latest decision of *843 this Court upon the question is Parkersburg Builders Material Company v. Barrack, 118 W.Va. 608, 191 S.E. 368, 371, 192 S.E. 291, 110 A.L.R. 1454. Upon the suit of the owners of property in the vicinity of a lot used by the defendant for the outdoor storage and wreckage of abandoned automobiles, the Circuit Court of Wood County entered a decree abating the alleged nuisance. The decree was reversed by this Court, the injunction dissolved, and the bill dismissed upon the ground that the section of the City of Parkersburg, wherein the defendant's wrecking lot was situated, was "not a clearly established residential community." The only syllabus point states: "Where a section of a city is not a clearly established residential community, equity will not be warranted in excluding therefrom as a nuisance an automobile wrecking business merely on the ground of unsightliness." While it may be considered obiter dictum because of the holding that the defendant's business was not in a clearly established residential community, Judge Maxwell, speaking for the Court, used language which creates a strong implication that the decision would have been to the contrary had the wrecking business been established in an exclusive residential area. It was said in the opinion that: "Happily, the day has arrived when persons may entertain appreciation of the aesthetic and be heard in equity in vindication of their love of the beautiful, without becoming objects of opprobrium. Basically, this is because a thing visually offensive may seriously affect the residents of a community in the reasonable enjoyment of their homes, and may produce a decided reduction in property values. Courts must not be indifferent to the truth that within essential limitations aesthetics has a proper place in the community affairs of modern society." "Of course, equity should not be aroused to action merely on the basis of the fastidiousness of taste of complainants. Equity should act only where there is presented a situation which is offensive to the view of average persons of the community. And, even where there is a situation which the average person would deem offensive to the sight, such fact alone will not justify interference by a court of equity. The surroundings must be considered. Unsightly things are not to be banned solely on that account. Many of them are necessary in carrying on the proper activities of organized society. But such things should be properly placed, and not so located as to be unduly offensive to neighbors or to the public. * * *" Judge Maxwell quoted at some length from the opinion of the Supreme Court of the United States in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303, a part of which states: "`* * * A nuisance may be merely a right thing in the wrong place,like a pig in the parlor instead of the barnyard. * * *`" He further stated that: "An automobile junk yard is not necessarily an objectionable place. The business of buying old automobiles, wrecking them and selling serviceable parts as such and junking the residue is an honorable and useful business. But an outdoor lay-out of a business of that kind necessarily is not pleasing to the view. Such business, therefore, should not be located in a community of unquestioned residential character." Judge Kenna, in a concurring opinion, took sharp issue with the language of the Court upon the discussion of the aesthetic phase of the case. He contended that it was not only obiter dictum, but in conflict with the decision of this Court in Fruth v. Board of Affairs, supra.
Upon the question of reduction in value of the plaintiffs' properties, as the result of the establishment of the used car lot nearby, we find this statement in Wood on Nuisances, 3rd Edition, § 640: "Mere diminution of the value of the property, in consequence of the use to which adjoining premises are devoted, unaccompanied with other ill-results, is damnum absque injuria." Also in 66 C.J.S., Nuisance, *844 § 19, p. 771, it is stated that: "However, a use of property which does not create a nuisance cannot be enjoined or a lawful structure abated merely because it renders neighboring property less valuable."
In addition to the diminution of property value, plaintiffs rely upon the casting of light upon their premises, disturbance by noises, and the destruction of the aesthetic nature of the neighborhood. The following statement in 39 Am.Jur., Nuisances, § 45, we believe states the general rule: "The law takes care that lawful and useful business shall not be put a stop to on account of every trifling or imaginary annoyance, such as might offend the taste or disturb the nerves of a fastidious or over refined person. But, on the other hand, it does not allow anyone, whatever his circumstances or conditions may be, to be driven from his home or compelled to live in it in positive discomfort, although caused by a lawful and useful business carried on in his vicinity. The maxim `sic utere tuo ut alienum non laedas' expresses the well established doctrine of the law." However, this maxim, that a person should use his own property in such a manner as not to injure that of another, is of little value in a determination of the issue in this or similar cases. Again, it is a question of fact in each case as to whether the lawful use of the property by one person causes such damage to the property of another that a court of equity will take cognizance of it, and relieve the injured person by the drastic procedure of requiring the one who produces the injury to cease a lawful business.
Particular reference will be made to only a few of the many cases in the digests to which general reference has been made in this opinion. A nuisance is anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable. Adams v. Hamilton Carhartt Overall Co., 293 Ky. 443, 169 S.W.2d 294; A nuisance is anything which interferes with the rights of a citizen, either in person, property, the enjoyment of his property, or his comfort. Thornton v. Dow, 60 Wash. 622, 111 P. 899, 32 L.R.A., N.S., 968. A condition is a nuisance when it clearly appears that enjoyment of property is materially lessened, and physical comfort of persons in their homes is materially interfered with thereby. Russell v. Nostrand Athletic Club, 212 A.D. 543, 209 N.Y.S. 76. When the prosecution of a business, of itself lawful, in a strictly residential district, impairs the enjoyment of homes in the neighborhood, and infringes upon the well-being, comfort, repose, and enjoyment of the ordinary normal individual residing therein, the carrying on of such business in such locality becomes a nuisance, and may be enjoined. Jordan v. Nesmith, 132 Okl. 226, 269 P. 1096. In Kobielski v. Belle Isle East Side Creamery Co., 222 Mich. 656, 193 N.W. 214, 31 A.L.R. 183, it was held that noises made on a Sunday may constitute a nuisance, although they would not be such if made on a week day.
We have given careful consideration to a modification of this decree. That it is drastic in that it not only requires the defendants to cease the business which they are now conducting, but to remove all of the fixtures from the lot which they own, cannot be denied. However, we have determined that no modification can be made which will permit the efficient exercise of the defendants' rights to conduct this particular business at that place, and still protect the plaintiffs against the injury which must result to them therefrom. Perhaps the decree could be modified to require the defendants to close their business at sunset so that no lights would have to be burned, and that they should cease to do business on Sunday. However, the testimony, and the inferences that may be drawn from it, indicate that the defendants' business is best on week-ends, particularly on Sunday, and at night. Even such a modification would not eliminate the other *845 elements of nuisance upon which the decree was based. That part of the decree which requires defendants to remove their equipment from the lot cannot be harmful to them if they must cease the used car business at that place. The hut, the lights, the poles and the displays are necessary in the operation of their used car business; they can be easily transported and used at another location.
The question of whether there exists a nuisance per accidens, or a nuisance in fact, is, by its very definition, dependent upon the proof adduced before the trial chancellor. The well established rule, that the findings of a trial court will not ordinarily be disturbed upon appeal, applies to the findings of the chancellor. A finding of fact from conflicting depositions is entitled to peculiar weight, and will not be disturbed by this Court unless it is manifestly wrong. Poling v. Bennett, 103 W.Va. 456, 137 S.E. 883. In Matney v. Blakely, 97 W.Va. 291, 124 S.E. 918, 919, the Court stated in the opinion that: "* * * The general rule is that this court will not reverse a decree rendered on conflicting depositions of such doubtful and unsatisfactory character that different judges might reach different conclusions, although the appellate court might have rendered a different decree if it had acted in the first instance. * * *" The rule was enunciated in this language in Spurgin v. Spurgin, 47 W.Va. 38, 34 S.E. 750: "It has also been well settled that in doubtful cases the decree of the circuit court will prevail, as this Court never makes a `last guess', nor disturbs the decrees of the lower court unless plainly erroneous." Upon a careful examination of the testimony, the exhibits and the law applicable to the issue presented, we are unable to say that the decree of the trial chancellor in this cause was erroneous. The decree will be affirmed.
Affirmed.
HAYMOND, Judge (dissenting).
I dissent from the decision of the majority in this suit affirming, without modification, the final decree of the circuit court which, as indicated in the majority opinion, perpetually enjoined the defendants from operating or maintaining, at its present location, on property owned by them, an admittedly lawful business of selling used automobiles, and by mandatory injunction required the defendants, within thirty days from the entry of the decree, to remove from their land numerous designated articles of equipment, including all automobiles, trucks, light poles, wires, lights, installations and structures used in connection with the operation of that business. By that harsh and drastic action a court of equity summarily destroys a legitimate business, inflicts substantial loss upon its owners, and without affording them an opportunity to alter or adjust its operation, materially restricts and impairs the vested property right of the defendants to use and enjoy their land and the designated articles of equipment located on it. I can not subscribe to such an arbitrary and unwarranted result which, in my opinion, constitutes a manifest invasion of established property rights of the defendants and, in this instance, is neither just nor necessary.
The plaintiffs contend, in seeking injunctive relief, and the majority holds, that though the operation conducted by the defendants is a lawful business and is not a nuisance as a matter of law, its location in an exclusive residential district, the excessive number of lights and the period of their use and the noise, in connection with its operation, the unsightly appearance of certain structures and objects on the premises, and the resultant reduction in the value of the properties of the plaintiffs constitute the business, as so conducted, a nuisance in fact because of the methods employed. With that conclusion I do not agree.
*846 It is well settled by prior decisions of this Court that a lawful business does not constitute a nuisance as a matter of law. State ex rel. Ammerman v. City of Philippi, 136 W.Va. 120, 65 S.E.2d 713; Parkersburg Builders Material Company v. Barrack, 118 W.Va. 608, 191 S.E. 368, 192 S.E. 291, 110 A.L.R. 1454; The Central National Bank v. City of Buckhannon, 118 W.Va. 26, 188 S.E. 661; Chambers v. Cramer, 49 W.Va. 395, 38 S.E. 691, 54 L.R.A. 545; McGregor v. Camden, 47 W.Va. 193, 34 S.E. 936. A lawful business, however, may constitute a nuisance in fact by reason of its improper location or the manner in which it is conducted. Parkersburg Builders Material Company v. Barrack, 118 W.Va. 608, 191 S.E. 368, 192 S.E. 291, 110 A.L.R. 1454; Spears v. Goldberg, 122 W.Va. 514, 11 S.E.2d 532, 12 S.E.2d 513; Lyons v. Viglianco, 122 W.Va. 257, 8 S.E.2d 801; McGregor v. Camden, 47 W.Va. 193, 34 S.E. 936.
In State ex rel. Ammerman v. City of Philippi, 136 W.Va. 120, 65 S.E.2d 713, this Court held that a business operated in a town for repairing, recapping or vulcanizing automobile tires is not a nuisance per se. This Court has also held in The Central National Bank v. City of Buckhannon, 118 W.Va. 26, 188 S.E. 661, that a gasoline filling station in a city is not a nuisance per se, in Chambers v. Cramer, 49 W.Va. 395, 38 S.E. 691, 54 L.R.A. 545, that a blacksmith shop or a machine shop in a town is not a nuisance per se, and in McGregor v. Camden, 47 W.Va. 193, 34 S.E. 936, that oil and gas wells are not nuisances per se.
In Parkersburg Builders Material Company v. Barrack, 118 W.Va. 608, 191 S.E. 368, 192 S.E. 291, 110 A.L.R. 1454, this Court refused to abate as a nuisance, and to enjoin its operation, an automobile wrecking business conducted on land owned by the defendant, in a section of the city of Parkersburg which contained both residences and business establishments, on which he had assembled about 125 old automobiles and on which he had erected a barbed wire fence seven or eight feet in height, and in the syllabus used this language: "Where a section of a city is not a clearly established residential community, equity will not be warranted in excluding therefrom as a nuisance an automobile wrecking business merely on the ground of unsightliness."
The grounds relied on by the plaintiffs and on which the injunctive relief awarded them is based, consisting of the noise produced, the light, and the unsightliness of the objects and the structures, used in connection with the operation of the business of the defendants, considered separately or collectively, are obviously not sufficient to support or justify the conclusion that the business of the defendants, as presently conducted, constitutes a nuisance.
Noise alone may create a nuisance; but whether noise does or does not create a nuisance depends upon the time, the locality, and the degree of the noise. Ritz v. The Woman's Club of Charleston, 114 W.Va. 675, 173 S.E. 564, 182 S.E. 92; Snyder v. Cabell, 29 W.Va. 48, 1 S.E. 241. Every noise that may occur in connection with a business, however, does not create a nuisance. To create a nuisance a noise which occurs in a residential district must be unusual and recurrent, and it must prevent sleep or disturb materially the rest and the comfort of the residents, or cause them great personal discomfort and continual annoyance. See Ritz v. The Woman's Club of Charleston, 114 W.Va. 675, 173 S.E. 564, 182 S.E. 92. The rule is that a noise which creates a nuisance must be such as materially to interfere with and impair the ordinary physical comfort of existence of ordinary people. Powell v. Bentley and Gerwig Furniture Company, 34 W.Va. 804, 12 S.E. 1085, 12 L.R.A. 53. The opinion in the Powell case, prepared by Judge Holt, contains these pertinent statements:
"Every man, as we have seen, has the exclusive dominion and the right to the *847 full and exclusive enjoyment of his own property, to do with it as he pleases. His neighbor has the same right over his own property. Hence it follows as the duty of each to so use his own as not to injure that of the other, each one's duty qualifies his own right and creates a corresponding right in the other.
"* * *. But this duty must be taken with qualifications, for, in the nature of things and of society, it is not reasonable that every annoyance should constitute an injury such as the law will remedy or prevent. One may therefore make a reasonable use of his right, though it may create some annoyance or inconvenience to his neighbor."
In State ex rel. Ammerman v. City of Philippi, 136 W.Va. 120, 65 S.E.2d 713, the opinion uses this language: "Considerable evidence is produced by respondents tending to show that residents of the vicinity wherein petitioner has heretofore operated his business were greatly annoyed by noises and obnoxious odors arising therefrom. Petitioner controverts this and a number of witnesses support his contention. We think it clear, and do not understand respondents to contend otherwise, that the business conducted by petitioner is not a nuisance per se. No doubt some noises and some odors obnoxious to some individuals result therefrom. This is not sufficient, however, to constitute a business a nuisance per se."
In Ritz v. The Woman's Club of Charleston, 114 W.Va. 675, 173 S.E. 564, 182 S.E. 92, the defendant was enjoined from conducting dances after nine o'clock at night at its club house near the homes of the plaintiffs in a residential section of Charleston. Previous to the institution of the suit and until June, 1930, fifty eight public dances, which continued far into the night, had been held at the club house. The evidence showed that those dances were patronized by a large number of persons many of whom came to them in automobiles; that all of them were very noisy; that some of them were attended with boisterous, drunken and unseemly conduct; that some of the dancers committed indecent trespasses on neighboring properties; and that the dances deprived the plaintiffs of rest and sleep and otherwise greatly annoyed them. From June until November, 1930, the defendant discontinued dances at the club house but between November, 1930, and April, 1931, when the suit was instituted, ten private dances were held and those dances lasted each night until midnight. The evidence, however, showed that there was little, if "any, improvement in the conduct of the private dances as compared to the conduct of the dancers at the previously conducted public dances; that the noises at the private dances, including the music and the sounds caused by the arrival and the departure of the dancers, their laughter and loud conversation in calling to each other, the operation of the automobiles, and the blowing of horns, were as irritating as the noises which occurred at the public dances. Upon the foregoing facts, established by the evidence, the circuit court did not prohibit all dances at the club house but enjoined the continuance of dances there after nine o'clock at night. On appeal that decree of the trial court was affirmed by this Court.
In Snyder v. Cabell, 29 W.Va. 48, 1 S.E. 241, a skating rink, located about thirty feet from the residence occupied by two of the plaintiffs in Charleston was held to be a nuisance and enjoined because of the noise produced by its operation. In that case the evidence clearly showed that the rink was operated almost every day and night except Sunday and that the noise caused by the skaters, which was loud and similar to the sound of a train of cars crossing a covered bridge, and the noise caused by the crowds of people attending the rink, by the shouts of persons in the audience, and by the sounds in connection with the skating, deprived the persons occupying two of the homes of the plaintiffs of sleep and rest, materially disturbed their comfort and the enjoyment of their homes, and required one *848 of the plaintiffs to leave and vacate his residence.
The noise produced by the operation of the business of the defendants in this case is of an entirely different character from the noises which were shown to exist in the Ritz case and in the Snyder case and which justified the injunction awarded in each of those cases. Those noises were created by large groups of persons, some of whom engaged in extremely loud conversation and boisterous and disorderly conduct, and included shouting and the sounding of automobile horns late at night. No noise or conduct of that sort has occurred in connection with the business of the defendants. The only noise which it has created consisted of the ordinary conversation of persons in small groups, the average number of which was eleven during any hour of the weekday business period of from about eight thirty o'clock in the morning until about nine o'clock at night, some profanity heard on two occasions by one of the plaintiffs while he was outside of his house, the sound of unloading motor cars on one occasion, the sound of lowering the hoods of automobiles, and the sound caused by automobiles in arriving at, travelling upon, and departing from the land owned by the defendants. These noises were neither strange nor of unusual intensity. They were audible "to some extent" at the residence of one of the plaintiffs but there is no showing that they deprived the plaintiffs of sleep or materially disturbed their comfort or their enjoyment of their homes. They were of the same general character of the noises produced by the heavy daily vehicular traffic consisting of the movement of approximately 3,200 automobiles which occurs during the day and at night upon one of the main public highways on which the properties of the plaintiffs and the defendants abut. The sounds caused by the conversations of persons and the operation of the automobiles on the premises of the defendants were merely the usual and ordinary sounds produced by such occurrences, in a residential, a business, or an industrial community and such sounds cause only slight and trivial annoyance or inconvenience in any type of community to persons of normal sensibilities. They do not warrant restraint by injunction and they do not justify an injunction in this instance.
"No one is entitled to absolute quiet in the enjoyment of his property; he may only insist upon a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells." Collins v. Wayne Iron Works, 227 Pa. 326, 76 A. 24, 19 Ann.Cas. 991. See also Hannum v. Gruber, 346 Pa. 417, 31 A.2d 99. In 66 C.J.S., Nuisances, Section 22a, the text contains these statements: "Generally, noise is not ex necessitate a nuisance, even when disagreeable. It has been stated that no one is entitled to absolute quiet in the enjoyment of his property, but is limited to a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells. Thus, it has been held that as many useful acts are necessarily attended with more or less noise, reasonable noises in an appropriate locality are not necessarily nuisances, even though they are disagreeable and annoying." See also 39 Am.Jur., Nuisances, Section 47. Certainly the sounds incident to the ordinary operation of automobiles are not inconsistent with the standard of comfort which prevails in any community in which people of ordinary sensibilities reside and in which automobiles are customarily used and operated.
The foregoing comments directed to the noise of which the plaintiffs complain apply with equal force to the lights used by the defendants, the ultimate effect of which was to illuminate the lawns and the porches of the residences of the plaintiffs and to cast their rays into the living room, the library, the dining room, the kitchen, and the bath room of the residence of one of the plaintiffs, and the bed room of the residence of another plaintiff, between approximately six thirty o'clock in the evening and nine o'clock at night. The light in the living room, the library, the dining room, the kitchen, the bed room and the bathroom could readily *849 and effectively be prevented by the normal use of shades or drapes without inconvenience to the occupants of those rooms and without impairing their adequate ventilation. At most the lights, like the noise, cause only slight inconvenience and trivial annoyance which do not justify the award of injunctive relief by a court of equity. They should not and, in my judgment, they do not, materially interfere with or impair the ordinary comfort of existence of people of ordinary sensibilities.
Unlike smoke, gases, dust and noxious odors, light is not inherently harmful and it does not unreasonably or substantially interfere with the ordinary use or enjoyment of property. See Amphitheatres, Inc., v. Portland Meadows, 184 Or. 336, 198 P.2d 847, 5 A.L.R. 2d 690. In that case recovery was denied the plaintiff, which operated an outdoor motion picture theatre, of damages from the defendant, which operated a race track on adjoining land, both projects being outside the limits of a nearby city, for injury to and interference with the motion pictures exhibited by the plaintiff caused by flood lights operated by the defendant at a distance of 832 feet from the motion picture screen of the plaintiff. The court held that the operation of the lights by the defendant did not constitute either an actionable trespass or a nuisance. In the opinion the court said:
"If the cases involving smoke, noxious odors, flies and disease germs are claimed to be analogous to the case at bar, it must be answered that in every case the activity or thing which has been held to be a nuisance has been something which was, 1, inherently harmful, and 2, an unreasonable and substantial interference with the ordinary use or enjoyment of property. No one can contend that light is inherently harmful to persons in the ordinary enjoyment of property." * * *.
"By way of summary, we have found no case in which it has been held that light alone constitutes a nuisance merely because it damaged one who was abnormally sensitive or whose use of his land was of a peculiarly delicate and sensitive character." * * *
"We do not say that the shedding of light upon another's property may never under any conditions become a nuisance, but we do say that extreme caution must be employed in applying any such legal theory. The conditions of modern city life impose upon the city dweller and his property many burdens more severe than that of light reflected upon him or it."
In Indian Refining Company v. Berry, 226 Ky. 123, 10 S.W.2d 630, the action by the plaintiff was to recover damages for injury to her residence caused by soot and smoke and odors from gasoline and oil originating in and emanating from a filling station operated by the defendant on an adjoining lot, by the unsightliness of the filling station, and by powerful electric lights used in its operation which interfered with the privacy of the home of the plaintiff. A recovery by the plaintiff was denied. In the opinion the court used this language: "It is not every annoyance, however, that will give a right of action to the person annoyed. The soot and smoke from the heating apparatus at a filling station cannot be different from the smoke and soot from other similar appliances in the vicinity. * * *. Consequently there can be no recovery for the soot and smoke originating in the stove at the filling station. The odors complained of arose from the gasoline and oil, and are not uncommon since the advent of automobiles. It is not shown that there is any reasonable way to operate a filling station without producing the odors of gasoline and oil. Such smells may be offensive to particular individuals, but there is nothing in this record to show any unusual or unnecessary operation of the plant, or violation of the rights of adjoining owners. It is equally true that a person has a right to erect and maintain electric lights on his premises, and people cannot complain that a neighbor uses numerous and brilliant lights on his own land. Light is essential to the *850 operation of a filling station at night, and it is not shown that appellant used excessive or unnecessary illumination."
In 39 Am.Jur., Nuisances, Section 30, the text contains these pertinent statements: "In many cases, the question whether a nuisance has been created depends on the degree of injury done, for not every inconvenience, discomfort, or annoyance is sufficient to constitute a nuisance. But what amount is necessary cannot be defined, and no precise rule can be laid down for determining it. It must be decided according to the circumstances of the particular case, and is largely a question of fact. There must be an appreciable, substantial, tangible injury resulting in actual, material, physical discomfort, and not merely a tendency to injure. It must be real and not fanciful or imaginary, or such as results merely in a trifling annoyance, inconvenience, or discomfort." See also Higgins v. Decorah Produce Company, 214 Iowa 276, 242 N.W. 109, 81 A.L.R. 1199; Metzger v. Hochrein, 107 Wis. 267, 83 N.W. 308, 81 Am. St. Rep. 841, 50 L.R.A. 305; City of Janesville v. Carpenter, 77 Wis. 288, 46 N.W. 128, 20 Am. St. Rep. 123, 8 L.R.A. 808.
The unsightliness of certain objects and structures present and used in connection with the business of the defendants is not sufficient to render such business a nuisance or to justify its abatement as such. "The fact that a thing is unsightly, or that it offends the aesthetic sense, is not in itself sufficient to make it a nuisance." and "Mere unsightliness or other conditions of a purely aesthetic nature are alone insufficient to justify a court's interference." 39 Am.Jur., Nuisances, Sections 29 and 70. "An owner's use of property cannot be restricted on purely aesthetic considerations." 66 C.J.S., Nuisances, Section 19d.
As already pointed out this Court, in Parkersburg Builders Material Company v. Barrack, 118 W.Va. 608, 191 S.E. 368, 192 S.E. 291, 110 A.L.R. 1454, refused to hold that an automobile wrecking business, located in a section of a city which was not an established residential community, constituted a nuisance merely because of its unsightliness. Though the majority opinion in that case contains statements to the effect that unsightly objects should be properly placed and not so located as to be unduly offensive to neighbors or the public, that an automobile filling station and tire repair shop may be a nuisance by reason of its location, and that a business not pleasing to view should not be located in an unquestioned residential community, the soundness of the proposition that mere unsightliness alone does not create a nuisance or justify injunctive relief to abate it, and the support of that proposition by the weight of judicial authority, are convincingly demonstrated by the concurring opinion prepared by Judge Kenna; and the conclusion reached in that case rejects the theory that a nuisance results solely from aesthetic considerations. This Court has also rejected that theory in State ex rel. Nunley v. Mayor and City Council of the City of Montgomery, 94 W.Va. 189, 117 S.E. 888; State ex rel. Sale v. Stahlman, 81 W.Va. 335, 94 S.E. 497, L.R.A.1918C, 77; and Fruth v. Board of Affairs, 75 W.Va. 456, 84 S.E. 105, L.R.A. 1915C, 981.
In the Nunley case this Court said that the unsightliness of a proposed garage, a permit for which was refused by the defendants for that reason and for other reasons, was not a valid ground for such refusal and in the opinion used this language: "The fourth reason is that the garage would be unsightly, very obnoxious and objectionable to the residents of said block. This reason is fully discussed in the case of Fruth v. Board of Affairs, 75 W.Va. 456 [84 S.E. 105]. Judge Miller, in delivering the opinion of the court, says, referring to sec. 118 and 128 of Freund on Police Powers: `The latter sections say, in accordance with the holdings of the courts everywhere, that mere beauty and symmetry of streets or for mere aesthetic purposes, having no reference to the safety, health and morals or general welfare of the community at large, the state may not under the police power regulate or control *851 the use by the owner of private property.' State ex rel. Graham Sale v. C. O. Stahlman et al., 81 W.Va. 335 [94 S.E. 497], says in this connection: `Nor can it be imposed to effect symmetry of the streets or section.'"
In the Fruth case an ordinance which undertook to establish a building line upon a street solely for aesthetic reasons was held to be invalid. Cases in other jurisdictions which hold that an object which is unsightly or offends the aesthetic sense is not solely for that reason a nuisance and may not be abated on that ground alone are Alabama Power Company v. Stringfellow, 228 Ala. 422, 153 So. 629; White v. Bernhart, 41 Idaho 665, 241 P. 367, 43 A.L.R. 23; Whitmore v. Brown, 102 Me. 47, 65 A. 516, 9 L.R.A.,N.S., 868, 120 Am. St. Rep. 454.
Though the adverse effect of the use of property, upon the value of other premises in the neighborhood, is a factor, it is not a controlling factor in determining the existence of a nuisance. 66 C.J.S., Nuisances, Section 19 d. If the use of property does not create a nuisance, it may not be enjoined or a lawful business abated merely because it renders neighboring property less valuable, and there can be no recovery of damages for the diminution in value of neighboring property caused by the lawful use of property in the neighborhood. 66 C.J.S., Nuisances, Section 19d. "It is not enough that the act complained of diminishes the value of the plaintiff's property, or increases the rates of insurance on adjoining property, although depreciation in the market or rental value of his property may be a proper element of damages where a nuisance is otherwise established." 39 Am.Jur., Nuisances, Section 28. In Indian Refining Company v. Berry, 226 Ky. 123, 10 S.W.2d 630, in which it was held that a gasoline filling station was not a nuisance the court said: "When the injury caused by the prosecution of a lawful business is not sufficient to constitute a nuisance in the legal sense, the mere fact that it depreciates the value of property does not give rise to a cause of action. Pearson & Son v. Bonnie, 209 Ky. 307, 272 S.W. 375, 43 A.L.R. 1166." In Batcheller v. Commonwealth ex rel. Rector and Visitors of University of Virginia, 176 Va. 109, 10 S.E.2d 529, in which the location of an airport upon property adjoining the property of the plaintiff was held not to be a nuisance, the opinion contains these quotations from the case of Swetland v. Curtiss Airports Corporation, D.C., 41 F.2d 929: "* * * if it be conceded that the property of the plaintiffs will decrease in value if the airport is permitted to operate, that alone would not entitle the plaintiffs to an injunction. Hazlett v. Markland Refining Co. [8 Cir.], 30 F.2d 808; 46 C.J. 682, Note 25. If the airport is not a nuisance, its operation may not be enjoined because to some extent the value of the plaintiffs' property will be decreased for the purpose to which it is now devoted." See also O'Malley v. Macken, 182 Minn. 294, 234 N.W. 323; Dawson v. Laufersweiler, 241 Iowa 850, 43 N.W.2d 726. As the depreciation in the value of the properties of the plaintiffs, caused by the location and the operation of the business of the defendants, does not of itself constitute a nuisance, and as that business as presently conducted by the defendants is not a nuisance, the diminution in the value of the properties of the plaintiffs does not entitle them to injunctive relief.
For the reasons stated and under the authorities cited and discussed in this dissent, I would dissolve the injunction awarded by the circuit court and dismiss this suit at the cost of the plaintiffs.
Inasmuch, however, as the majority holds that the business as presently conducted by the defendants constitutes a nuisance in fact and the injunction, which the majority opinion concedes is "drastic", compels the defendants to discontinue the business which they are now conducting and to remove all of the fixtures from the lot owned by them, and inasmuch as I disagree with the statement in the majority opinion that "no modification can be made which will permit the efficient exercise of the defendants' *852 rights to conduct this particular business at that place, and still protect the plaintiffs against the injury which must result to them therefrom", which in my judgment is not justified by the evidence, I would modify and limit the scope of the injunction to require the defendants to shorten the period of the use of the lights or to reduce their number or intensity, or both, or to prevent, by the use of appropriate shades, screens or hoods, their rays from extending to the properties of the plaintiffs, which the evidence shows can be done, and with that restriction on the use of the lights, which would remove the main source of annoyance or inconvenience of which the plaintiffs complain, I would permit the defendants to retain and use on their property the articles and the equipment, which the injunction now requires them to remove, and to continue to operate their business at its present location. Without a just and proper modification of the injunction which would permit the defendants to continue the lawful business in which they are now engaged and which would prevent its complete destruction, the facility with which the hut, the lights, the poles and the displays necessary to the operation of their business, can be "transported and used at another location", as suggested in the majority opinion, is of no benefit to the defendants and offers them no satisfaction or no effective substitute for the compulsory loss and discontinuance of a lawful business.
In this instance the majority should have followed and applied the general rule with respect to the scope of the injunction. That rule is that "The decree should not enjoin more than that which constitutes the nuisance, and should never go beyond the requirements of the particular case. Where the injury complained of results from acts that are not a nuisance per se, but only such by reason of the manner in which they are done or the surrounding circumstances, the court will not grant an injunction in such form as absolutely to prohibit the defendant's use of his property, if it is possible to frame a decree which in another form will give the plaintiff the relief to which he is entitled." 39 Am.Jur., Nuisances, Section 172. See McIntosh v. Brimmer, 68 Cal. App. 770, 230 P. 203; Bartlett v. Moats, 120 Fla. 61, 162 So. 477; Pigford v. State, 184 Miss. 194, 183 So. 259; Weaver v. Bishop, 174 Okl. 492, 52 P.2d 853; Collins v. Wayne Iron Works, 227 Pa. 326, 76 A. 24, 19 Ann.Cas. 991.
Recalling the pertinent expression of Judge Dent in his dissenting opinion in Town of Davis v. Davis, 40 W.Va. 464, 21 S.E. 906, in which this Court, being evenly divided, affirmed the judgment of a circuit court in upholding the action of a municipal council in abating a merry-go-round as a nuisance, that "The power to abate, if it exists, should never be exercised by a town council when the power to regulate will accomplish the same end without the destruction of property or of a lawful avocation.", I similarly assert that the power to abate, which resides in a court of equity, should not be exercised, as it has been in this case, when its power to regulate would accomplish a just and proper result "without the destruction of property or of a lawful avocation."
I am authorized to state that Judge RILEY concurs in the views expressed in this dissenting opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263865/ | 336 A.2d 572 (1975)
Howard R. HUGHES and Hughes Tool Company, Defendants below, Appellants,
v.
TRANS WORLD AIRLINES, INC., Plaintiff below, Appellee, and
The Equitable Life Assurance Society of the United States et al., Certain Additional Defendants below, Appellees.
Supreme Court of Delaware.
Argued September 25, 1974.
Decided February 26, 1975.
George Tyler Coulson, of Morris, Nichols, Arsht & Tunnell, Wilmington, and Chester C. Davis and Maxwell E. Cox, of Davis & Cox, New York City, for defendants below, appellants.
Louis J. Finger, of Richards, Layton & Finger, Wilmington, and Dudley B. Tenney, Paul W. Williams, Marshall Cox and Michael P. Tierney, of Cahill Gordon & Reindel, New York City, for plaintiff below, appellee.
Leroy A. Brill, of Bayard, Brill & Handelman, Wilmington, and Marvin Schwartz, of Sullivan & Cromwell, New York City, for Ernest R. Breech, additional defendant below, appellee.
William Prickett, of Prickett, Ward, Burt & Sanders, Wilmington, and John R. Hupper and Andrew P. Tashman, of Cravath, Swaine & Moore, New York City, for certain other additional defendants below, appellees.
Before DUFFY and McNEILLY, JJ. and BIFFERATO, Judge.
*573 DUFFY, Justice:
This appeal brings up for review an order of the Court of Chancery denying a motion to dismiss the complaint and granting motions to dismiss certain counterclaims.
I
The case involves a contest, long in litigation, between Howard R. Hughes and Hughes Tool Company (Toolco) (defendants), on the one side, and Trans World Airlines, Inc., (plaintiff), on the other.[1] The pertinent facts are stated in the opinion of the Vice Chancellor, 317 A.2d 114 (Del.Ch.1974), and we will restate them *574 only to the extent necessary as we consider defendants' argument for reversal.[2]
II
In Hughes Tool Co. v. Trans World Airlines, Inc., supra (1973 opinion), the Supreme Court of the United States concluded that TWA's complaint against Toolco for alleged anti-trust violations and damages should be dismissed and, in accordance with its mandate, the United States District Court for the Southern District of New York entered a judgment of dismissal.
Briefly, the complaint in this action is based on alleged violations of fiduciary duties to the corporation and its minority stockholders by corporate officers and the majority stockholder. For present purposes, it appears that the facts alleged are substantially the same as those pleaded in the anti-trust action. Defendants argue that the Federal judgment bars prosecution of this case. They say that judgment was valid, final, personal and on the merits of the same claims asserted here (and which could have been asserted there). In so contending, they invoke the familiar doctrine of res judicata.
Res judicata embodies a rule of public policy that courts as well as litigants should have rest and repose from vexatious renewal of the same lawsuit. Epstein v. Chatham Park, Inc., 52 Del. 56, 153 A.2d 180 (1959). It precludes a second attempt to litigate the same "cause of action" and, under certain circumstances, matters which might have been litigated in the prior suit. Ezzes v. Ackerman, Del.Supr., 234 A.2d 444 (1967). Clearly, a valid, final and personal judgment entered on the merits of a controversy puts to rest all matters litigated. Restatement of Judgments § 48 (1942).
Central in the rule is the rationale that a person is entitled to an opportunity to once litigate a claim on its merits, and once only. Renewal of the same claim after disposition on its merits is not permissible, whatever the theory. But basic to the principle of rest and repose is the notion that one is entitled to his day in court on the merits of a claim. This means that a judgment for a defendant, which is valid and final but not "on the merits," is conclusive only as to what is actually decided. Restatement, supra, § 49.[3]
These principles are well known and, indeed, there is little, if any, dispute about them as long as they remain in abstraction. But our duty is to test them against the submissions in the dispute, and now we do so.
As we have noted, the Toolco (and Hughes)-TWA litigation has been ongoing for years but, beyond doubt in deciding this case, the key opinion is the 1973 decision by the United States Supreme Court. That was dispositive of all litigation in the Federal Courts and it mooted all that had gone before which was inconsistent with the result. The default by Toolco and the entry of a money judgment were among the casualities of the Supreme Court mandate.
The Supreme Court opinion considers many matters but our reading persuades us of two things which are significant for present purposes: first, the Court considered the controversy only and entirely in the context of the Federal anti-trust statutes; and, second, it did not consider *575 whether the complaint stated a cause of action under those statutes.
As to the first of these, an extended review of the opinion by Justice Douglas is not needed to document the conclusion that the Court diposed of the litigation entirely on the basis of anti-trust principles, statutory and decisional.
"It is our view," he wrote, "that the Court of Appeals erroneously rejected" Toolco's defense that the transactions attacked in the complaint "were under the control and surveillance of the Civil Aeronautics Board and by virtue of the Federal Aviation Act of 1958 these transactions have immunity from the anti-trust laws." He discussed the Federal Aviation Act, the duty and authority of the Civil Aeronautics Board, the relationship of Toolco and TWA and the Board's duty to supervise it, and specific transactions approved by the Board. Following the Court's earlier decision in Pan American World Airways Inc. v. United States, 371 U.S. 296, 83 S. Ct. 476, 9 L. Ed. 2d 325 (1963), he found that CAB jurisdiction "pre-empts the anti-trust field." In short, Justice Douglas found that the way in which control of an air carrier is exercised is under CAB surveillance, "not in the hands of those who can invoke the sanctions of the anti-trust laws."
And then, as to the Federal complaint on which the case reached the Supreme Court, Justice Douglas wrote: "Whether or not that complaint states a cause of action under the anti-trust laws is a question we do not reach." Since the Court did not reach even the allegations of the complaint, it obviously did not consider the merits of the proof offered by TWA in support thereof.[4]
Given the basis on which the Supreme Court ordered termination of the litigation in the Federal Courts, we cannot say (in either law or justice) that the merits of the controversy were reached. The merits were reached in the District Court where a default had been entered, evidence had been received and a money judgment entered (and affirmed by the Circuit Court). But all of that was made irrelevant by what the Supreme Court decided. Certainly it made no factual adjudication. And it disposed of the litigation, not on the basis of default or evidence or money judgment, but on the transactional immunity conferred by the CAB under the Federal Aviation Act to a complaint founded on a Federal anti-trust statute.
In this context we conclude that the decision by the United States Supreme Court was not "on the merits" of the same claims alleged here to be violations of Delaware fiduciary law. Thus a significant requirement for a bar by res judicata is missing. Epstein v. Chatham Park, Inc., supra; Restatement, supra, § 49, and that defense does not stop the litigation.
III
There are other arguments to consider and weigh, and we now turn to defendants' contention that, under Rule 41(b) of the Rules of Civil Procedure, the dismissal by the District Court in New York was an adjudication on the merits.
Chancery Rule 41(b), Del.C.Ann., like the Federal Rule, provides that
"... [u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits."
To the extent defendants argue that the Supreme Court opinion directing dismissal was an adjudication on the merits, for purposes of this case, the contention is without merit for reasons already stated. But *576 it was the District Court which entered the dismissal order and the argument by defendants obliges us to examine what was done in and by that Court.
Judge Metzner filed an opinion with the order of dismissal so we have the benefit of his view of what was done, and that is particularly significant since Rule 41(b) attaches consequences to a dismissal "[u]nless the Court ... otherwise specifies."
First, it is clear that the dismissal was upon the merits "as far as the federal claims are concerned." But, in our view, a fair reading of Judge Metzner's opinion does not lead to the same conclusion about the non-federal claims. On the contrary, we are satisfied that he believed such claims are not barred by his order. Thus, he wrote that "it does not follow that such a dismissal [in the Federal Court] would be a bar to the nonfederal claims" and then discussed Calderone Enterprizes Corp. v. United Artists Theater Circuit, Inc., 2d Cir., 454 F.2d 1292 (1971), cert. den. 406 U.S. 930, 92 S. Ct. 1776, 32 L. Ed. 2d 132 (1972). In that case the Second Circuit stated that since "federally-based claims were properly dismissed prior to trial,... pendent state claims must also be dismissed and the plaintiff relegated to the state courts for relief." Judge Metzner particularly noted that the dismissal in Calderone had not been made without prejudice, and then he said this:
"... I gather from this that such a safeguard is not necessary to protect whatever rights plaintiff may have in this regard. It might also be argued that, standing alone, the court is without jurisdiction of the state claims and thus the dismissal is for lack of subject matter jurisdiction which is not on the merits under Rule 41(b)."
The Court was under a mandate from the United States Supreme Court "to dismiss the complaint" and its reluctance to amend that directive was explicit, while observing that there is doubt as to whether an amendment "is necessary to protect the interests of the parties."
Under Rule 41(b) a prior dismissal operates as an adjudication upon the merits unless the court in its dismissal order otherwise specifies. We are satisfied that the District Court intended that its order would not settle non-federal claims and, to that significant extent, it otherwise specified. Thus, neither the order nor the Rule, singly or in combination, operates as an adjudication to bar assertion of the claims here.
IV
We turn now to defendants' argument that the claims alleged in the complaint could have been asserted in the Federal action under the theory now advanced. In brief, they say that the Federal Court would have taken pendent jurisdiction of the claims based upon violation of fiduciary duties and the right to litigate such claims in the state forum terminated with the judgment in that Court.
Acceptance of pendent jurisdiction by a Federal Court is a matter of judicial discretion. While such jurisdiction has been taken by those Courts for many years, the key opinion defining it was written by Justice Brennan after the TWA-Toolco-Hughes litigation had been ongoing for some five years. In United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), the Court stated:
"... Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim `arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *,' ... and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional `case.' The federal claim must have substance sufficient to confer *577 subject matter jurisdiction on the court.... The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.
That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them,... Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." (Citations and footnotes omitted.)
We are asked to hold now that if the District Court had been requested in 1961 to exercise its discretion and take jurisdiction of the non-federal claims based upon violation of Delaware fiduciary duties, it would have done so; and we are further asked to hold now that had it done so the Federal Courts would in some way or other have dealt with the claims.
It is true that the District Court was asked to and did accept jurisdiction of TWA's (non-federal) claim for tortious interference with its business, but in divining what might have been a dozen years ago we cannot ignore what has taken place in the law since then.
In Gibbs the Supreme Court "completely reformulat[ed] the doctrine; [and] greatly expanded the permissible exercise of pendent jurisdiction" in the Federal Courts. UMW v. Gibbs and Pendent Jurisdiction, 81 Harv.L.Rev. 657 (1968). But even with that expansion, Gibbs makes clear that if Federal claims, which are substantial in a jurisdictional sense, are dismissed before trial, "the state claims should be dismissed as well." While in one sense the TWA claims in the Federal Court were not dismissed before trial, the result of the Supreme Court opinion (which in no way deals with the merits of the claims) surely gives that effect. To state the point somewhat differently, if an action for alleged violation of an anti-trust statute is now filed in a Federal Court, and if the Transactions in question have been approved by the CAB, there can be no doubt that the complaint will be dismissed and, under Gibbs, the Court will not assume jurisdiction of pendent (state) claims.[5]
*578 In short, we have the benefit of hind-sight in deciding whether the TWA claims alleged for violation of Delaware fiduciary duties should be regarded as ones over which the Federal Court would have assumed jurisdiction (as it did with the claim for tortious interference) and we cannot ignore what the United States Supreme Court decided both in this case and in Gibbs. Admittedly, the issue has its uncertain aspects because the Court did take on the claim for tortious interference. But, in our view, it would elevate speculation over reality to now dispose of this case by theorizing about what might have been (had the State claims been raised pendently in 1961).
And if there were any doubt about what ruling should be made the commands of justice require us to give TWA its day in court on the claims.
It should also be noted that the Chancery complaint was filed in 1962 and defendants did nothing to either bring it on for disposition or to ask the Federal Court to accept jurisdiction of the claims. On the contrary, in 1963 defendants joined TWA in persuading the Vice Chancellor to let the case (and, necessarily, the claims made herein) rest while awaiting determination of the Federal case. The Court did so and defendants acquiesced therein for ten or eleven years.
In sum, we decline to deny TWA all opportunity to litigate its claims on the theory that the Federal Court would have taken jurisdiction of them.
V
Next, we consider defendants' argument that the CAB orders, which the Supreme Court held were a defense to the Federal action, likewise bar this action.
Section 414 of the Federal Aviation Act, 49 U.S.C. § 1384, provides that any person affected by an order under § 408 is relieved
"... from the operations of the `anti-trust laws' ... and of all other restraints or prohibitions made by, or imposed under, authority of law, insofar as may be necessary to enable such person to do anything authorized, approved, or required by such order."
The Vice Chancellor found that neither the purpose of the Act nor its case history bars a state action based on breach of a fiduciary duty.
Essentially, defendants argue that § 414 means what it says and that, once CAB approval is given, all other restraints or prohibitions are barred.
Locating state law in areas subject to Federal regulatory jurisdiction is difficult but that does not mean it has vanished. Certainly state power (and responsibility) does not disappear merely because there is Federal regulation in an area of commerce. The guiding principle was restated by the Supreme Court in Merrill Lynch Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 94 S. Ct. 383, 38 L. Ed. 2d 348 (1973), when it considered the extent to which authority delegated under a Federal regulatory statute (Securities Exchange Act of 1934 § 6, 15 U.S.C. § 78f preempts state (labor) law; the Court quoted from an earlier opinion by Justice Brennan, thus:
"The principle to be derived from our decisions is that federal regulation of a *579 field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons either that the nature of the regulated subject matter permits no other conclusion or that the Congress has unmistakably so ordained."
As the Vice Chancellor stated, the purpose of the Federal Aviation Act is to centralize power in the public interest so that rules may be made for the "safe and efficient use of the nation's air space." Air Line Pilots Association, International v. Quesada, 2 Cir., 276 F.2d 892 (1960). Section 414 must be read in light of that purpose and the specific preservations of common law (and statutory) remedies by § 1106 of the Act, 49 U.S.C. § 1506, which provides:
"Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies."
We deal here with an intra-corporate conflict. The claims are large, the events are dated and complex; but in essence, the contest simply invokes standards of conduct applicable to corporate fiduciaries and litigated over the years in Delaware Courts. Nothing has been called to our attention which persuades us that the Congress intended to preempt State power to regulate such conduct (as part of our "housekeeping" function, if nothing more) and vest it in the CAB. What remedies would the Board provide? What judgments would it render? What protection would it accord to minority stockholders, and by what process?
The short of it is that the CAB's basic mission and competency is, as Chief Justice Burger emphasized in his dissent in Hughes Tool, supra, the regulation of entry into and competition within the air transportation industry. There has been here no showing that any general Federal purpose is vested in the CAB to preempt state regulation of the intra-corporate affairs of those subject to CAB jurisdiction for airline regulation purposes. See Newmark v. RKO General Inc., S.D.N.Y., 294 F. Supp. 358, aff'd 2 Cir., 425 F.2d 348 (1970); and Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., 372 U.S. 714, 83 S. Ct. 1022, 10 L. Ed. 2d 84 (1963); and compare Colonial Airlines v. Janas, 2 Cir., 202 F.2d 914 (1953), in which the Court noted that it is "clear from ... the Act," 49 U.S.C. § 676, that the CAB had not made any determination of state law liability running to a corporation from its officers on charges of defalcations.
We must, and of course do, give deference to all that the CAB approves within the jurisdiction assigned it by the Congress. And we specifically refrain from any comment as to the significance of CAB approval of any specific transaction upon liability of defendants. As TWA concedes in its brief, whether any particular issues were finally determined in the Federal action is not at issue in this appeal. We are concerned here only with defendants' contention that a blanket immunity flows from § 414, no matter the circumstances. We decide that TWA may proceed with the litigation.
VI
Finally, we take up the counterclaims defendants filed against The Equitable Life Assurance Society of the United States, Metropolitan Life Insurance Company, Irving Trust Company, Harry C. Hagerty, Ernest R. Breech and Charles Tillinghast, Jr. (additional defendants) seeking injunctive and other relief. The Vice Chancellor ordered dismissal of the counterclaims on the ground that they are barred by the doctrine of res judicata.
As we understand defendants' argument, they say that if the Vice Chancellor's order stands and the Federal order is not a bar to TWA's action, this Court should require an even-handed result; that is, "Both should be dismissed or neither."
*580 In our opinion the Vice Chancellor was right in dismissing the counterclaims. Defendants' argument assumes that the rationale for dismissals by the Federal Court of the complaint and the counterclaims was the same, and that is not so. We have already discussed at some length the basis for dismissal of the complaint as ordered by the United States Supreme Court. The counterclaims were dismissed, not on the absence of a statutory remedy or CAB approval, but specifically on their merits and "with prejudice" because of Toolco's "willful and deliberate disobedience of and failure and refusal to comply with" certain discovery orders of the District Court.[6] The Court of Appeals affirmed, 2 Cir., 332 F.2d 602 (1964), and its decision became final when the United States Supreme Court dismissed its writ of certiorari as improvidently granted. 380 U.S. 249, 85 S. Ct. 934, 13 L. Ed. 2d 818 (1965).
* * *
Affirmed.
NOTES
[1] Privity between Hughes and Toolco is conceded by each side and for present purposes their positions are indistinguishable.
[2] See also the many opinions in the Federal Courts; thus: Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 93 S. Ct. 647, 34 L. Ed. 2d 577 (1973); rehearing den. 410 U.S. 975, 93 S. Ct. 1435, 35 L. Ed. 2d 707 (1973); cert. granted 405 U.S. 915, 92 S. Ct. 960, 30 L. Ed. 2d 785 (1972); 2 Cir., 449 F.2d 51 (1971); S.D.N.Y., 359 F. Supp. 783 (1973); S.D.N.Y., 312 F. Supp. 478 (1970); S.D.N.Y., 308 F. Supp. 679 (1969). Earlier opinions are reported at 380 U.S. 248, 85 S. Ct. 934, 13 L. Ed. 2d 817 (1965); 379 U.S. 912, 85 S. Ct. 261, 13 L. Ed. 2d 184 (1964); 2 Cir., 332 F.2d 602 (1964); S.D.N.Y., 214 F. Supp. 106 (1963); see also: 40 Del. Ch. 552, 185 A.2d 886 (1962).
[3] We do not consider such matters as jurisdiction and capacity. See Comment a to § 49.
[4] The Court did discuss five transactions which were a basis of damages awarded by the District Court but it did so only for the purpose of determining whether such transactions were "neutralized" by CAB approval.
[5] Defendants rely upon Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970) and Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974), in support of a contrary proposition. In both of those cases the pendent (statutory) claim was Federal (appended to Federal constitutional claims), not state, and the distinction is significant in the process of conjecturing whether or not a Federal Court will entertain a pendent claim. As Justice Douglas said in his concurring opinion in Rosado:
"The main distinction between this case and Gibbs is that the pendent claim here was one of federal rather than state law. And it is clear from the opinion in Gibbs that the factor of federal-state comity is highly relevant in deciding whether or not the exercise of pendent jurisdiction is proper. Thus the Court stated: `There may, on the other hand, be situations in which the state claim is so closely tied to questions of federal policy that the argument for exercise of pendent jurisdiction is particularly strong.' Id., at 727, 86 S. Ct., at 1139. Since the claim involved here is one of federal law, the reasons for the exercise of pendent jurisdiction are especially weighty, and exceptional circumstances should be required to prevent the exercise."
Hagans discussed state claims but only in the context of attachment to Federal constitutional claims, thereby invoking the preference for first deciding non-constitutional issues. As the Hagans Court said:
"... [T]he rationale of Gibbs centers upon considerations of comity and the desirability of having a reliable and final determination of the state claim by state courts having more familiarity with the controlling principles and the authority to render a final judgment. These considerations favoring state adjudication are wholly irrelevant where the pendent claim is federal but is itself beyond the jurisdiction of the District Court for failure to satisfy the amount in controversy. In such cases, the federal court's rendition of federal law will be at least as sure-footed and lasting as any judgment from the state courts."
It is Gibbs which deals explicitly with a pendent state claim, and we follow its rule.
[6] As to the first five Federal counterclaims; the sixth counterclaim was disposed of on the merits, TWA's motion for summary judgment being granted by the District Court. These six Federal counterclaims are identical in scope to the four counterclaims asserted in this Chancery action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725229/ | 396 Mich. 99 (1976)
237 N.W.2d 475
PEOPLE
v.
ALCALA
Docket No. 57439.
Supreme Court of Michigan.
Decided January 29, 1976.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Raymond L. Scodeller, Prosecuting Attorney, and Lawrence J. Emery, Assistant Prosecuting Attorney, for the people.
PER CURIAM:
The defendant was charged on a three-count indictment with rape, MCLA 750.520; MSA 28.788, assault with intent to commit rape, MCLA 750.85; MSA 28.280, and gross indecency, MCLA 750.338b; MSA 28.570(2). He was jury-convicted of rape and gross indecency.
An examination of the record discloses that no written requests for instructions were made. The court instructed the jury, following which a recess was declared. During the recess the court conferred with counsel for the purpose of recording objections to the instructions. Only one objection was made by counsel for the defendant, and that *100 one was not pertinent to any issue which caused the Court of Appeals to reverse the defendant's convictions. After the jury had deliberated for approximately two hours it returned to the court with questions and received supplemental instructions from the court. In giving the supplemental instructions, the court properly used a blackboard and, as indicated by the transcript,
"The record will reflect that printed upon the blackboard, so that in the event that anyone chooses to review the conduct of this Court, printed upon the blackboard and used by the Court in the course of its instructions are the following words: On the left-hand side, count one, rape. Underneath that, number one, guilty of rape. Two, assault with intent to rape. Three, assault and battery. Four, simple assault. Five, not guilty. The first four items are lined out and were lined out as the Court passed over them in instructing the jury in their deliberations."
Counsel were present and made no objections to the supplemental instructions.
An examination of the transcript and of the instructions in their entirety indicates that there were no unusual circumstances and no manifest and serious errors on the basis of which appellate intervention absent preservation of error could be predicated. People v Dorrikas, 354 Mich. 303; 92 NW2d 305 (1958).
The Court of Appeals is reversed and defendant's convictions are reinstated.
WILLIAMS, LEVIN, COLEMAN, FITZGERALD, LINDEMER and RYAN, JJ., concurred.
KAVANAGH, C.J.
I concur in the result for the reason that I do not find the instructions to be erroneous. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263634/ | 233 Pa. Super. 186 (1975)
Eller et al., Appellants,
v.
Work.
Superior Court of Pennsylvania.
Argued December 3, 1974.
March 31, 1975.
*188 Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, and SPAETH, JJ. (VAN DER VOORT, J., absent).
G. Clinton Fogwell, Jr., with him John L. Lachall, and Reilly and Fogwell, for appellants.
C. Robert Elicker, Jr., with him Timothy H. Knauer, for appellee.
OPINION BY HOFFMAN, J., March 31, 1975:
The appellant, plaintiff below, contends that the trial judge committed reversible error in charging the jury on the "choice of paths" doctrine and in allowing the introduction of allegedly inadmissible hearsay testimony.
The minor-appellant, Richard Eller, age thirteen, was walking next to his brother, Frank Eller, Jr., on Isabel Lane in West Goshen Township, Chester County, at 7:00 p.m., on February 15, 1972. There are no sidewalks on either side of this suburban street and the lawns lead straight to the roadway. Frank Eller testified that he was walking on the lawns while the appellant was walking *189 at the edge of the road. The appellee was driving in the same direction as the boys were walking and struck the appellant from behind. Appellant's brother testified that the first indication of an approaching car was the sound of squealing brakes. When he heard the brakes, appellant's brother turned and saw the appellant being struck. The brother further testified that the car was in motion at the point of impact and that the appellee's car was the only one on Isabel Lane at that time.
Anthony DiRocco, the investigating officer, testified on direct examination that in the course of his investigation he "asked who the operator of the vehicle was, and Mr. Work came forth and said he was operating the vehicle." On cross-examination, Officer DiRocco testified that the appellee told him that both boys were walking on the roadway. The appellant's objection was overruled by the trial court.
In his charge, the trial judge first defined negligence, proximate cause and contributory negligence. He then instructed the jury on the "choice of paths" doctrine, which was defined in Garvin v. Pittsburgh, 161 Pa. Super. 140, 53 A.2d 906 (1947), as follows: "It is well settled that where a person has a choice of two ways, one of which is perfectly safe and the other subject to obvious risks, and voluntarily chooses the latter and is injured, he is guilty of contributory negligence." 161 Pa. Super. at 143, 53 A. 2d at 908, quoting Graham v. Reynoldsville Borough, 132 Pa. Super. 296, 300, 200 A. 681, 682-683 (1938). In general, the court's charge was extensive and contained a complete explanation of legal principles. The appellant contends, however, that the charge was improper because no evidence was adduced at trial from which the jury could infer that the appellant negligently chose a dangerous route when a safe route was available.
It is clear that the appellant could not be deemed contributorily negligent for merely walking on the roadway. *190 It is well-settled in Pennsylvania that "[i]n the absence of sidewalks the rights of pedestrians upon the highway are equal to those of motor vehicles; and a pedestrian walking along the right side of a paved roadway is not required to turn and look for approaching traffic . . . nor is he required to step off the highway to permit the automobile to pass . . ." Burkleca v. Stephens, 370 Pa. 371, 373, 88 A.2d 57, 59 (1952), quoting Neidlinger v. Haines, 331 Pa. 529, 200 A. 581 (1938). See also South v. Gray, 223 Pa. Super. 442, 302 A.2d 459 (1973). Thus, the appellant was lawfully proceeding at the edge of the road. Moreover, there is no evidence of record to indicate that the appellant was inattentive to his own safety.[1] The appellee presented no evidence, and the only possible implication of contributory negligence revealed by the appellant's case was the fact that he was lawfully walking *191 on the roadway, when he could have chosen to walk with his brother on the grassy plots.
It is apparent that the "choice of paths" rule applies only if two distinct ways exist, one of which is clearly recognizable as safe and the other as involving danger, and if the pedestrian has the freedom to choose between them. Kinee v. Penn Radio Cab Co., 435 Pa. 387, 257 A.2d 554 (1969); Perry v. Pittsburgh Railways Co., 357 Pa. 608, 55 A.2d 354 (1947). For example, in DeFonde v. Keystone Valley Coal Co., 386 Pa. 433, 126 A.2d 439 (1956), the decedent was deemed contributorily negligent as a matter of law because he darted between a shovel and a bulldozer at a coal mining site, when he could easily have walked around them. In Tharp v. Pennsylvania Railroad Co., 332 Pa. 233, 2 A.2d 695 (1938), the decedent was held contributorily negligent because he attempted to cross railroad tracks when he could have used the bridge spanning the tracks.
The appellant in the present case could not be held contributorily negligent as a matter of law because a roadway without sidewalks is not a path presenting hazards "so manifest as to deter the general public and ordinarily careful people from using it . . ." Garvin v. Pittsburgh, 161 Pa. Superior Ct. at 144, 53 A.2d at 908. Further, as stated by Mr. Justice MUSMANNO: "There is no law which requires anybody to follow any particular course in reaching his destination . . . Even if the alternative course could be determined hypothetically safer but the one chosen is still free of hazard and authorized by law, a tortfeasor may not escape responsibility for his negligence by maintaining that the person injured through his (the tortfeasor's) negligence could have escaped injury by taking the alternative route." Hopton v. Donora Borough, 415 Pa. 173, 176, 202 A.2d 814, 815-816 (1964). The appellant argues, however, that the facts of record were insufficient to allow the jury to determine that he was negligent in his choice of routes.
*192 This Court faced a similar factual pattern in Millen v. Miller, 224 Pa. Super. 569, 308 A.2d 115 (1973). There, plaintiff's decedent was walking on the side of a roadway and was struck from behind by the defendant. There were no sidewalks but there was a dirt berm approximately eight feet wide. During closing argument, defense counsel stated that the decedent might have had a safer route to travel, and that decedent might have been running in the defendant's path. Our Court held the argument improper: "There was absolutely no evidence in the record that there was a safer route for the decedent to take or that the decedent was trotting or running. Such evidence would have implied an element of contributory negligence . . . Having no evidence to support him, defense counsel erroneously and prejudicially argued inferences not in the record. This constituted error . . ." 224 Pa. Super. at 572-573, 308 A. 2d at 117. The Court also held that it was error for the judge not to give an immediate cautionary instruction to the jury. The existence of the berm apparently did not persuade our Court that a safer route existed. Cf. Galloway v. Employers Mutual of Wausau, 286 So. 2d 676 (La. 1974).
While the present case appears to fall within the ambit of Millen v. Miller, supra, it is not necessary to decide whether this record presented sufficient evidence to warrant a charge on the existence of a safer alternative. First, the court's charge exceeded the limits of the "choice of paths" doctrine: ". . . In that regard you will consider the testimony and you will have to ascertain and determine whether the minor plaintiff was on the road or grass at the time and was there a safer place to which he could have gone once he knew of the danger." The jury was left free to believe that even if the appellant was on the grass there was a safer route available, such as a street with sidewalks. There is nothing on record to support such an inference.
*193 Secondly, it was prejudicial error for the court to allow Officer DiRocco to testify on cross-examination, over timely objection, that ". . . by his [the appellee's] statement both were walking on the road." The challenged testimony was an extrajudicial utterance offered to prove the truth of the matter asserted and thus constituted hearsay.
Neither the appellee nor the lower court argues that the appellee's declaration falls within one of the recognized exceptions to the hearsay rule.[2] Rather, both contend *194 that the testimony was properly admitted because the appellant had "opened the door" to this line of questioning by asking Officer DiRocco on direct examination whether during the course of investigation he had determined who was driving the automobile.[3] In its opinion, the lower court stated: "The testimony of the officer concerning his identification of the driver by the defendant's own admission was properly admissible and the remainder of the statement made to the officer in conducting his investigation was likewise admissible." This reasoning completely ignores the existence of the rule prohibiting the admission of hearsay declarations. The appellee was present at trial and could have testified regarding his version of the events surrounding the accident. A self-serving hearsay declaration should not be admitted in lieu of the declarant's own testimony.
The appellee argues that even if this testimony was barred by the hearsay rule, its admission was harmless error because the appellant's own testimony placed him on the roadway. The appellant's brother had stated that he was walking on the grass while the appellant was *195 walking at the edge of the street. The appellee's hearsay declaration placed both boys on the road. Thus, the jury could have determined that the appellant was proceeding several feet into the street and was contributorily negligent for not walking on the extreme right-hand side of the road.
Judgment of the lower court reversed and the case remanded for a new trial.
PRICE, J., concurs in the result.
VAN DER VOORT, J., did not participate in the consideration or decision of this case.
NOTES
[1] The court's charge apparently left room for the jury to find that the appellant committed contributory negligence while walking on the roadway by being inattentive to his own safety. "In the absence of sidewalks the rights of pedestrians upon the highway are equal to those of motor vehicles . . . However, a pedestrian cannot, with immunity [impunity?], walk or stand on a country roadway in the face of a [sic] unknown approaching vehicle. He is under a duty to use reasonable care to observe approaching vehicles from both directions and you will have to determine whether or not this minor plaintiff had such an occasion as he was walking that day."
It was possible, therefore, for the jury to have concluded that the appellant was negligent in regard to his own safety by determining that he was walking with "immunity" on the roadway. Such a finding would be totally unsupported by the record. The only testimony on the issue revealed that the first sign of the appellee's vehicle was the sound of squealing brakes. The appellant testified that he was unable to remember the events of the accident, thus creating the presumption that he exercised due care. Kmetz v. Lochiatto, 421 Pa. 363, 219 A.2d 588 (1966). Apparently, however, this portion of the charge was not specifically objected to at trial and was not raised in the appellant's post-trial motions. Therefore, it will not be considered on appeal. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).
[2] The only conceivable exception applicable to this declaration would be the concept of res gestae: "A res gestae declaration may be defined as a spontaneous declaration by a person whose mind has been suddenly made subject to an over-powering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties." Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942).
Our Supreme Court has recently stated that four distinct exceptions exist within the scope of res gestae: (1) declarations of present bodily condition; (2) declarations of present mental state and emotion; (3) excited utterances; and (4) declarations of present sense impression. Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974). The testimony at issue in this case can arguably fall only within the excited utterance exception.
According to Professor McCormick, there are two requirements for the applicability of the excited utterance exception: "First, there must be some occurrence or event sufficiently startling to render normal reflective thought processes of an observer inoperative. Second, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought." McCormick, Evidence § 297 at 704 (2d ed. 1972). The facts of the present case (as the appellee apparently recognized) prohibit the use of the excited utterance exception.
The basis for the exception is its spontaneity. "The declaration must be spoken under conditions which insure that it is not the result of premeditation, consideration or design, and it cannot be in the form of a narration or attempted explanation of past events, thus the process of the intellect cannot have had an opportunity to be set in motion. Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966); . . . The exciting event, closely followed by the spontaneous exclamation emanating from the event, insures the truthfulness of the declaration, thus allowing for its admission into evidence." Cody v. S.K.F. Industries, Inc., 447 Pa. 558, 564-565, 291 A.2d 772, 775 (1972). (Emphasis added). The appellee's statement to the investigating officer is not a spontaneous utterance arising from the accident and thus cannot be classified as a "verbal act" on the part of the declarant. The appellee had sufficient time for reflective thought: "The basis for the admission of the utterance is its spontaneity, thus all utterances which do not display the mandated instinctive naturalness must be excluded for fear that the words will emanate in whole or in part from the declarant's reflective faculties." 447 Pa. at 564, 291 A. 2d at 775.
[3] Whether or not the appellant's question was proper is academic because the appellee failed to object. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1865053/ | 516 N.W.2d 273 (1994)
2 Neb.App. 847
STATE of Nebraska, Appellant,
v.
Alvin G. LONG, Appellee.
No. A-93-536.
Court of Appeals of Nebraska.
May 17, 1994.
Gary E. Lacey, Lancaster County Atty. and Patrick F. Condon, Lincoln, for appellant.
Dennis R. Keefe, Lancaster County Public Defender and Scott P. Helvie, Lincoln, for appellee.
HANNON and MILLER-LERMAN, JJ., and NORTON, District Judge, Retired.
MILLER-LERMAN, Judge.
INTRODUCTION
The State was granted leave to docket an appeal pursuant to Neb.Rev.Stat. § 29-2315.01 (Cum.Supp.1992) in order for this court to consider the issue of the method by which to value stolen checks for grading purposes in a theft case. Under the facts of this case, we conclude that where the evidence shows that a check has been accepted in commerce, the face amount of the check is proof of value for grading purposes.
STATEMENT OF FACTS
On July 14, 1992, shortly before midnight, Alvin G. Long entered Joe's Off Sale, a package liquor store, and requested two cases of beer. A few minutes after Long entered the store, Diana Behrens, the store manager, entered Joe's Off Sale to start the closing procedures. Long exited Joe's Off Sale to get more money and returned a few minutes later. Toni LaCour, the clerk working at *274 Joe's Off Sale, ultimately ended up voiding the transaction because Long did not have enough money.
Behrens began her closing procedures, getting checks, a $50 bill, and a paid-out receipt from underneath the cash register drawer and binding them together with a rubberband. Behrens did not go any further with the closing procedures because Long was still in the store and wanted to shop around. Behrens placed the check bundle underneath the counter. Behrens instructed LaCour to go to the lounge area to attend to the other customers.
As Behrens waited, Long brought some wine to the counter and told Behrens that he wanted a cold bottle. Behrens then went into the walk-in cooler two separate times to retrieve what Long requested. As she returned from her last trip to the cooler, Behrens noticed the bundle of checks and cash was missing from underneath the counter. Long then started toward the door, whereupon Behrens ran after him, telling him to bring back the checks. Long was subsequently arrested and later charged with the theft of the checks, $50 cash, and a bottle of cognac taken from Joe's Off Sale. Specifically, the information charged Long with theft of property valued at more than $500 but less than $1,500, in violation of Neb.Rev.Stat. § 28-511(1) (Reissue 1989). Long was also charged with being a habitual criminal, in violation of Neb.Rev.Stat. § 29-2221 (Reissue 1989).
At trial, testimony was given by employees of Joe's Off Sale that all the checks received by Joe's Off Sale on July 14, 1992, were received by Joe's Off Sale in exchange for either merchandise or cash. The checks which were recovered from Long were received into evidence. The aggregate amount of all checks received during trial totaled $639.11.
At the close of the State's case, Long moved to dismiss the information, claiming the State had failed to present a sufficient prima facie case of Long's guilt, and in the alternative requested a dismissal with respect to the allegation that Long had stolen property that was valued at more than $500 on the basis that the State had not made a prima facie case that the value of the property taken exceeded $500. The trial court refused to dismiss the case, but concluded that the evidence failed to support the State's case of theft over $500. The court indicated that the case would be submitted to the jury and that the jury would be asked to determine whether Long was guilty of the offense of theft of property of between $200 and $500, or under $200.
In denying the motion to dismiss, the court cited State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992). The trial court expressed concern that there was the possibility that the checks could be based on insufficient funds; that the checks were difficult for Long to negotiate because of a lack of endorsement; and that, with the exception of a U.S. Treasury check, the checks stolen from Joe's lacked value or there was inadequate evidence of value.
The State objected and argued that the evidence showed the checks were given to Joe's Off Sale in exchange for either merchandise or cash, in amounts equal to the face value of the checks, thus establishing value equal to the face amount of each check. Relying on Neb.Rev.Stat. § 29-2026.01 (Reissue 1989), the State argued that the jury should determine the value of the property stolen. Again, relying on § 29-2026.01, the State objected to the format of the verdict forms. It argued that there should be two forms, one for a verdict of not guilty and another for a verdict of guilty with space in which the jury could supply a dollar amount for the value of the stolen items.
The State's objections and requests in connection with the form of verdict were overruled, and the trial court submitted three verdict forms to the jury. The first form stated that Long was not guilty. The second form stated that Long was guilty and that the value of the property stolen was $200 or less. The third form stated that Long was guilty and that the value of the property stolen was more than $200. In instruction No. 4, the trial court told the jury that in order to find Long guilty of theft, the State must prove, inter alia, that the value of the property taken was either more than $200, or *275 $200 or less. Following deliberations, the jury found Long guilty of theft of property with a value of more than $200.
The State sought and was granted leave to docket an appeal pursuant to § 29-2315.01. The State assigns three errors as follows: (1) The district court for Lancaster County erred in ruling that a check written to an individual has no value until presented to the issuer's bank, (2) the district court for Lancaster County erred in giving jury instruction No. 4, and (3) the district court for Lancaster County erred in giving the verdict forms which did not allow the jury to determine the amount of the property stolen.
ANALYSIS
Long was charged with theft of property, the value of which is greater than $500 but less than $1,500, see § 28-511(1) and Neb.Rev.Stat. § 28-518 (Cum.Supp.1992), and with being a habitual criminal, see § 29-2221. Section 28-511(1) provides as follows: "A person is guilty of theft if he or she takes, or exercises control over, movable property of another with the intent to deprive him or her thereof." Pursuant to § 28-518(2), theft is graded as a Class IV felony "when the value of the thing involved is five hundred dollars or more, but not over one thousand five hundred dollars." Where the value of the thing involved is more than $200 but less than $500, the theft constitutes a Class I misdemeanor. § 28-518(3).
The State argues on appeal that the face amount of the stolen checks is sufficient evidence of their value and that the evidence in this case establishes value in excess of $500. The State further argues that, to the extent that value must be established by a relevant marketplace transaction under State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992), the evidence shows that the checks had been tendered and received in the relevant market in an amount equal to their face value. Thus, because the amount of the checks exceeds $500, the State claims the trial judge erred in limiting the jury's consideration to amounts under $500 by its trial rulings and jury instruction. Long argues that the face amount of the checks is not proof that the value of the property involved is worth more than $500, primarily because the checks could not be negotiated by Long or might be based on insufficient funds.
The method by which to value instruments evidencing debt is a legal question. When deciding questions of law, this court is obliged to reach a conclusion independent of that reached by the trial court. Plambeck v. Union Pacific RR Co., 244 Neb. 780, 509 N.W.2d 17 (1993). The value of the property involved is not an element of the crime of theft, but is relevant to the grade of the offense and determines the penalty that may be imposed on conviction. State v. Garza, supra. "Although value is not an element of theft, the State must prove, by evidence beyond a reasonable doubt, the value of the property that is the subject of the theft charge." Id. 241 Neb. at 263, 487 N.W.2d at 556. It has been held that "[t]he determination of the value of property stolen, upon a conviction of theft, is a question of fact to be determined by the jury." State v. Weaver, 237 Neb. 185, 186-87, 465 N.W.2d 470, 472 (1991). Specifically, pursuant to § 29-2026.01, it has been held that " `[i]n jury trials, the jury must find the value of the property taken and convey that fact to the judge in its verdict....'" State v. Pierce, 231 Neb. 966, 972, 439 N.W.2d 435, 441 (1989).
The value of a stolen check, either endorsed or unendorsed, is not specifically defined by Nebraska statutes, nor is it the subject of Nebraska case law. We note that in a related area, Neb.Rev.Stat. § 28-611 (Cum.Supp.1992) grades insufficient-fund checks based on the face amount of the checks. We are also aware of State v. Reed, 228 Neb. 645, 423 N.W.2d 777 (1988), where in a bench trial, although the trial court did not make a finding of value, it graded the offense in a range which was consistent with the face amount of a stolen check. In Reed, in its journal entry, the trial court found the defendant guilty of the crime charged in the information, which was theft of $1,750. The Nebraska Supreme Court concluded that a value of over $1,000 for grading purposes could be inferred and that it was not error for the trial judge to fail to find a specific amount. The issue of the value of stolen checks for grading-of-theft purposes in a jury *276 trial appears to be one of first impression in Nebraska.
After thoroughly reviewing the literature in this area, we agree with the majority view from other jurisdictions that in a theft case, in the absence of a specific statutory directive determining value, the face amount of a stolen check which has been accepted in commerce is the value of the property stolen. E.g., Jeffcoat v. U.S., 551 A.2d 1301 (D.C. 1988); State v. Pacheco, 636 P.2d 489 (Utah 1981); People v. Marques, 184 Colo. 262, 520 P.2d 113 (1974); State v. McClellan, 82 Vt. 361, 73 A. 993 (1909). See, also, 52A C.J.S. Larceny § 60(2) b. (1968). The courts in these cases reason that the instruments were valued by their rightful owners in the face amount of the checks, thus establishing value. The courts have generally held that the face amount of a stolen check is its value, notwithstanding a restrictive endorsement such as "For deposit only." People v. Marques, supra. The courts elsewhere have further held that the face amount of a check at the time of the theft is its value, notwithstanding a subsequent stop-payment order imposed by the bank at the victim's direction. Jeffcoat v. U.S., supra. We are aware of a minority view, found primarily in Texas cases such as Cooper v. State, 509 S.W.2d 865 (Tex.Crim.App.1974), which would require proof of the sufficiency of funds in the maker's account to determine the value of a stolen check, and we find these cases unpersuasive.
In the instant case, 14 checks were retrieved from a nearby roadway soon after the theft and were received in evidence at trial as proof of the theft. Nine checks in varying amounts totaling $135.05 were made payable to "Joe's" or "Joe's Off Sale." Of the five checks not made payable to the store, two checks left the payee blank, in the amount of $20.27 and $10, respectively. A third check, for $10, was made payable to "Cash." A fourth check, in the amount of $207.50, and a fifth check, a U.S. Treasury check in the amount of $256.29, had been endorsed by the payees without restriction. The face amounts of these five checks totaled $504.06.
At the conclusion of the State's case, Long moved to dismiss the case or, in the alternative, sought what was effectively a partial directed verdict that the crime charged should be reduced to theft under $500. The trial court did not dismiss the case, but indicated that it would submit the case to the jury to determine Long's guilt or innocence and, if guilty, whether the property taken was valued at between $200 and $500, or under $200. In ruling on Long's motion, the court concluded that the checks were not readily negotiable by Long and that, with the exception of the U.S. Treasury check, there was no proof or presumption that the checks were drawn on accounts with sufficient funds. We find the trial court's reasoning and rulings to be in error.
As noted above, the majority of courts have generally found that the face amount of a stolen check received in commerce, whether or not endorsed, is sufficient proof of its value, without regard to the sufficiency of funds. This principle has been applied to government checks, State v. Evans, 669 S.W.2d 708 (Tenn.Crim.App.1984) (face amount of unendorsed Internal Revenue Service refund check is presumptive evidence of its value), and State v. Easton, 69 Wash.2d 965, 970, 422 P.2d 7, 11 (1966) (face amount of stolen U.S. Treasury check is proof of its value, notwithstanding subsequent stop-payment order, because the instrument "is perhaps the most negotiable of negotiable instruments"), and has also been applied to checks made payable to "Cash," Bigbee v. State, 173 Ind.App. 462, 364 N.E.2d 149 (1977) (face amount of stolen check made payable to "Cash" is evidence of its value). In the instant case, five checks were in payable-to-bearer form: two were without payees; one was payable to "Cash"; and two, one of which was a U.S. Treasury check, had been endorsed without restriction. These five checks were highly negotiable and totaled over $500. The trial court's concerns regarding ease of negotiation and value under $500 are inconsistent with this analysis. As noted above, the total of all 14 checks was $639.11.
The trial court and Long rely on State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992), in arguing that the State failed to prove that the value of the stolen checks was over $500. *277 In Garza, the Nebraska Supreme Court held that price tags alone were insufficient proof of the value of the stolen articles, which consisted of two jackets and two dresses. Under Garza, the State must offer evidence of the value in the marketplace of the property taken. In the instant case, we have concluded that the value of the checks, which the evidence shows had been received in commerce, was the face amount of the checks. The testimony in this case by two Joe's Off Sale employees was that all of the checks had been received by Joe's Off Sale for merchandise or cash in amounts equal to the amount of the checks. There was further testimony that before checks were accepted at Joe's Off Sale, employees checked the bad-check list kept by the store. If Garza is viewed as applicable to this case, this evidence satisfactorily comports with Garza's requirement that there be proof beyond a reasonable doubt of current market conditions to establish value. In the instant case, the testimony supports the conclusion that the checks were accepted in the marketplace for value equal to their face amounts. The checks received in evidence which were retrieved after the theft totaled $639.11.
CONCLUSION
In view of the foregoing analysis and the evidence which supports a conclusion that the value of the stolen checks is over $500, we agree with the State that the trial court erred in effectively limiting the jury's consideration of value, in instructing the jury as described above, and in submitting a form of verdict which precluded a jury from making a specific finding of value and conveying that fact to the judge in its verdict. See, § 29-2026.01; State v. Weaver, 237 Neb. 185, 465 N.W.2d 470 (1991); State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989).
REVERSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204031/ | 888 N.E.2d 877 (2008)
HIGGINBOTHAM
v.
STATE.
No. 49A02-0712-CR-1042.
Court of Appeals of Indiana.
June 13, 2008.
NAJAM, J.
Disposition of case by unpublished memorandum decision. Affirmed.
DARDEN, J. Concurs.
BROWN, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266323/ | 5 Cal.Rptr.3d 466 (2003)
112 Cal.App.4th 791
CDM INVESTORS et al., Plaintiffs and Appellants,
v.
AMERICAN NATIONAL FIRE INSURANCE COMPANY, et al., Defendants and Respondents.
No. H024142.
Court of Appeal, Sixth District.
October 15, 2003.
Rehearing Denied November 6, 2003.
Review Granted February 4, 2004.
*467 Alan L. Martini, Sheuerman, Martini & Tabari, San Jose, for Plaintiffs/Appellants: CDM Investors et al.
Hancock Rothert & Bunshoft, Ray L. Wong, William J. Baron, San Francisco, Mary C. Boyle, for Defendants/Respondents: Great American Ins. Companies, American Nat. Fire Ins. Co., American Alliance Ins. Co.
Gibson, Dunn & Crutcher, Dean J. Kitchens, Los Angeles, for Defendants/Respondents: Travelers Cas. and Sur. Co.
Selman Breitman, Nicholas Banko, Linda Wendell Hsu, Esther Lee, Los Angeles, for Defendants/Respondents: Transamerica Ins. Co.
PREMO, Acting P.J.
In this insurance coverage action, plaintiffs CDM Investors and Ralph Borelli appeal from a judgment that resulted after the trial court sustained the demurrers of defendants American National Fire Insurance Company, American Alliance Insurance Company, and Great American Insurance Companies (collectively, Great American), Travelers Casualty & Surety Company (Travelers), and Transamerica Insurance Group (TIG). They principally contend that the trial court misinterpreted standard form comprehensive or commercial general liability and excess/umbrella insurance policies (CGL policies) as not providing coverage for "response costs" incurred pursuant to an administrative order *468 that charged plaintiffs with being suspected dischargers of pollutants causing damage to soil and groundwater. We affirm the judgment.
SCOPE OF REVIEW
We review a general demurrer under well-established principles. The appeal presents the question of law whether the complaint, liberally construed, contains facts sufficient to entitle plaintiff to any relief. We assume the truth of all material facts properly pleaded in the complaint unless they are contradicted by facts judicially noticed, but no such credit is given to pleaded contentions or legal conclusions. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 768-769, 234 Cal.Rptr. 653.)
INSURANCE CONTRACT INTERPRETATION
"`While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply.' [Citations.] `The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.' [Citation.] `Such intent is to be inferred, if possible, solely from the written provisions of the contract.' [Citation.] `If contractual language is clear and explicit, it governs.' [Citation.]" (Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857, 868, 77 Cal.Rptr.2d 107, 959 P.2d 265, hereafter Foster-Gardner.)
Ambiguity exists when an insurance policy provision "`is capable of two or more constructions, both of which are reasonable.' [Citations.] The fact that a term is not defined in the policies does not make it ambiguous. [Citations.] Nor does `[disagreement concerning the meaning of a phrase,' or `"the fact that a word or phrase isolated from its context is susceptible of more than one meaning."` [Citation.] `"[L]anguage in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case, and cannot be found to be ambiguous in the abstract."' [Citation.] `If an asserted ambiguity is not eliminated by the language and context of the policy, courts then invoke the principle that ambiguities are generally construed against the party who caused the uncertainty to exist (i.e., the insurer) in order to protect the insured's reasonable expectation of coverage.' [Citation.]" (Foster-Gardner, supra, 18 Cal.4th at p. 868, 77 Cal.Rptr.2d 107, 959 P.2d 265.)
But if "a term in an insurance' policy has been judicially construed, it is not ambiguous and the judicial construction of the term should be read into the policy unless the parties express a contrary intent." (Bartlome v. State Farm Fire & Casualty Co. (1989) 208 Cal.App.3d 1235, 1239, 256 Cal.Rptr. 719.)
FACTUAL BACKGROUND
Plaintiffs owned commercial real property that they leased to tenants. In 1989, the California Water Quality Control Board (Board) ordered them to test the property for pollutants after it concluded that they were suspected dischargers of pollutants causing damage to soil and groundwater in the vicinity of the property. Plaintiffs notified defendants of the Board's order and claimed insurance coverage for the costs to respond. Defendants denied coverage. Plaintiffs paid a consulting firm approximately $230,000 to comply with the order. In 1997, the Board closed its investigation without taking further action after essentially concluding that plaintiffs' property was not the source of the pollution. Plaintiffs filed this action in 2000. They basically allege that coverage *469 existed and seek reimbursement for the response costs.
LEGAL BACKGROUND
"[T]he standard comprehensive general liability insurance policy was developed in 1940. [Citations.] Over the years that have followed, it has periodically been revised, appearing in various versions. [Citations.] It had its name changed to the standard commercial general liability insurance policy in 1986." (Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 955, 103 Cal. Rptr.2d 672, 16 P.3d 94, hereafter Powerine.)
CGL policies generally indemnify the insured for all sums the insured shall be obligated to pay by reason of liability for property damage as defined. (FMC Corp. v. Plaisted & Companies (1998) 61 Cal. App.4th 1132, 1142, 72 Cal.Rptr.2d 467.) The Supreme Court has established as general propositions "that contamination of the environment is property damage and, in essence, that amounts the insured is required to pay to reimburse government agencies and to comply with government orders under statutes such as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (42 U.S.C. § 9601 et seq.) and similar statutes, once hazardous wastes have been released, are sums the insured is obligated to pay by reason of liability for property damage." (Ibid.)
In Foster-Gardner, at issue was the language in the pre-1986 CGL policy establishing the duty to defend. The policy in the case stated, "`the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, ... and may make such investigation and settlement of any claim or suit as it deems expedient(Foster-Gardner, supra, 18 Cal.4th at p. 863, 77 Cal. Rptr.2d 107, 959 P.2d 265, italics added.) Taking a "`literal' approach" to interpreting the meaning of the word "suit" in the duty-to-defend clause, the court concluded "suit" was not ambiguous and denoted only a court proceeding initiated by the filing of a complaint. (Id. at pp. 869, 871-872, 879, 887, 77 Cal.Rptr.2d 107, 959 P.2d 265.) Based on this policy language, the court held that the insurer's duty to defend the insured in a "suit" was limited to a civil action prosecuted in a court; it did not extend to an order issued by an administrative agency under an environmental statute. Under the policies in Foster-Gardner, an insurer was required to defend a suit, but had discretion to investigate and settle a claim. (Id. at p. 878, 77 Cal.Rptr.2d 107, 959 P.2d 265.) Noting the juxtaposition, the court explained, that an administrative proceeding under environmental statutes does not constitute a "suit," i.e., a civil action prosecuted in a court, but rather implicates a "claim." (Id. at pp. 878-888, 77 Cal.Rptr.2d 107, 959 P.2d 265.)
Foster-Gardner was intended to "create[] a `bright-line rule that, by clearly delineating the scope of risk, reduce[d] the need for future litigation,'" by avoiding the "`case-by-case determination whether each new and different letter presenting the claim of an administrative agency is to be deemed the "functional equivalent of a suit brought in a court of law."' [Citation.]" (Foster-Gardner, supra, 18 Cal.4th at pp. 887-888, 77 Cal. Rptr.2d 107, 959 P.2d 265.) Among the distinctions established by the Supreme Court in Foster-Gardner was the contrast between, on the one hand a "`suit,'" i.e., a civil action in a court commenced by a complaint, and on the other hand a "`claim,'" which can be initiated by an *470 administrative proceeding. (Id. at p. 879, 77 Cal.Rptr.2d 107, 959 P.2d 265.)
Powerine involved interpretation of the word "damages" in the indemnification provision of pre-1986 primary CGL policies issued to the plaintiff by the defendants. While Foster-Gardner addressed the scope of the duty to defend, Powerine considered the reach of the duty to indemnify.
Specifically limiting its analysis to the standard CGL policy (Powerine, supra, 24 Cal.4th at p. 950, 103 Cal.Rptr.2d 672, 16 P.3d 94), the court in Powerine held that "the insurer's duty to indemnify the insured for `all sums that the insured becomes legally obligated to pay as damages' under the standard [CGL] insurance policy is limited to money ordered by a court." (Id. at pp. 960, 964,103 Cal.Rptr.2d 672,16 P.3d 94.)
This holding flowed directly from the so-called Foster-Gardner "`syllogism'" (Powerine, supra, 24 Cal.4th at p. 960, 103 Cal.Rptr.2d 672, 16 P.3d 94), which states: "The duty to defend is broader than the duty to indemnify. The duty to defend is not broad enough to extend beyond a `suit,' i.e., a civil action prosecuted in a court, but rather is limited thereto. A fortiori, the duty to indemnify is not broad enough to extend beyond `damages,' i.e., money ordered by a court, but rather is limited thereto." (Id. at p. 961, 103 Cal.Rptr.2d 672,16 P.3d 94.)
The Powerine court further explained that the term "`damages'" in its "full context" and in its "`ordinary and popular sense'" is limited to "money ordered by a court" because the provision that imposes the duty to defend "links `damages' to a `suit,' i.e., a civil action prosecuted in a court" (Powerine, supra, 24 Cal.4th at pp. 961-962, 969, 103 Cal.Rptr.2d 672, 16 P.3d 94), and because "in both the legal and the broader culture, `damages' exist traditionally inside of court." (Id. at p. 969, 103 Cal.Rptr.2d 672, 16 P.3d 94.) That is, the court elucidated, "`[d]amages' do not constitute a redundancy to a `sum that the insured becomes legally obligated to pay,' but a limitation thereof." (Id. at p. 963, 103 Cal.Rptr.2d 672, 16 P.3d 94.) This limitation, the court reasoned, "commends itself to society generally as laying down a bright-line rule," having "a tendency to promote fairness and efficiency in the judicial sphere." (Id. at pp. 965-966, 103 Cal. Rptr.2d 672, 16 P.3d 94.)
In reaching its decision, the Powerine court distinguished between the word "damages," present in the CGL policy, and the term "expenses," ordered by an administrative agency, which latter word did not appear in the analyzed indemnity provision. The duty to indemnify for "damages" in the primary policies, the Supreme Court stated, did "not extend to any expenses required by an administrative agency pursuant to an environmental statute-specifically, here, proceedings conducted before the Regional Water Boards. ..." (Powerine, supra, 24 Cal.4th at p. 966, 103 Cal.Rptr.2d 672, 16 P.3d 94, italics added.) The reason, the court explained, is that "expenses required by an administrative agency pursuant to an environmental statute, whether for the cleanup of a contaminated site and the abatement of the contamination's effects or otherwise, do not constitute money ordered by a court." (Id. at pp. 966, 969-971, 974, 103 Cal.Rptr.2d 672, 16 P.3d 94, italics added.)
Read together, Foster-Gardner and Powerine stand for the proposition that the duty to defend a "suit" seeking "damages" under pre-1986 CGL policies is restricted to civil actions prosecuted in a court, initiated by the filing of a complaint, and does not include claims, which can denote proceedings conducted by administrative *471 agencies under environmental statutes. Likewise, the duty to indemnify for "`all sums that the insured becomes legally obligated to pay as damages'" (Powerine, supra, 24 Cal.4th at p. 961, 103 Cal. Rptr.2d 672, 16 P.3d 94, italics added) in the same standard primary policies is limited to money ordered by a court, and does not include expenses such as may be incurred in responding to administrative agency orders.
"In 1986, the standard insurance form was amended to define `suit' as `a civil proceeding in which damages because of "bodily injury," "property damage," "personal injury" or "advertising injury" to which this insurance applies are alleged. "Suit" includes an arbitration proceeding alleging such damages to which you must submit or submit with our consent.' [Citations.] Since then, this definition has been refined. Moreover, policies issued after 1985 generally include an absolute pollution exclusion." (Foster-Gardner, supra, 18 Cal.4th at p. 864, fn. 3, 77 Cal.Rptr.2d 107, 959 P.2d 265.)
DISCUSSION
The relevant insurance policies are attached to the third amended complaint and are standard form CGL policies.
Great American 1984 Primary Policy
This policy covers plaintiffs for "all sums which the insured shall become obligated to pay by reason of the liability imposed by law upon the insured, or assumed by the insured under any contract, for damages because of bodily injury, personal injury, advertising injury or property damage to which this policy applies arising out of an occurrence as defined herein."
Plaintiffs concede that there is no coverage under this policy because it is a pre-1986 policy governed by Foster-Gardner and Powerine. They argue, however, that they pleaded elements of waiver and estoppel so as to justify coverage. We disagree.
"[I]n the insurance context the terms `waiver' and `estoppel' are sometimes used interchangeably, even though estoppel requires proof of the insured's detrimental reliance." (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 33, 44 Cal.Rptr.2d 370, 900 P.2d 619.)
Plaintiffs allege that, after they notified Great American of the Board's order, Great American requested that they sign a non-waiver agreement, "represented that it would investigate the claim," "requested certain information," and "reserved its rights." They then conclude that Great American waived its right to deny coverage on the ground that the Board order did not constitute a suit because the reservation of rights was not based on that ground.[1] They elaborate in the complaint: "GREAT AMERICAN purposefully failed to raise the `suit' issue as a defense and, in fact, intended to forego and waive the `suit' defense by intentionally omitting the defense from its reservation of rights letter.... Failure to raise the suit defense was intentional by GREAT AMERICAN in furtherance of its internal policies, claims handling practices, and litigation tactics, and based upon its interpretation of its policy and the relevant legal authority, as well as legal positions it assumed in other litigation."
Case law is clear that waiver is the intentional relinquishment of a known right after knowledge of the facts. (Waller v. Truck his. Exchange, Inc., supra, 11 Cal.4th at p. 31, 44 Cal.Rptr.2d 370, 900 *472 P.2d 619.) "A holding that an insurer waives defenses not asserted in its initial denial of a duty to defend would be inconsistent with established waiver principles by erroneously implying an intent to relinquish contract rights where no such intent existed." (Id. at p. 33, 44 Cal.Rptr.2d 370, 900 P.2d 619.)
Plaintiffs' allegation fails to state a waiver claim because it alleges no more than an intentional omission, which is the equivalent of alleging an implied waiver.
Plaintiffs also allege that they detrimentally relied on Great American's failure and refusal to raise the suit defense. They elaborate in the complaint: "[P]laintiffs proceeded to incur substantial costs in defending against such administrative proceedings believing that GREAT AMERICAN would not contend that the administrative proceedings did not amount to a `suit' under the policies. Had GREAT AMERICAN raised the `suit' defense in its reservation of rights letter ..., plaintiffs could have simply refused to initially comply with the Board orders, which would have resulted in the filing of a lawsuit by the Water Board against the plaintiffs, thereby obviating the `suit' defense which GREAT AMERICAN now attempts to raise."
This allegation fails to make out detrimental reliance because it alleges no more than that plaintiffs assumed that Great American had waived the suit defense, which is, again, the equivalent of alleging an implied waiver.
Great American 1987 Primary and Umbrella Policies; TIG 1989 Primary Policy
The Great American 1987 primary policy covers plaintiffs for "sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage.'" It obligates Great American "to defend any `suit' seeking those damages." It defines "suit" as "a civil proceeding in which damages because of `bodily injury,' `property damage,' `personal injury' or `advertising injury' to which this insurance applies are alleged. `Suit' includes an arbitration proceeding alleging such damages...." And the policy excludes coverage for (1) injury or damage "arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants" at or from owned, rented, or occupied premises, and (2) "loss, cost, or expense arising out of any governmental direction or request that you test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants."
The TIG policy is identical.
The Great American 1987 umbrella policy has a pollution exclusion identical to the 1987 primary policy.
Plaintiffs urge that Foster-Gardner and Powerine do not govern these policies because they incorporate the 1986 modifications to the standard CGL policy. They emphasize that the 1986 form now defines "suit" as being a "civil proceeding" including arbitrations. They reason that this definition "expands" the pre-1986 definition of suit to encompass administrative proceedings. They reach this conclusion as follows.
First, the 1986 form dropped the language differentiating between suits and claims, which formed the basis for the Foster-Gardner conclusion that the insurers intended to defend only lawsuits and pay claims in their discretion. And second, the 1986 form adds the pollution exclusion, which specifically excludes some, but not all, losses arising out of governmental requests or direction to test for, monitor, or clean up pollution. As to this point, plaintiffs urge that there would be no need to exclude certain governmental *473 requests if governmental requests were not civil proceedings in the first instance. They bolster this point by citing AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 274 Cal.Rptr. 820, 799 P.2d 1253 (hereafter AIU), where the court held that response costs (the cost of reimbursing government agencies and complying with injunctions ordering a cleanup) constituted damages under CGL policies, damages being a hallmark of a civil proceeding.[2]
Plaintiffs' fallback position is that the definition of civil proceeding is at least ambiguous and can be reasonably construed to encompass administrative proceedings thereby making resolution of the question improper via demurrer.
We need not address this issue because, even if we agreed with plaintiffs, the pollution exclusion precludes coverage.
"The pollution exclusion at issue here is known as an `absolute pollution exclusion.'" (Legarra v. Federated Mutual Ins. Co. (1995) 35 Cal.App.4th 1472, 1480, 42 Cal.Rptr.2d 101.) Section I, coverage A, paragraph 2(f)(2) of the policy clearly states that the insurance does not apply to "Any loss, cost, or expense arising out of any governmental direction or request that you test for ... pollutants." There can be no question that the Board ordered plaintiffs to test for pollutants and plaintiffs seek reimbursement for the costs incurred to make the tests.
Plaintiffs make no convincing argument that the costs for which they seek reimbursement were not government-directed costs within the meaning of paragraph 2(f)(2). As alluded to earlier, plaintiffs urge that the pollution exclusion excludes some, but not all, losses arising out of governmental requests or direction. They apparently rely on the trial court's conclusion that the provision did not exclude "the cost of `responding to' or `assessing the effects of pollutants.'" They state that "a plain reading of the pollution exclusion does not include such activities as performing a site assessment and ascertaining potential sources of the contamination, including a determination of the relative risks and benefits of alternative responses, including doing nothing."
Plaintiffs are correct about what the exclusion does not say, but the point does not avail them. This follows because the language of the exclusion is non-specific and all-encompassing ("Any loss, cost, or expense arising out of any governmental direction or request").[3]
*474 Great American 1984 and 1985 Umbrella Policies
These Great American policies cover plaintiffs for "the ultimate net loss in excess of the underlying [coverage] which the insured shall become legally obligated to pay ... for damages because of property damage. They obligate Great American to "defend any suit ... seeking damages" with respect to any covered occurrence not covered by the underlying insurance "but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient." And they define "ultimate net loss" as "all sums which the insured shall become legally obligated to pay as damages arising from an occurrence to which this policy applies" and "all expenses incurred by the insured in the investigation, negotiation, settlement and defense of any such claim or suit seeking such damages."
Plaintiffs urge that Foster-Gardner and Powerine do not govern these policies because they indemnify for "ultimate net loss," which broadens the coverage beyond "damages." They point out that "ultimate net loss" includes all expenses incurred by the insured in the investigation and defense of claims or suits seeking damages. They reason that the implication of the ultimate-net-loss definition is twofold: "that under this policy, as compared with the policies at issue in the Powerine decision, it was specifically contemplated that there could be `claims' for `damages' (not merely lawsuits) and that the insurer would indemnify the insured for expenses incurred in connection with such claims, provided the claims sought damages potentially covered by the policy." (Original underscoring.) They conclude that "so long as the response costs ... amount to `damages' (compensation for harm suffered under AIU) and are not `prophylactic' these umbrella policies must provide coverage."
Great American poses that plaintiffs read the policies out of context. It points out the following: (1) the coverage clause indemnifies for damages, which, under Powerine, means a court-ordered loss ("pay ... ultimate net loss ... for damages"); and (2) the defense clause requires it to defend lawsuits but gives it the option to negotiate and settle claims or suits ("may make ... investigation, negotiation and settlement of any claim or suits"). (Italics in original.) It reasons that an interpretation requiring it to indemnify for response costs (claim for damages) would ignore the policies' distinction between suits (defense and indemnity obligations) and claims (option to settle). It urges that (1) the clause defining "ultimate net loss" cannot create coverage where none exists under the coverage clause, and (2) the ultimate-net-loss clause itself subordinates itself to the coverage and defense clauses ("ultimate net loss" is "all sums ... arising from an occurrence to which this policy applies" and "all expenses" incurred for "any such claim or suit seeking such damages"). It concedes that the term "expenses" as used in the ultimate-net-loss clause could be interpreted to allow *475 for indemnification of response cost claims. But it argues that this obligation exists only where the basic coverage conditions are met (judgment or insurer-approved settlement). It states: "Before [plaintiffs] could recover expenses for defense costs under the `ultimate net loss' clause, [they] would have to satisfy the policies' basic coverage requirements, including the requirement of liability imposed in court as `damages' or liability imposed under a settlement approved by Great American."
Plaintiffs counter that "it is reasonable to conclude that the insurer not only agrees to indemnify for expenses incurred in defense of claims seeking damages, but also to indemnify for the sums the insured becomes legally obligated to pay as `damages,' (interpreted in light of the fact that claims can seek damages under the definition of `ultimate net loss') whether or not the claim resolves in judgment or insurer approved settlement." Plaintiffs bolster this point by referring to the loss-payable clause, which provides for two ways in which an insured can make an indemnity claim under the policy, including one that does not require a judgment or insurer-approved settlement. This provision states: "The company's liability under this policy with respect to any occurrence shall apply only after the insured or underlying insurers' have paid or become obligated to pay the amount of the underlying limit or the retained limit as a result of such occurrence, [¶] The insured shall make claim for any loss under this policy within twelve (12) months after (1) the insured shall have paid ultimate net loss in excess of the underlying limit or retained limit with respect to any occurrence, or (2) the insured's obligation to pay such amounts shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company." (Italics added.)
We agree with Great American.
The coverage clause imposing the duty to indemnify is clear in its limitation to court-rendered damages. It states: "The company will pay ... the ultimate net loss ... which the insured shall become legally obligated to pay ... for damages." (Cf. Powerine, supra, 24 Cal.4th at p. 961,103 Cal.Rptr .2d 672, 16 P.3d 94 ["In its language, especially `damages,' the provision imposing the duty to indemnify is clear in its limitation to money ordered by a court"].) And the policy contains a duty to defend "suits," which links the term "damages" to a civil action. (Id. at pp. 961-962, 103 Cal.Rptr.2d 672, 16 P.3d 94.)
We disagree with plaintiffs that the phrase "ultimate net loss" in the coverage clause expands the definition of damages when the ultimate-net-loss definition clause is taken into consideration. The phrase in the coverage clause is used in reference to what amount the insurer will pay after the insurer becomes obligated to pay rather than as a trigger of the insurer's obligation to pay. In other words, the coverage clause reads that the insurer will pay ultimate net loss when that loss ripens into damages. It is unreasonable to interpret the clause to read that the insurer will pay an ultimate net loss when the insured incurs an expense that is defined as an ultimate net loss because such an interpretation ignores the (1) "for damages" qualifier in the coverage clause, and (2) implicit meaning of "ultimate" in "ultimate net loss," which suggests finality and, in context with the "for damages" qualifier, judgment-finality.
It is not at all incongruous for the policy via the use of "ultimate net loss" in the coverage clause and the ultimate-net-loss definition clause to contemplate indemnity for expenses while limiting such indemnity *476 to expenses included in a judgment or insurer-approved settlement. This concept was mentioned in passing in ALU as noted in Powerine. In AIU, "we held to the effect that the duty to indemnify may embrace all money ordered by a court, including `money that the insured must give under law as compensation to third parties' and also `money that the insured must itself expend in equity in order to provide relief of the same sort.' [Citation.] We did not hold that the duty extends to any money in addition to that ordered by a court-including any expenses required by an administrative agency pursuant to an environmental statute. Indeed, we did not even consider the issue." (Powerine, supra, 24 Cal.4th at p. 966, 103 Cal.Rptr.2d 672,16 P.3d 94.)
We decline to consider whether the coverage clause might be construed in the way plaintiffs urge when the loss-payable clause is taken into consideration. A loss payable provision is a condition of coverage, not a limitation thereof, and cannot be read to limit or expand the coverage obligation. (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2002) § 3:158, p. 3-2 (rev. # 1 2001) ["As a general rule, conditions neither confer nor exclude coverage"].)
In short, the coverage clause unambiguously provides that damages trigger indemnity and the ultimate-net-loss concept merely expands the amount of damages rather than the ripening of the indemnity obligation. Powerine's definition of damages therefore controls.
We do not ignore that plaintiffs' payment of the response costs in this case might have obviated the necessity of a lawsuit or insurer-approved settlement and plaintiffs concomitant ability to obtain insurance reimbursement. But "[i]n arriving at our conclusion, we decline to rewrite the provision imposing the duty to indemnify in order to remove its limitation to money ordered by a court. We will not do so for the insured itself, in order to shift to the insurer some or all of the potentially substantial costs that might be imposed on the insured as the outcome of a proceeding conducted before an administrative agency pursuant to an environmental statute. Neither will we do so for considerations of public policy, in order, perhaps, to promote the outcome itself through such a shifting of costs-for example, to advance the cleanup of a contaminated site and the abatement of the contamination's effects by calling in the insurer's resources in supplement to those of an insured that is prosperous or in place of those of an insured that is not. Our reason is that we do not rewrite any provision of any contract, including the standard policy underlying any individual policy, for any purpose. [Citation.] To do so with regard to the standard policy, with which we are here concerned, might have untoward effects generally on individual insurers and individual insureds and also on society itself. Through the standard policy, individual insurers made promises, and individual insureds paid premiums, against the risk of loss. To rewrite the provision imposing the duty to indemnify in order to remove its limitation to money ordered by a court might compel insurers to give more than they promised and might allow insureds to get more than they paid for, thereby denying their `general[ ] free[dom] to contract as they please[ ]' of any effect in the matter. [Citation.] It is conceivable that to rewrite the provision thus might result in providing society itself with benefits that might outweigh any costs that it might impose on individual insurers and individual insureds. It is conceivable. But unknown. Knowledge `depend[s] in large part on' what we are ill suited for, that is, the `amassing and analyzing *477 of complex and extensive empirical data.' [Citation.] Without such knowledge, we could not proceed." (Powerine, supra, 24 Cal.4th at pp. 967-968, 103 Cal. Rptr.2d 672, 16 P.3d 94.)
Travelers 1986 Umbrella Policy
The Travelers umbrella policy is similar to the Great American umbrella policies and covers plaintiffs for "the ultimate net loss in excess of the applicable underlying limit which the insured shall become legally obligated to pay as damages" and defines "ultimate net loss" as "the sum actually paid or payable in cash in the settlement or satisfaction of any claim or suit for which the insured is liable either by adjudication or settlement with the written consent of the company."
Our analysis of Great American's 1984 and 1985 umbrella policies applies here. The Powerine definition of damages precludes coverage for plaintiffs' response costs.
CDM'S THIRD-PARTY LAWSUIT
Shortly after the Board's order, plaintiff CDM sued its former tenants under CERCLA in federal court. The third amended complaint in this case alleges that (1) plaintiffs sued the tenants to apportion liability for the response costs, and (2) the tenants raised affirmative defenses seeking to apportion responsibility to plaintiffs. Plaintiffs conclude that the affirmative defenses are the functional equivalent of a counterclaim and that defendants had a duty to defend them as to those affirmative defenses. From this, plaintiffs bootstrap coverage for the response costs by characterizing the affirmative defenses as a suit seeking damages.[4] Plaintiffs detail their theory as follows.
"[U]nder CERCLA, the affirmative defenses raised by the tenants, including that [CDM] was negligently responsible for the contamination gave the federal court jurisdiction to apportion response costs under ... CERCLA among the defendants and [CDM] and to specifically find [CDM] jointly and severally liable for the response costs to the tenants. [Citation.] Under CERCLA, and the federal court's interpretation of its jurisdiction ..., the tenants did not need to file a counterclaim for apportionment in order to give the court the requisite jurisdiction to actually assess liability for response costs to the plaintiff. Apportionment of liability among all potentially responsible parties, including plaintiff, and apportionment of contribution rights among the parties is per se within the jurisdiction of the court under [CERCLA]. Thus, the `tenant action' filed in federal court, which was tendered to [defendants] for defense and indemnity, raised the potentiality of a judgment for declaratory relief and damages imposing joint and several liability for response costs and contribution to CDM, and enforceable against CDM by the tenants."
We disagree with plaintiffs' analysis. In 3250 Wilshire Boulevard Bldg. v. Employers Ins. of Wausau (1995) 39 Cal.App.4th 1277, 46 Cal.Rptr.2d 399 (hereafter Wilshire), the plaintiff sued a tenant for breaches of the lease, including failure to pay rent. The defendant counterclaimed for damages for breach of the lease, and *478 his answer contained similar allegations as defenses. The plaintiff tendered the defense of the counterclaim to its business liability insurer, which accepted the tender and eventually settled the counterclaim by paying the defendant $50,000. The plaintiff then demanded that the insurer provide it with a defense to the defendant's defenses. The insurer refused. The plaintiff then prosecuted its claims against the defendant to a successful conclusion, incurring legal fees in the process. The plaintiff then sued the insurer, alleging that its refusal to defend against the defendant's defenses was a breach of the duty to defend ("`duty to defend any "suit" seeking those damages'"). (Id. at p. 1280, 46 Cal.Rptr .2d 399.) The insurer demurred, contending that the liability policy did not obligate it to furnish legal services for the plaintiffs prosecution of its action against the defendant because the defendant's defenses had no potential to result in a judgment holding the plaintiff liable to pay damages to the defendant. The trial court agreed, sustained the demurrer without leave to amend, and dismissed the plaintiffs action. On appeal, the court affirmed. It reasoned that, under the policy, the insurer had the duty to defend any suit seeking damages because of bodily injury, property damage, personal injury or advertising injury. "This provision did not obligate [the insurer] to prosecute plaintiffs claims against [the defendant], because neither the prosecution of plaintiffs prima facie case nor the defeat of [the defendant's] defenses thereto could be considered the defense of a suit seeking damages." (Ibid.)
We glean from Wilshire the principle that, under ordinary duty-to-defend language, an insurer has no duty to defend an affirmative defense asserted against the insured in an insured-initiated action.
The Supreme Court has modified this principle in Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 126 Cal.Rptr.2d 908, 57 P.3d 372 (hereafter TIG Specialty). There, the plaintiff sued the defendant for nonpayment of security services. The defendant answered and asserted as a setoff the affirmative defense that the plaintiff was responsible for fire damage on the defendant's property. The plaintiff tendered the defense of the setoff claim to its insurer, the insurer refused the tender, and the plaintiff sued the insurer. The trial court sustained the insurer's demurrer after concluding that an insurer does not have a duty to defend against affirmative defenses raised in response to an insured's complaint against another party. The Supreme Court agreed that "a defendant may not obtain an award of affirmative relief against a plaintiff by way of [Code of Civil Procedure] section 431.70 [affirmative relief may not be claimed in an answer]; rather, the defendant may only assert the setoff defensively to defeat the plaintiffs claim in whole or in part." (Id. at p. 198, 126 Cal.Rptr.2d 908, 57 P.3d 372.) But it nevertheless affirmed the Court of Appeal judgment reversing the trial court. It explained as follows.
"This interpretation of the Code of Civil Procedure does not, however, resolve the question whether a setoff claim constitutes a suit seeking damages for purposes of a comprehensive general liability insurance policy. Though a defendant may not obtain affirmative relief by way of a setoff claim, the defendant does reduce the claim to a monetary value by successfully asserting it as payment for the liability the plaintiff is alleging in its complaint. And this point brings us back to the heart of [plaintiffs] argument. If not for the [security services] debt [the defendant] owed to [plaintiff], [the defendant's] fire damages claim against [plaintiff], if asserted in a *479 court of law, would unquestionably have been a suit for damages. But because of its debt to [plaintiff], [the defendant] could allege the claim as a setoff rather than by way of complaint. For accounting purposes, however, the effect was no less a monetary recovery than would be a damages award. In these circumstances, [plaintiff] argues we should treat the setoff claim as a suit for damages. [¶] We decline to decide this question in a case like this one where the precise terms of the insurance policy are not before us. Nevertheless, we affirm the judgment of the Court of Appeal. [Plaintiffs] complaint adequately stated a prima facie right to relief, and therefore the Court of Appeal was correct to reverse the trial court's order sustaining the demurrer. In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language. [Citation.] [Plaintiff] has chosen to proceed in this manner, and though the complaint could have been clearer, it satisfactorily alleged (1) that the insurance policy obligated TIG Insurance to defend and indemnify [plaintiff] against suits seeking damages, and (2) that under the terms of the policy, [the defendant's] setoff claim fell within the scope of that contractual obligation. Whether [plaintiff] can prove these allegations (that is, whether its interpretation of the applicable contractual language is correct in light of what we have said here) remains to be seen, but the allegations are sufficient to establish a prima facie right to relief. TIG Insurance may move for judgment on the pleadings or summary judgment, raising the same arguments it raised in its demurrer, and in support of its motion it may provide the court with a copy of the insurance policy in question." (TIG Specialty, supra, 29 Cal.4th at pp. 198-199, 126 Cal.Rptr.2d 908, 57 P.3d 372.)
We glean from TIG Specialty that a setoff affirmative defense could constitute a suit seeking damages for purposes of a CGL policy if the affirmative defense (1) would unquestionably have been a suit for damages if asserted in a court of law, and (2) fell within the scope of the contractual obligation. Plaintiffs' allegations, however, fail to make out a cause of action because they fail to satisfy the above first prong.
Here, plaintiffs' tenants had no independent suit against CDM that they sought to reduce to a monetary value by asserting it as a setoff payment for the liability that CDM was alleging against them. They had no claim whatsoever and could not have sued CDM for anything. Regardless of plaintiffs' characterization of a CERCLA proceeding to apportion liability, the reality of CDM's CERCLA case is that CDM sued the tenants for indemnity as to an obligation imposed upon it by the Board and the tenants countered with an indemnity claim against CDM. In this posture, the tenants' indemnity claim was purely defensive-it sought and functioned only to reimpose upon CDM what CDM was already legally obligated for. It therefore cannot be characterized as the functional equivalent of an allegation seeking affirmative relief that could have been asserted as a suit for damages, which, in turn, might constitute a suit for damages within the meaning of the usual CGL policy duty-to-defend provision.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, and WUNDERLICH, JJ.
NOTES
[1] It is unclear from the third amended complaint whether Great American specified any ground for its denial of coverage under the 1984 primary policy.
[2] AIU distinguished between response costs where there has already been contamination and "prophylactic" costs to the extent that the latter would not constitute covered damages because such costs would not result from property damage. "We do agree that prophylactic costs-incurred to pay for measures taken in advance of any release of hazardous waste-are not incurred `because of property damage.' [Citations.] Until such damage has occurred, whether on the waste site itself or elsewhere, there can be no coverage under CGL policies. Beyond this limited circumstance, however, and because the agencies in this suit allege that the waste sites themselves and the water on and surrounding the sites have already been contaminated by hazardous waste, we conclude that the reimbursement and the costs of injunctive relief sought here at least in part constitute `damages because of property damage.'" (AIU, supra, 51 Cal.3d at p. 843, 274 Cal.Rptr. 820, 799 P.2d 1253.)
[3] Plaintiffs mention in passing that the pollution-exclusion argument does not apply to TIG's policy because TIG did not raise the argument in its brief (nor did TIG join in or adopt by reference the relevant part of Great Americans brief (Cal. Rules of Court, rule 13(a)(5))). We disagree. Our review is de novo, the TIG and Great American policies are identical, the argument was made, and plaintiffs responded. No purpose would be served by reversing as to TIG (if such were justified) only to compel TIG to move below for summary judgment. In any event, we are not precluded from addressing points even when the points are completely neglected by the parties. "The general rule is `that ordinarily where a party has neglected to present a point in his brief he may be precluded from insisting that the court consider the point when deciding the case.... However, we know of no hard-and-fast rule which prohibits the court from considering and deciding points of law which may not have been urged and argued in the briefs originally filed if it appears to the court that an important legal principle is necessarily involved in the newly discovered point and that a proper disposition of the case requires a discussion and decision of that point.' [Citations.]" (Kurlan v. Columbia Broadcasting System (1953) 40 Cal.2d 799, 806, 256 P.2d 962.)
[4] Under this theory, the Great American 1987 primary and umbrella policies and the TIG 1989 primary policy would not be implicated given that those policies' pollution exclusion applies. The Travelers 1986 umbrella policy does not contain a duty to defend but is implicated under plaintiffs' theory to the extent that it indemnifies for damages. The Great American 1984 Primary Policy contains a duty to "defend any suit...." And, as recounted above, the Great American 1984 and 1985 umbrella policies contain a duty to "defend any suit ... seeking damages." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2577285/ | 285 F.Supp.2d 1121 (2003)
George BREWTON, et al., Plaintiffs,
v.
CITY OF HARVEY and Nicholas Graves, Defendants.
No. 02 C 6289.
United States District Court, N.D. Illinois, Eastern Division.
September 30, 2003.
*1122 *1123 George S. Robot, Mary Stowell, Linda Debra Friedman, Stonell & Friedman, Ltd., Chicago, IL, for Plaintiffs.
Lawrence Jay Weiner, Paul J. Ciastko, Darcee Corinne Young, Scariano, Himes and Petrarca, Paulette A. Petretti, Scariano, Ellch, Himes & Petrarca Chtd., Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
BUCKLO, District Judge.
George Brewton and eighteen other plaintiffs filed a three-count complaint against the City of Harvey ("City") and its mayor, Nicholas Graves, alleging that plaintiffs had been terminated from their positions as city employees based on their *1124 race and their support for former Harvey mayor David Johnson. Count I, alleging unlawful termination based on race, was brought under 42 U.S.C. §§ 1981, 1983. Count II, alleging unlawful termination for exercising their first amendment right to support the former mayor, was brought under 42 U.S.C. § 1983. Count III, alleging unlawful racial discrimination, was brought against the City only, and was brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Defendants' motion to dismiss argues that plaintiffs' claims are barred by res judicata or collateral estoppel based on a previous class action against the City, and that plaintiffs' claims are time-barred. In the alternative, defendants request that I sever the plaintiffs' claims pursuant to Fed. R.Civ.P. 21, or require separate trials pursuant to Fed.R.Civ.P. 42(b). I deny the motion to dismiss as to Counts I and II, grant the motion to dismiss as to Count III, and grant the request to sever.
I. Motion to Dismiss
On a motion to dismiss, I take all allegations in the complaint as true. Wilczynski v. Lumbermens Mut. Cas. Co., 93 F.3d 397, 401 (7th Cir.1996). The facts as alleged by plaintiffs are as follows. Plaintiffs, all of whom are African-American, were city employees and supporters of longtime Harvey mayor David Johnson. Mr. Johnson is also African-American. On April 4, 1995, Mayor Johnson lost a reelection bid to Harvey Chief of Police Nicholas Graves, who is white. Within days of taking office, Mayor Graves terminated most of the plaintiffs from their positions under the guise of budget cuts. Other plaintiffs were given the ultimatum to resign or face termination. Some of these plaintiffs resigned and others were terminated. In addition, Mayor Graves reinstated city employees who had been terminated under Mayor Johnson's tenure, and rescinded disciplinary actions pending against his political supporters. Further, Mayor Graves ignored city ordinances requiring city employees to reside in Harvey, reinstating political supporters who had been terminated or suspended for residency violations and hiring others from outside Harvey. In 1995, a class action was filed against Mayor Graves and the City of Harvey (as well as other defendants) alleging wrongful termination of city employees based on race and their support of former Mayor Johnson. Barner v. City of Harvey, No. 95 C 3316 (N.D. Ill. filed June 5, 1995) (Guzman, J.) ("Barner action"). Plaintiffs here were putative class members. The case went to a jury and a verdict was returned in defendants' favor. Barner (Nov. 21, 2001) (order entering judgment on the verdict).[1]
A. Preclusion
Defendants argue that plaintiffs' claims are barred by res judicata and/or collateral estoppel. Defendants argue that the jury verdict in the Barner action decided the same issue between the same parties as the present case. While the Barner action was a class action involving alleged racial and political affiliation discrimination following the 1995 election and in which plaintiffs and defendants were parties, that action is not preclusive of plaintiffs' complaint. The Supreme Court has held that a judgment in a class action determining that an employer did not engage in a general pattern or practice of discrimination against a certified class of employees does not preclude a class member from maintaining a subsequent civil action alleging an individual claim of discrimination. Cooper v. Fed. Reserve Bank *1125 of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). The verdict in the Barner action was limited to "a finding of no pattern or practice of discrimination." Barner (May 13, 2002) (order clarifying meaning of judgment). Judge Guzman expressly stated that the verdict constitutes "a rejection of the claim of class wide discrimination but does not extinguish the individual claims of discrimination asserted either by the named parties or the unnamed class members." Id (citing Cooper). I agree with Judge Guzman's reading of Cooper and his assessment of the preclusive effect of the Barner action verdict. Plaintiffs' claims here are not barred by res judicata.
With respect to collateral estoppel, the issue of whether defendants engaged in a pattern or practice of discrimination was decided in the Barner action, and if plaintiffs sought to relitigate that issue here, those claims would be precluded. Cooper, 467 U.S. at 880, 104 S.Ct. 2794. Plaintiffs say, however, that they are not pursuing pattern or practice claims here. (Pl.'s Resp. to Def.'s Mot. to Dismiss at 11). Defendants also argue that Judge Guzman's finding that "defendants have established a legitimate nondiscriminatory reason for the actions" with respect to disparate impact claims in the Barner action are preclusive on the issue of pretext. Barner (May 22, 2002) (order entering judgment for defendants as to disparate impact claim). That finding, however, was limited to the practice of terminating employees based solely on job title (as opposed to qualifications of employee), which plaintiffs had alleged resulted in a disparate impact on African-American employees. Id. That defendants had a legitimate nondiscriminatory reason for engaging in that practice, while potentially relevant, see Cooper, 467 U.S. at 880, 104 S.Ct. 2794, is not necessarily dispositive as to whether defendants had a legitimate nondiscriminatory reason for terminating the individual plaintiffs here. As dismissal is proper "only where it appears beyond a doubt that the plaintiffs can prove no set of facts in support of their claims that would entitle them to relief," Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429-30 (7th Cir.1996), dismissal on the collateral estoppel grounds asserted by defendants is denied.
B. Statutes of Limitations
Defendants argue that all of plaintiffs' claims are time-barred. Count I of plaintiffs' complaint alleges racial discrimination in violation of sections 1981 and 1983. The statutes of limitations for claims under those sections are borrowed from the forum state's statute of limitations for personal injury actions. Jones v. R.R. Donnelley & Sons Co., 305 F.3d 717, 728 (7th Cir.2002) (section 1981); Mitchell v. Donchin, 286 F.3d 447, 450 n. 1 (7th Cir.2002) (section 1983). Thus, in Illinois, the statute of limitations for claims under those sections is two years. Jones, 305 F.3d at 728; Mitchell, 286 F.3d at 450 n. 1. Count II alleges discrimination on the basis of political affiliation in violation of § 1983. This count, therefore, also has a two-year statute of limitations. Count III alleges racial discrimination in violation of Title VII. Filing a charge with the EEOC is a prerequisite to bringing suit under Title VII. Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir.1994) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)). An EEOC charge must be filed, at the latest, within 300 days after the alleged unlawful employment practice occurred, 42 U.S.C. § 2000e-5(e)(1), and a civil complaint must be brought within 90 days of receiving a right to sue letter, 42 U.S.C. § 2000e-5(f)(1).
1. Tolling
Plaintiffs argue that their complaint is timely because the statute of limitations *1126 was tolled during the pendency of the class action. The Supreme Court has held that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class." Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983) (quoting American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974)). The Court noted that such a rule protects the policies behind the class action procedure efficiency and economy of litigation because the opposite rule would encourage each class member to file his own individual suit to preserve his claims should the class action fail to proceed. Id. at 349, 103 S.Ct. 2392 (citing American Pipe, 414 U.S. at 553, 94 S.Ct. 756). Further, the Court noted that this rule would not injure the policies behind statutes of limitations putting defendants on notice of adverse claims and preventing plaintiffs from sleeping on their rights because such ends are met when a class action is filed. Id. at 352-53, 103 S.Ct. 2392 (citing American Pipe, 414 U.S. at 555, 561, 94 S.Ct. 756).
Crown, Cork & Seal and American Pipe both involved plaintiffs who had been putative members of a proposed class, certification of which was ultimately denied. While the Court in Crown, Cork & Seal held that the statute of limitations remained tolled "until class certification is denied," 462 U.S. at 354, 103 S.Ct. 2392, the tolling rule is not limited to situations in which class certification is ultimately denied. Realmonte v. Reeves, 169 F.3d 1280, 1284 (10th Cir.1999) ("[T]here are a number of cases in which the tolling rule of American Pipe has been applied when a class action has been certified."); Tosti v. City of Los Angeles, 754 F.2d 1485, 1488 (9th Cir.1985) ("Although the facts in both Crown, Cork & Seal and American Pipe involved decertification of the underlying class action, whereas in this case certification was granted, the Supreme Court has made clear that such a distinction is not controlling."). Here, a class was certified and trial proceeded on "pattern or practice" discrimination claims against the defendants. Pattern or practice class actions typically proceed in two phases. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In the first (liability) phase, the issue of whether an employer has engaged in a forbidden pattern or practice of discrimination is determined. In the second (remedial) phase, should a forbidden pattern or practice be found, individual relief is determined.
Here, a verdict was returned in defendants' favor after the liability phase. Although a class was certified and defendants successfully defeated the class pattern or practice claims, the limitations periods for class members' individual claims of discrimination were tolled until the final adverse determination of the class claims. Edwards v. Boeing Vertol Co., 717 F.2d 761, 766 (3d Cir.1983) vacated and remanded for further consideration in light of Cooper by 468 U.S. 1201, 104 S.Ct. 3566, 82 L.Ed.2d 867 (1984), reinstated by 750 F.2d 13 (3d Cir.1984). Up until that point, class members were entitled to rely on named plaintiffs to pursue litigation on their behalf. Not permitting tolling of the statute of limitations on individual claims during the liability phase would frustrate the purposes of the class action device for the same reasons discussed in Crown, Cork & Seal and American Pipe. If class members' claims were not tolled, each class member would be forced either to intervene in the class action or file individual protective suits to prevent the running of the statute. Further, as in Crown, Cork & Seal and American Pipe, the purposes of statutes of limitation are not frustrated by permitting tolling during the pendency of the liability phase of a pattern and *1127 practice class action. Defendants here were clearly on notice of the adverse claims against them, and plaintiffs cannot be accused of sleeping on their rights when a class action was proceeding on their behalf. The limitations periods for plaintiffs' individual discrimination claims were tolled during the pendency of the class action.[2]
2. EEOC Filing Requirements
Even though the statutes of limitations on the claims in the present suit had not run, plaintiffs still must comply with Title VII's EEOC filing requirement, at least with respect to their Title VII count. Plaintiffs here do not allege that any of them filed a complaint with the EEOC. Instead, they invoke the single-filing rule to piggyback on the timely-filed EEOC charges of the named plaintiffs in the Barner action. The single-filing rule excuses, in certain circumstances, plaintiffs in a Title VII case from the procedural requirements of filing a charge with the EEOC and receiving a right to sue letter before commencing a civil suit. Zuckerstein v. Argonne Nat'l Lab., 663 F.Supp. 569, 572 (N.D.Ill.1987) (Moran, J.). There is little discussion in the Seventh Circuit of the single-filing rule, while other circuits have explored the issue more fully. See id. at 573 ("[T]he clear trend in the other circuits is to recognize the single-filing rule, at least under appropriate circumstances."). It is clear that as class members in the Barner action, plaintiffs were entitled to rely on the named plaintiffs' timely filing of EEOC charges, as each member of a class action is not required to file individual EEOC complaints once one member of the class has done so. Romasanta v. United Airlines, Inc., 537 F.2d 915, 918 (7th Cir.1976). The issue here is whether plaintiffs in this action can continue to piggyback on the timely-filed EEOC charges of the named plaintiffs in the Barner action.
Plaintiffs cite only one case in which a plaintiff who had not filed a timely EEOC charge was able to apply the single filing rule and piggyback on to the timely filed EEOC charge of a plaintiff in a completely different lawsuit. Calloway v. Partners National Health Plans, 986 F.2d 446 (11th Cir.1993). That case does not stand for the general proposition that a plaintiff who does not file an EEOC charge can piggyback on the timely-filed EEOC charge of a plaintiff in a separate suit, even when the suits arise out of similar discriminatory treatment in the same time frame.[3] The *1128 Seventh Circuit has never applied the single filing rule to allow piggybacking onto a timely-filed EEOC charge in a separate law suit, and Judge Moran in Zuckerstein expressly held that "at least one complying plaintiff must be a party to the suit." 663 F.Supp. at 574 (emphasis added). Because none of the plaintiffs party to this suit have timely filed a charge with the EEOC, their Title VII claim (Count III) is dismissed.
II. Request for Severance
Defendants argue that even if plaintiffs' claims are not precluded or time-barred, they are misjoined and should be severed pursuant to Rule 21. Parties may join in one action as plaintiffs if they seek relief with respect to the same transaction or occurrence (or series of transactions or occurrences) and if any question of law or fact common to all the plaintiffs will arise in the action. Fed.R.Civ.P. 20(a). While all nineteen plaintiffs seek relief for alleged discrimination relating to personnel cuts subsequent to the 1995 mayoral election, and there may be some overlap of legal and factual issues among plaintiffs, I think it best to sever the cases. My refusal to dismiss Counts I and II is premised entirely on the fact that while the Barner action resolved claims of class discrimination, claims of individual discrimination survived (and the relevant statutes of limitation were tolled). To allow the plaintiffs to join in one action here would blur the distinction that is crucial to allowing their individual cases to proceed in the first place. Plaintiffs' cases are to proceed separately. See Barner v. Harvey, No. 95 C 3316, 2003 WL 1720027, (N.D.Ill. Mar. 31, 2003) (Guzman, J.) (granting motion to sever the individual claims of the nine named plaintiffs in the Barner action following verdict for defendants on the pattern or practice class claims).
III. Conclusion
Because plaintiffs' claims here are not precluded or time-barred, defendants motion to dismiss is DENIED as to Counts I and II. However, because plaintiffs failed to comply with Title VII's EEOC filing requirements, defendants motion to dismiss is GRANTED as to Count III. Further, defendants' request to sever plaintiffs' claims pursuant to Rule 21 is GRANTED.
NOTES
[1] I may properly consider public court documents in deciding a motion to dismiss without converting the motion to one for summary judgment. Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir.1994).
[2] In addition to the Third Circuit's opinion in Edwards, at least one treatise indicates that the tolling rule of Crown, Cork & Seal applies to the Cooper situation in which individual discrimination claims survive an adverse class ruling on pattern or practice. Charles A. Sullivan et al., Employment Discrimination § 32.4 (2d ed. 1988) ("While Cooper demonstrates that a class action may narrow individual rights, it is also possible for the mere existence of a class action to expand such rights because the individual plaintiff may rely on a pending class action to toll the applicable limitations period. The Supreme Court recognized this in Crown, Cork and Seal Co. v. Parker.").
[3] In Calloway, the plaintiff who had not filed an EEOC charge filed his own suit only after he had unsuccessfully attempted to intervene in the lawsuit of a plaintiff who had timely filed an EEOC charge. The Eleventh Circuit had previously extended the single filing rule to apply to plaintiffs in multi-plaintiff nonclass action lawsuits in which at least one co-plaintiff had filed a timely EEOC charge. Thus, the plaintiff in Calloway would have received the benefit of the single filing rule had he successfully been able to intervene. Not wanting to distinguish between a plaintiff who successfully intervenes and one who is unsuccessful, the court held that "a plaintiff, such as Calloway, who unsuccessfully moves to intervene in the lawsuit of a plaintiff who has filed an EEOC charge may invoke the single filing rule." 986 F.2d at 450. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337637/ | 212 Ga. 460 (1956)
93 S.E.2d 673
SWANN
v.
MORRIS.
19368.
Supreme Court of Georgia.
Argued June 13, 1956.
Decided July 9, 1956.
Claude Hambrick, for plaintiff in error.
Wm. F. Buchanan, Newell Edenfield, Lamar W. Sizemore, contra.
*461 ALMAND, Justice.
Fulton County Federal Savings & Loan Association sought by a petition for interpleader to require James P. Swann, temporary administrator of the estate of Mrs. E. C. Wallace, and Gussie Lou Morris, to interplead and set up their respective claims to a savings account in a stated amount held by the petitioner in the name of Mrs. E. C. Wallace, deceased. The petition set forth the respective claims of the parties, and prayed that petitioner be allowed to pay the amount held by it into the registry of the court and be discharged. On the call of the case, the defendant Gussie Lou Morris made an oral motion to dismiss the petition upon the ground that it did not state a cause of action for the equitable relief prayed, which motion the court refused. After hearing evidence, the court entered an order requiring the defendants to interplead and set up their respective claims to the savings account. To this judgment Miss Morris excepted, and that judgment was affirmed by this court, it being held that the court did not err in denying the motion to dismiss and ordering the defendants to interplead. Morris v. Fulton County Federal Savings &c. Assn., 211 Ga. 900 (89 S. E. 2d 489). Thereafter the defendant Morris filed an amendment to her response, and to the amended response the defendant Swann, administrator of the estate of Mrs. Wallace, filed his demurrer, on the ground that the amended response was not sufficient as a matter of law to show that a gift of the fund in dispute had been made to Miss Morris. This demurrer being overruled, the defendant administrator by a bill of exceptions seeks a review of that judgment.
1. Counsel for Miss Morris contend that the ruling made when the case was here before became the law of the case, and that the sufficiency of her answer is res adjudicata. When the case was here before, we ruled only that the petition for interpleader was sufficient as against the general demurrer of one claimant, and such ruling did not establish the sufficiency or superiority of either claimant so as to become the law of the case. Cannon v. Williams, 194 Ga. 808 (1) (22 S. E. 2d 838). The question now before us is whether or not the amended answer of the claimant Miss Morris is sufficient to show a gift causa mortis.
2. The amended answer alleges that the claimant Miss Morris was a sister of Mrs. Wallace, who died on November 20, 1954; *462 that on the afternoon of November 19, 1954, Mrs. Wallace, while lying in bed in her home, where she had for some time been unable to talk or write, motioned to Miss Morris to hand her her pocketbook, which Miss Morris did; Mrs. Wallace then took out of her pocketbook a deposit book representing a savings account in the Fulton County Federal Savings & Loan Association in the sum of $6,468.90, and put the book back in a paper jacket and handed it to Miss Morris and put it in Miss Morris' hand and then closed Miss Morris' hand on the book; that Miss Morris then asked Mrs. Wallace if she intended giving her the money in this savings account, and Mrs. Wallace nodded her head; that this occurred in the presence of their brother. Thereafter, Miss Morris presented a letter to an officer of the plaintiff savings association, showing such officer the savings bank share account book issued to Mrs. Wallace, and tendered this book to the officer and demanded payment of the sum stated therein, which demand was refused.
The claimant administrator contends that Mrs. Wallace being physically unable to speak or write, the allegations as to the circumstances under which the alleged gift was made are insufficient to show an intention on the part of Mrs. Wallace to make a gift of the savings account book.
"All kinds of personal property which are capable of manual delivery and of which the title either legal or equitable can be transferred by delivery may be the subject matter of a valid gift; accordingly, as to promissory notes, bills of exchange, checks, bonds, and other like choses in action, the equitable title to which may be transferred in the manner indicated, the gift may be sustained even though the instruments are delivered without indorsement or assignment." Underwood v. Underwood, 43 Ga. App. 643 (3) (159 S. E. 725). In that case it was held that a participation certificate issued by a bank and entitling the holder to a proportionate part of the proceeds of described mortgages and notes held by the bank for the benefit of the holders of such certificates may be the subject matter of a lawful gift, although under the terms of the instrument the bank bound itself to make payment only to the registered holder thereof. In Wade v. Edwards, 23 Ga. App. 677 (99 S. E. 160), it was held that a deposit book issued by a savings bank, where delivered with appropriate *463 words of gift by the depositor, with intention to give to the donee the deposits entered in the book, was sufficient to constitute a valid gift of the deposit without assignment in writing, and that whether such gift was made was a question of fact for the jury. See also Jackson v. Jackson, 206 Ga. 470 (57 S. E. 2d 602).
Intent is a state of mind, and can be determined by what one does as well as by what one says. As well stated in Hagerty v. Hagerty, 186 Iowa 1329, 172 N. W. 259 (4), "`Intent' is an act or emotion of the mind, seldom, if ever, capable of direct or positive proof, but is arrived at by such just and reasonable deductions from the acts and facts proven as the guarded judgment of a reasonably prudent and cautious man would ordinarily draw therefrom." Actions sometimes speak louder than words. A facial grimace, or a gesture of the hands may convey one's thoughts with greater emphasis than spoken or written words. In Warehime v. Graf, 83 Md. 98 (34 Atl. 364), it was held that at an auction a wink of the eye or a nod of the head may constitute a bid. The amended response in the instant case alleges that Mrs. Wallace was unable to talk or write at the time the alleged gift was made, but from her acts and motions she had Miss Morris hand her her pocketbook, wherein she had the savings and share account book issued by the savings and loan association; that she pointed to the balance indicated in the savings book and handed the bag to Miss Morris, closing Miss Morris' hand on the book, and when asked if she was giving this account to Miss Morris, she nodded in the affirmative. Whether or not these acts on the part of Mrs. Wallace were sufficient to show an intention on her part to give the savings book to Miss Morris, and whether such acts were sufficient to show delivery within the meaning of Code §§ 48-101, 48-201, are questions for the jury. In our opinion, the response of the claimant Morris was not subject to the general demurrers of the defendant administrator.
3. The defendant administrator contends that, by virtue of Code (Ann. Supp.) §§ 16-433 and 16-439, the claimant Morris has no right to collect this account. Section 16-433 provides as to when, upon the death of a member of a building and loan association, an association may pay the redemption value of the shares. Section 16-439, after providing that the original record *464 of savings accounts is the record on the books of the association, and providing for the issuance of a duplicate book or certificate in the event of loss or destruction of the original, provides: "The only way an effective transfer or pledge may be accomplished is by transfer on the books of the association in the case of transfer or written notice of a pledge entered on the books of the association and acknowledged in writing in the case of a pledge." It is insisted that the claimant Morris failed to allege a transfer to herself of this account as provided by this provision of Code § 16-439. These two sections deal solely with dealings between a member or his legal representative and the association. The section dealing with a transfer or pledge is for the protection of the association and for its benefit, and does not affect the right of a member to make a valid gift of his property. See, in this connection, Brooks v. Mitchell, 163 Md. 1 (161 Atl. 261, 84 A. L. R. 547), and annotation in 40 A. L. R. 1263. In the instant case, the savings and loan association has paid the money in the account into the registry of the court, it making no contention that no transfer of the account has been made on its books, and it has no further interest in the fund, and clearly the administrator is not in position to invoke this Code section. The court properly overruled the general demurrers of the administrator.
Judgment affirmed. All the Justices concur, except Head, J., who dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337646/ | 93 S.E.2d 484 (1956)
141 W.Va. 782, 62 A.L.R.2d 965
London MILLS, etc., Who Sues by Ollie Mills, His Committee,
v.
Joe W. DE WEES et al.
No. 10769.
Supreme Court of Appeals of West Virginia.
Submitted April 24, 1956.
Decided June 12, 1956.
*485 D. Grove Moler, Mullens, for plaintiffs in error.
Kingdon & Kingdon, Arthur Ritz Kingdon, Mullens, for defendants in error.
RILEY, Judge.
London Mills, an insane person, who sues by his Committee, instituted this action of trespass on the case against the defendants, Joe N. DeWees and Glen M. DeWees, to recover the sum of two thousand dollars, which the plaintiff claims as damages for the destruction of his 1952 Model Willys automobile, alleged to have resulted from a collision on June 6, 1953, on State Route No. 10 in Wyoming County, West Virginia, from the alleged negligent operation by the defendant, Glen M. DeWees, of an automobile owned by the operator's father, Joe N. DeWees. This writ of error is prosecuted to a judgment in favor of the plaintiff and against the defendants in the amount of $1,694.40, based upon a directed verdict in favor of plaintiff.
To the declaration the defendants filed a joint and several plea of not guilty, and a joint and several plea of res judicata, the latter of which is to the effect that the recovery in this action for damages for the destruction of plaintiff's automobile, is barred because of a recovery of damages by the same plaintiff against the same defendants, obtained in a former action for the recovery of damages for alleged personal injuries, instituted in the Circuit Court of Wyoming County at December, 1953, rules, allegedly grounded upon the same act of negligence on the part of the defendants, upon which the instant action is based, in which prior action the plaintiff is alleged in the special plea to have recovered a judgment in the amount of eight thousand dollars, which judgment was paid and satisfied.
The trial court sustained plaintiff's demurrer to defendants' special plea, to which ruling the defendants excepted.
*486 At the instant trial upon the issue of the plea of not guilty, the trial court overruled defendants' motion that plaintiff be not permitted to introduce any evidence in support of the allegations of plaintiff's declaration on the basis of plaintiff's recovery for personal injuries in the prior action, and rejected defendants' tender of the pertinent parts of the record in the former action, in which action no claim was asserted for property damages; and, over defendants' objection, gave plaintiff's instruction No. A, by which the jury was directed to return a verdict for the plaintiff, which instruction submitted to the jury the assessment of damages for the destruction of plaintiff's automobile; and the trial court having overruled defendants' several motions: (1) for judgment won obstante veredicto, and (2) for a new trial for the defendants, the court entered judgment in favor of the plaintiff upon the verdict of the jury.
This record discloses that on June 6, 1953, the plaintiff, London Mills, an insane person, who was then sane, was driving his 1952 Model Willys automobile with an overdrive on State Route No. 10 in Wyoming County, West Virginia, when it was collided with by the automobile owned by Joe N. DeWees, and operated at the time by his son, Glen M. DeWees. Mills suffered personal injuries, and subsequently mental disturbances, and his wife, Ollie Mills, was appointed his Committee.
According to the factual issue, which would have been raised by the plea res judicata, had not plaintiff's demurrer to the plea been sustained and defendants' tender of evidence at the trial been refused, over defendants' objection, the plaintiff, London Mills, an insane person, who sues by Ollie Mills, his Committee, instituted in December, 1953, an action of trespass on the case in the Circuit Court of Wyoming County against the defendants, Joe N. De Wees and Glen M. DeWees, the declaration in which action sets forth the collision upon which the instant action is based, and sets up a claim for fifty thousand dollars for personal injuries, medical expenses, and loss of wages.
The declaration in the former action made no reference or claim for property damages whatever, and no other or separate action had been previously instituted for such alleged property damages, nor was any other action involving any property damages, growing out of the collision, then pending in the Circuit Court of Wyoming County, or elsewhere. In the former action the defendants filed a plea of the general issue. Upon the trial the jury returned a verdict in favor of the plaintiff and against the defendants in the amount of eight thousand dollars, upon which the trial court entered judgment, and, the judgment having been paid and satisfied, the case was retired from the docket of the Circuit Court of Wyoming County.
At the beginning of the instant trial, the defendants objected to the introduction of any evidence by the plaintiff, which objection was overruled; whereupon the defendants tendered in evidence the declaration and former order in the former trial, which evidence was excluded by the court.
The rulings of the trial court assigned as error are: (1) In sustaining plaintiff's demurrer to the defendants' joint and several special plea of former adjudication; (2) in permitting the plaintiff to introduce evidence in support of the allegations of his declaration, and in rejecting defendants' tender in evidence of the declaration and judgment in the former case; (3) in giving plaintiff's peremptory instruction No. A, over defendants' objection; (4) in entering judgment upon the jury verdict in favor of the plaintiff, and in refusing to set aside the verdict for the plaintiff; and (5) in refusing to sustain defendants' motion to enter a judgment for the defendants, notwithstanding the verdict in plaintiff's favor.
These assignments of error raise the issue whether a plaintiff, who has sustained personal injuries and property damage in an automobile collision, caused by a single act of negligence, has a single cause of action, and, therefore, the elements of damages, consisting of injury to the person *487 and property, must be joined in the same action, so that the plaintiff would be barred in a subsequent action for an element of damages not embraced in such action and joined.
Though this Court in a number of cases has come close to the holding that a single wrongful act, or negligent omission to act, causing an injury to both person and property of the same person, constitutes one cause of action with items of damages, and, therefore, the cause of action cannot be split and the recovery of a judgment on one item of damages may be pleaded in bar to recovery for the other item of damages the exact question presented by this record has never been decided by this Court. In the syllabus of Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729, this Court held: "To justify the application of the doctrine of res judicata, `* * * there must be a concurrence of four conditions, namely: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons, and of parties to the action; (4) identity of the quality in the persons for or against whom the claim is made.' Opinion, Marguerite Coal Co. v. Meadow River Lumber Co., 98 W.Va. 698, 127 S.E. 644." In point 1 of the syllabus of Larzo v. Swift & Co., 129 W.Va. 436, 40 S.E.2d 811, it was held: "In an action by a married woman for recovery of damages for injuries sustained by her, she may, in addition to compensation for physical pain, mental anguish and impairment of her capacity to enjoy life, recover for damages to her property caused by the same negligent conduct which occasioned her injury." In point 1 of the syllabus of Thalman v. Schultze, 111 W.Va. 64, 160 S.E. 303, this Court, dealing with the question of pleadings held that: "Where the damages result to a party in the same manner, and from the same negligent or wrongful act of the defendant, and are coincident in time, and the cause of action accrues to the plaintiff in the same right and against the defendant in the same character or capacity, they may be joined in the same count in the declaration." In point 1 of the syllabus of Hudson v. Iguano Land & Mining Co., 71 W.Va. 402, 76 S.E. 797, the holding of this Court was: "When the cause of action in a second suit is the same as that in a former one and the parties are identical, both are concluded by the judgment or decree in the former suit, not only as to what was actually decided therein, but likewise as to everything the plaintiff could have adduced in support of his claim and as to everything the defendant could have relied upon in defense. The cause of action is merged in the judgment or decree." In point 1 of the syllabus in Sayre's Adm'r v. Harpold, 33 W.Va. 553, 11 S.E. 16, it was held: "An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto, and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata."
But in points 1 and 3 of the syllabus of Lutz v. Williams, 84 W.Va. 216, 99 S.E. 440, this Court held:
"1. A cause of action between persons who were parties to a former adjudication, set up in a subsequent action between them, is not res judicata by the former decision, unless it is identical with the one actually or constructively heard and determined in the former suit.
* * * * * *
"3. A reservation in a decree in such former adjudication, saying it shall not be construed to be an adjudication as to the title to the fund in question, except that it does not belong to the principal, saves the right to proceed against the bank as depositary of the agent."
See, however, the syllabus of Perdue v. Ward, 88 W.Va. 371, 106 S.E. 874, 14 A. *488 L.R. 539, which reads: "A final decree in an injunction suit, instituted solely for the purpose of inhibiting defendants from obstructing plaintiffs' right of way over defendants' land, and which decree affords that relief only, is not an estoppel to a subsequent suit at law by the same plaintiffs against the same defendants to recover damages caused by the obstruction of plaintiffs' right of way; and especially is this true where the record of the injunction suit discloses that the question of damages for the obstruction was not even mentioned."
To be distinguished from the foregoing cases is the case of Pridemore v. Lucas, 131 W.Va. 1, 47 S.E.2d 839. In point 1 of the syllabus of Pridemore v. Lucas, supra, it was held: "Where a material question in a pending suit has been put in issue in a former suit, and there judicially determined such question is conclusively settled by a decree rendered therein, and cannot be reasserted in a subsequent suit between the same parties and involving the same claim, demand or cause; but where the pending suit is upon a different claim, demand or cause, the decree in the first suit operates as a bar only as to questions actually litigated and determined in the former suit."
From the foregoing quoted portions of the syllabuses of the above-cited cases decided by this Court, it seems that some inconsistency through the course of years has crept into the decisions of this Court. For instance point 1 of the syllabus of Sayre's Adm'r v. Harpold, supra, holds that the "adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto, and coming within the legitimate purview of the subject-matter of the action"; yet in point 1 of the syllabus of Lutz v. Williams, supra, this Court held that "A cause of action between persons who were parties to a former adjudication, set up in a subsequent action between them, is not res judicata by the former decision, unless it is identical with the one actually or constructively heard and determined in the former suit."
Because in the former action of Mills v. DeWees, in which a verdict for personal injuries was rendered and a judgment entered thereon, in neither the pleadings nor the proof was the question raised involving the adjudication of the claim for property damages, upon which this action is based, the apparent inconsistency in some of the West Virginia cases is not material to the adjudication of this case.
Also to be distinguished from the foregoing cases decided by this Court is the case of Dunsmore, Executrix of the Estate of Jewette Frederick Dunsmore, deceased v. Hartman, 140 W.Va. 357, 84 S.E.2d 137, cited by counsel for the defendants, and decided by this Court on certificate of the ruling of the Circuit Court of Pendleton County in overruling the defendant's demurrer to the declaration. In that case this Court, in reversing the ruling of the trial court, held that a demurrer to a declaration, wherein damages for wrongful death under the Wrongful Death Act, Code, 55-7-5, and 55-7-6, as amended by Section 6, Article 7, Chapter 1, Acts of the Legislature, Regular Session, 1955, were demanded in one count of the declaration, and damages to property were demanded in another count of the declaration, should be sustained, notwithstanding all of such damages were alleged in the declaration to have resulted from the same wrongful act of the defendant. The Wrongful Death Act, contained in Code, 55-7-5, and 55-7-6, as amended, provides a separate and distinct cause of action, in which the amount of recovery at the time the Dunsmore case was decided was limited to ten thousand dollars, and by virtue of Section 6, Article 7, Chapter 1, Acts of the Legislature, Regular Session, 1955, is limited to a recovery of twenty thousand dollars in those cases in which the plaintiff proves by a preponderance of the evidence financial or pecuniary loss sustained by a distributee or distributees of the deceased person in an amount exceeding the sum of ten thousand *489 dollars but not more than twenty thousand dollars; whereas in the common law actions of trespass on the case to recover property damages for injury to or destruction of property and personal injuries, there is no common law or statutory rule limiting the recovery of damages, where such damages are established for jury determination by competent proof.
Likewise the foregoing cases, as well as the instant case, may be distinguished from the recent case of Alloy v. Hennis Freight Lines, 139 W.Va. 480, 80 S.E.2d 514, 515, which simply held that under Chapter 55, Article 7 of the Code, as amended by Chapter 2, Acts of the Legislature, Regular Session, 1945, and Chapter 4, Acts of the Legislature, Regular Session, 1949, in point 1 of the syllabus: "* * * if a person dies of injuries, occasioned by the wrongful act of another, pending trial of an action to recover for such injuries, such action may be revived in the name of his personal representative, but such further proceedings shall conform to an action for wrongful death in which recovery is limited to the amount of $10,000."
This case has been well and exhaustively argued and briefed by both counsel for the plaintiff and defendants; and from the full collation of authorities contained in their respective briefs it appears that the cases arising and decided in other jurisdictions fall into three general classes: (1) What is generally designated as the majority rule, which is to the effect that a single wrongful act or negligent omission causing an injury to both person and property of the same person constitutes one cause of action with separate items of damages, and, therefore, a recovery of a judgment for one or more items of damages may be pleaded in bar of an action for recovery for another item of damages, allegedly caused by the same wrongful act, which majority rule embraces no exceptions based upon: (a) subrogation under an insurance policy or other contract; (b) upon the assignment of one or more, but not all, of the items of damages embraced in the single cause of action; (c) for the reason that the cause of action for property damages is assignable, whereas a claim for personal injuries is not assignable; and (d) for the reason that there is or may be a different statute of limitations running against the assertion of a claim for property damages than that running against a claim for personal injuries.
The majority rule is succinctly and well stated in the case of Dearden v. Hey, 304 Mass. 659, 24 N.E.2d 644, 127 A.L.R. 1077, Notes 1081 and 1082, in which the Massachusetts Supreme Judicial Court held that damages resulting from a single tort, when suffered by one person, though such damages are partly for damages or injury to property and partly for personal injuries, are the subject of only one action against the defendant tort-feasor. The rationale of the Massachusetts Supreme Judicial Court was postulated upon the two positions: (1) that damages to property and personal injuries suffered by one person as the result of a single tort are merely items of damages leading from the same wrong; and (2) that the period fixed by the statute of limitations is different in cases of personal injury than in cases involving property damages, and that a cause of action for property damages is assignable, whereas a cause of action for personal injuries is not, are of themselves insufficient to give rise to two separate causes of action.
For excellent collations of authorities supporting the majority rule, see note to the Dearden case, contained in 127 A.L.R. 1081 and 1082; and the annotation to Underwood v. Dooley, 197 N.C. 100, 147 S.E. 686, 64 A.L.R. 656, Notes 663 to 668, inclusive. Also see the following cases set forth in the foregoing annotations contained in the above-cited American Law Reports, which support the majority rule: Southern R. Co. v. King, 5 Cir., 1908, 160 F. 332, 87 C.C.A. 284, affirmed in 1910, 217 U.S. 524, 30 S.Ct. 594, 54 L.Ed. 868, declaring Georgia Law; Boyd v. Atlantic Coast Line R. Co., 1914; D.C., 218 F. 653, declaring Georgia Law; Birmingham Southern R. Co. v. Lintner, 1904, 141 Ala. 420, 38 So. 363, 109 Am.St.Rep. 40, 3 Ann.Cas. 461; Jenkins v. Skelton, 1920, 21 *490 Ariz. 663, 192 P. 249; Georgia Ry. & Power Co. v. Endsley, 1928, 167 Ga. 439, 145 S.E. 851, 62 A.L.R. 263 (rulings and judgment adopted and applied by court of appeals in, 1929, 39 Ga.App. 152, 146 S.E. 352); Western & A. R. Co. v. Atkins, 1914, 141 Ga. 743, 747, 82 S.E. 139; Clancey v. McBride, 1929, 251 Ill.App. 157; Cassidy v. Berkovitz, 1916, 169 Ky. 785, 185 S.W. 129; Doran v. Cohen, 1888, 147 Mass. 342, 17 N.E. 647; Bliss v. New York C. & H. R. R. Co, 1894, 160 Mass. 447, 36 N.E. 65, 39 Am.St.Rep. 504; Braithwaite v. Hall, 1897, 168 Mass. 38, 46 N.E. 398, 1 Am. Negl. R. 623; King v. Chicago, M. & St. P. R. Co, 1900, 80 Minn. 83, 82 N.W. 1113, 50 L.R.A. 161, 81 Am.St.Rep. 238; Kimball v. Louisville & N. R. Co, 1909, 94 Miss. 396, 48 So. 230; Coy v. St. Louis & S. F. R. Co, 1915, 186 Mo.App. 408, 172 S.W. 446; Anderson v. Jacobson, 1919, 42 N.D. 87, 172 N.W. 64; Fields v. Philadelphia Rapid Transit Co, 1922, 273 Pa. 282, 117 A. 59; Frankel v. Quaker City Cab Co, 1923, 82 Pa.Super. 217; Mobile & O. R. Co. v. Matthews, 1906, 115 Tenn. 172, 91 S.W. 194; Smith v. Lenzi, 1929, 74 Utah 362, 279 P. 893; Pillsbury v. Kesslen Shoe Co, 1939, 136 Me. 235, 7 A.2d 898; Holcombe v. Garland & Denwiddie, 1931, 162 S.C. 379, 160 S.E. 881; Flickner v. One Chevrolet Truck & Trailer, 1935, 178 S.C. 53, 182 S.E. 104; Booth v. Frankenstein, 1932, 209 Wis. 362, 245 N.W. 191; Tuttle v. Everhot Heater Co, 1933, 264 Mich. 60, 249 N.W. 467.
Also supporting the majority rule, notwithstanding there was partial subrogation as to damages for injury to property, is the well-reasoned case of Sprague v. Adams, 139 Wash. 510, 247 P. 960, 963, 47 A.L.R. 529, a case involving personal injuries sustained in an automobile collision caused by the defendant's negligence, in which the Supreme Court of Washington held that the trial court had properly rejected the plaintiff's offer of proof to show the prior suit was instituted for the benefit of an insurance company, which had become subrogated to plaintiff's claim for property damages under an insurance policy with plaintiff, and in which the Supreme Court of Washington rationalized that the inquiry before that Court was not what rights the insurance company may have acquired in the plaintiff's claim, but "whether or not respondents [that is the defendants in the trial court] shall be subjected to more than one suit for their single tort."
To the same effect see Kidd v. Hillman, 14 Cal.App.2d 507, 58 P.2d 662, 664, an action brought in plaintiff's name by the assignee of her insurer, who had honored plaintiff's claim under a policy for damages to plaintiff, in which the California Court of Appeals sustained the trial court in overruling plaintiff's contention that the insurance company, having indemnified plaintiff for the damage to her car, became subrogated to plaintiff's right of action against the defendant; and that the plaintiff had executed a release in favor of the defendant and, consequently, had no right, title or interest in the damage to her automobile, and therefore her present action was barred either by the release executed by the defendant or her recovery in the trial action, stating that: "It was the duty of the insurer to protect its right of subrogation, assuming it had such right. Not having done so, it cannot now be heard to complain. * * * The action is barred both by the release and by the rule against the splitting of causes of action."
(2) An exception to the majority rule has been established in several cases involving subrogation under insurance policies.
An exception to the general rule is well exemplified by the case of Underwood v. Dooley, 197 N.C. 100, 147 S.E. 686, 64 A.L.R. 656, in which the North Carolina Supreme Court, adhering to the majority rule, and perhaps by way of dictum, said that an action for damages for injury either to the person or property caused by a single tort will be dismissed, where it appears at the date of the institution of the action that another action by the same plaintiff against the same defendant, based upon the same wrongful act has been instituted, the pendency of an action brought *491 by the insurer of an automobile to recover damages for collision against a defendant, whose negligence is alleged to have caused such damages, is not ground for dismissing an action brought by the owner of the automobile against the same defendant for personal injuries resulting from the collision. Typical of the exception to the general rule is the case of Underwriters at Lloyd's Insurance Co. v. Vicksburg Traction Co., 106 Miss. 244, 63 So. 455, 51 L.R.A.,N.S., 319, in which the Mississippi Supreme Court held that the insurer of an automobile, who, in accordance with the provisions of the insurance policy, had become subrogated to the claim of the owner of the automobile for damages thereto against the street railway company, before the institution by such owner of an action for personal injuries, growing out of the same alleged wrongful act, in which a judgment for the insurer had been recovered, is not precluded thereby from maintaining an action under the subrogation clause of the policy of insurance. In this case the Court distinguished the case of Kimball v. Louisville & N. R. Co., 94 Miss. 396, 48 So. 230, in which the plaintiff himself had split the cause of action, when he filed an action to recover damages for personal property, and then instituted his action to recover for injuries to his person. In Farmer v. Union Insurance Co., 146 Miss. 600, 111 So. 584, a case which involved subrogation under an insurance policy, the Mississippi Supreme Court reached a different result than that reached by that Court in Underwriters at Lloyd's Insurance Co. v. Vicksburg Traction Co., supra. In the Farmer case, the plaintiff Farmer instituted an action against the defendant insurance company to recover on an insurance policy for the destruction of his automobile. To the declaration in that action the defendant insurance company filed a special plea, in which it was alleged that the policy contained a subrogation clause; that Farmer had sustained personal injuries when the automobile was destroyed by collision with a train; that he instituted an action against the railroad company for damages to both his person and to the automobile; that while the action was pending plaintiff amended his declaration so as to eliminate any claim for damages to the automobile; that an agreed judgment was then rendered in plaintiff's favor, and at the same time the railroad company was released from liability for destruction of the automobile, and thus the subrogation clause of the insurance policy was rendered inoperative, and, therefore, the defendant insurance company should be relieved from liability on the policy. The Mississippi Supreme Court held that the trial court committed no error in sustaining defendant's demurrer to the replication to the special plea, and in dismissing the action on the ground that, if plaintiff intended to reserve defendant's right of subrogation, provided for in the policy, the judgment against the Railroad Company should have so recited.
In Globe & Rutgers Fire Insurance Co. v. Cleveland, 162 Tenn. 83, 34 S.W.2d 1059, 1061, it was held that the plaintiff could not recover for damages to his automobile in an action brought in the plaintiff's name for the use of his insurer under the provision in the insurance policy entitling the insurer, after payment of property loss, to a share in any recovery made by the insured for property damages, where another action by the plaintiff for personal injuries sustained in the same action was pending prior to the time when the assignment to the insurer of the property damages was made. In the Globe & Rutgers Fire Insurance Company case, the Supreme Court of Tennessee observed that "The pleadings disclose no act or omission on the defendant's part which can subject him to a second suit on the same right of action, whether brought by the original plaintiff, or by one who has acquired his interest by assignment or by subrogation."
The Supreme Court of Tennessee likewise distinguished the case of Underwood v. Dooley, supra, on the grounds that: (1) The insurer plaintiff in the first action could not have recovered damages for personal injuries sustained by him; and (2) *492 the statute of North Carolina not only authorized the insurer to sue in his own name to recover of the wrongdoer the sum it had paid to the insured, asserting its right of subrogation, "but deprived the insured of the right to sue for the damage for which he had received compensation from his insurer." The Tennessee Court further observed: "At the time the insurer in the case before us paid the loss under its contract of insurance, and obtained the written assignment from the insured, the latter's action against the defendant was pending in the trial court and his declaration was subject to amendment by the addition of a count seeking damages for the injury to the automobile. If the insurer knew of the pendency of the action, it could have protected its interests under the assignment by tendering such an amendment, in the name of the insured and for its benefit. * * * If the insurer was ignorant of the pendency of the owner's suit until after verdict therein, so that its right to intervene was lost, it could not have acquired thereby a right of action, legal or equitable, against the defendant, for the latter did nothing but respond to the owner's suit which the owner had the legal right to prosecute, and could not defend on the ground that the insurer was not joined." In the Globe & Rutgers Fire Insurance Company case, the Supreme Court of Tennessee likewise observed: "The plea would undoubtedly be good against Hunter [the owner of the damaged automobile], if suing in his own right. `A single tort can be the foundation for but one claim for damages. * * * All damages which can by any possibility result from a single tort form an indivisible cause of action. Every cause of action in tort consists of two parts, to wit, the unlawful act, and all damages that can arise from it. For damages alone no action can be permitted.' " The Supreme Court of Tennessee cited Cincinnati N. O. & T. P. Ry. Co. v. Roddy, 132 Tenn. 568, 574, 179 S.W. 143, 144, L.R.A.1916E, 974.
In the case of Vasu v. Kohler's, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 709, 166 A.L.R. 855, the Ohio Supreme Court, the court of last resort in the State of Ohio, reversed a judgment of the Court of Appeals of Mahoning County, Ohio, an intermediate appellate court in the State of Ohio, and remanded the cause to that court with directions. In point 6 of the syllabus of that case, written by the Court, the Ohio Supreme Court held: "Where an injury to person and to property through a single wrongful act causes a prior contract of indemnity and subrogation as to the injury to property, to come into operation for the benefit of the person injured, the indemnitor may prosecute a separate action against the party causing such injury for reimbursement for indemnity monies paid under such contract." According to the American Law Reports annotation at page 871: "* * * the deduction seems fairly warranted that the result of the Vasu Case is based upon two separate and independent grounds, (1) that the plaintiff had two causes of action, one for his property damage and one for his personal injuries, and (2) that, even assuming his cause of action was single and indivisible, it was still proper for the insurance company, as subrogee of a portion of such cause of action, to bring a separate and independent action to enforce its rights against the wrongdoer."
For well considered annotations concerning the rights and remedies incident to subrogation to one but not to both or all of the elements of a single cause of action for injury to person and damages to property, see the annotation to the Vasu case, 166 A.L.R. 870, 873, and the annotations to the cases of Hayward v. State Farm Mutual Automobile Insurance Co, 212 Minn. 500, 4 N.W.2d 316, 140 A.L.R. 1236, 1241 to 1249, inclusive; and Sprague v. Adams, 139 Wash. 510, 247 P. 960, 47 A.L.R. 529, 536 to 538, inclusive. In the annotation contained in 47 A.L.R, 536 to 538, inclusive, the case of Sprague v. Adams, supra, is criticized in the following language:
"The rule is fully established that, in the absence of an agreement to the contrary, one cannot divide a single *493 cause of action and make it the subject of several actions. * * *
"The conclusion of the court in the SPRAGUE CASE, that the judgment in the action by the insurer, by virtue of its right of subrogation for damage to the car, was a bar to a subsequent action by the insured for damage to his person, rests upon the premise that damage to person and to property in the same action and by the same tort constitutes but a single, indivisible cause of action."
(3) The English or minority rule is to the effect that damages to property, or injury to the same person, although the result of a single wrongful act, give rise to different rights and distinct causes of action, and, therefore, a recovery upon the one cause of action cannot be pleaded in bar of a recovery on the other cause of action. This rule is exemplified in the case of Brunsden v. Humphrey, Vol. XIV of the Law Reports, Queen's Bench Division (1884) 141, in which the plaintiff brought an action in the county court to recover for damages to his cab occasioned by the negligence of defendant's servant, and, having recovered the amount claimed and having afterwards brought an action in the British High Court of Justice against the defendant, claiming damages for personal injury sustained by the plaintiff for the same negligence, the Court of Appeals, embraced in the Supreme Court of Judicature, reversed the judgment of the Queen's Bench Division, contained in 11 Q.B.D. 712, and held that the action in the High Court of Justice was maintainable, and was not barred by the previous proceedings in the county court. This minority, or so-called English rule, has been adopted in minority but ever-growing jurisdictions in this country. Recently in Carter v. Hinkle, 1949, 189 Va. 1, 52 S.E.2d 135 the Supreme Court of Appeals of Virginia held that the common law rule still prevails in the Commonwealth of Virginia; and that a person injured in both his person and property, through a single negligent act, may join both claims for damages in the same action, but does not have to do so, and such plaintiff, if he so desires, may bring an action of trespass or trespass on the case, or under the Virginia statute, Virginia Code, 1919, Vol. 2, Section 6086, wherever trespass will lie, trespass on the case may be brought. In this case the Supreme Court of Appeals of Virginia held specifically that the plaintiff, who suffered both damages to his property and injury to his person, as the result of a single wrongful act of defendant's agent in causing an automobile collision, may maintain two separate actions therefor, so that judgment for the property destroyed recovered in the first action would not bar action for personal injuries sustained, as the result of the same wrongful act. Two members of the Court, Eggleston, Judge, and Chief Justice Hudgins, dissented. The Supreme Court of Appeals of Virginia, cited in support of the minority view, the following cases: Vasu v. Kohler's, Inc., 1945, 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855, and Reilly v. Sicilian Asphalt Paving Co., 170 N.Y. 40, 62 N.E. 772, 773, 57 L.R.A. 176, 88 Am.St.Rep. 636. Likewise supporting the minority rule are cases collated in the annotation to American Law Reports in Underwood v. Dooley, supra, 64 A.L.R. 656, 670, 674, and the annotation to Dearden v. Hey, supra, 127 A.L.R. 1083 and 1084.
As heretofore stated the exact question now before this Court has never been decided by the Court; and because of the great diversity in the decisions of this country and the fact that the cases decided by this Court have approached closely to the adoption of the majority rule, we have taken the liberty, even at the risk of making this opinion seem prolix, to set forth somewhat in detail the problem which confronts this Court. We are well aware that the criticism of the case of Sprague v. Adams, supra, contained in the annotation thereto, is not without merit.
The vice of the majority view, which is to the effect that damages resulting from a single action at law, when suffered by one person, though such damages may be partly for damages to or destruction of *494 property, and partly for personal injuries, are subject to only one action against the tort-feasor or tort-feasors, is that where there is a prior contract of indemnity and subrogation, such as in the instant case, the indemnitor by bringing an action and recovering damages in the name of the insured, may preclude the insured from thereafter bringing an action to recover for personal injuries growing out of the same wrongdoing, though such injury may be extensive and of such character that, except for the application of the majority rule, it would entitle the injured party to damages greatly in excess of the property damage caused by the same tort. And, contrariwise, an insured under a prior contract of indemnity and subrogation, by bringing an action and recovering damages for personal injuries, may, under the application of the majority rule, preclude the insurer, though the insurer has a formal contract of indemnity and subrogation, from asserting its rights thereunder in a subsequent action. Further, if there are two or more indemnitors, under policies of insurance and subrogation, embracing property damage, and a claim for personal injuries growing out of the same alleged wrong, which has caused the property damage, there may be a race between the several indemnitors and the insured as to which one goes to court first and proceeds to final judgment.
The vice of the minority view and the exception to the majority view, as adopted by the decisions in some jurisdictions, is that it will permit the splitting of what logically is a single cause of action, and a defendant which was committed a tort which has caused both property damage and personal injuries, may be harassed by two or more actions at law, though he has committed a single wrong.
In view of the decisions of this Court which, as heretofore stated, do not involve the exact question now before us, and with full realization of the injustice of subjecting a wrongdoer or wrongdoers to two or more actions at law for a single wrong, this Court reverses the judgment of the Circuit Court of Wyoming County, sets aside the jury verdict, and, under the holding of this Court in point 8 of the syllabus of Koblegerd Company v. Maxwell, 127 W.Va. 630, 34 S.E.2d 116, grants the defendants a new trial.
Judgment reversed; verdict set aside; new trial awarded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338936/ | 510 S.E.2d 46 (1998)
235 Ga. App. 806
WILLIAMS
v.
WORSLEY et al.
No. A98A0991.
Court of Appeals of Georgia.
November 24, 1998.
Reconsideration Denied December 18, 1998.
Certiorari Denied April 9, 1999.
*47 Porter, Lehman & Chason, Thomas L. Lehman, Cairo, for appellant.
Ronnie J. Lane, Donalsonville, for appellees.
SMITH, Judge.
Alice and Allen Worsley, as parents of Ashley Worsley, brought this wrongful death action against Thomas Williams, Alice Worsley's father, after 13-year-old Ashley was electrocuted on Williams's property. The *48 case was tried to a jury, which returned a verdict in favor of the Worsleys in the amount of $10,000. The trial court subsequently granted the Worsleys' motion for new trial only on the issue of damages, on the ground that the jury's award was "clearly so inadequate as to be inconsistent with the preponderance of the evidence." After a second trial, a jury found the full value of Ashley's life to be $750,000. Williams appeals, raising several enumerations concerning both trials.
Ashley was found dead under an open building, or shelter, owned by Williams, his grandfather. It appears from the evidence presented that a chain, which had been hung over a rafter in the shelter, contacted a fluorescent light fixture attached to the rafter. The fixture was not grounded, and expert testimony was presented that the ballast in the fixture had shorted. Apparently unknown to anyone, the electric switch in the shelter had been engaged, although the lights were not actually operating. Ashley was electrocuted when his hand touched the chain. This building, used as a storage shelter, had been constructed sometime in 1980 or 1981 by Williams with the assistance of Allen Worsley. Williams, however, wired the building for electricity and admitted he did not ground the fluorescent light fixture. He testified that he meant to ground the fixture but never did.
Williams raises several arguments with respect to each trial. Finding no error, we affirm.
1. Williams contends the trial court erroneously failed to instruct the jury during the first trial that Ashley was a licensee on Williams's property and on the applicable standard of care to be applied to licensees.
A licensee is a person who is not a customer, servant, or trespasser, does not have a contractual relationship with the owner of the premises, and is permitted to enter the premises merely for his or her own interests, gratification, or convenience. OCGA § 51-3-2. Williams argues that Ashley was inside the shelter for his own gratification and therefore that a charge on the duty owed to licensees was required. But the record is silent as to why Ashley was inside the shelter. The question of whether Ashley was a licensee was not raised by the evidence, and a charge on this issue was therefore unauthorized. "For a refusal to give a requested charge to be error, the request must be entirely correct, accurate, adjusted to the pleadings, law and evidence, and not otherwise covered in the general charge. [Cit.]" Smith v. Curtis, 226 Ga.App. 470, 471(2), 486 S.E.2d 699 (1997).
2. Williams contends the trial court erroneously permitted the Worsleys' expert to testify that the fixture was negligently installed. We do not agree. The expert testified that the fixture was not connected in a safe manner and that electrocution is a possibility when a fixture was not properly grounded. Williams objected to the expert's subsequent testimony that the fixture was negligently installed. We find no error in the admission of this testimony, for the average person is not familiar with electrical installation procedure. And "it is well established that an expert witness may testify even as to the ultimate issue of fact where the inferences to be drawn from the evidence are beyond the ken of jurors. [Cit.]" Fouts v. Builders Transp., 222 Ga.App. 568, 576-577(8), 474 S.E.2d 746 (1996) (Department of Transportation engineer properly allowed to testify that intersection negligently designed).
3. Williams argues that the trial court erroneously concluded that comparative negligence was not an issue in the first trial. Had comparative negligence been an issue, the trial court would not have been authorized to grant a new trial on damages only. See Robinson v. Star Gas of Hawkinsville, 269 Ga. 102, 104-105(2), 498 S.E.2d 524 (1998). Although Williams has submitted the affidavits of two jurors reciting that the jury considered, among other things, the Worsleys' failure to control Ashley, as well as the "negligence of the deceased minor child," we cannot agree with Williams that comparative negligence was an issue properly raised during the first trial. Williams did not include in his pleadings any allegations of negligence on the part of Ashley or the Worsleys, nor was comparative negligence made an issue in *49 the pretrial order. Furthermore, even if evidence was arguably presented at trial hinting that the Worsleys or Ashley may have been at fault, Williams did not argue that comparative negligence principles applied, and the jury was not instructed that it could reduce any award in proportion to plaintiffs' fault. See Bridges Farms v. Blue, 267 Ga. 505, 480 S.E.2d 598 (1997) (under comparative negligence doctrine, plaintiff whose negligence is less than negligence of defendant not denied recovery, but damages diminished in proportion to degree of fault attributable to plaintiff). Comparative negligence principles, which would have directed the jury concerning the effect of evidence of plaintiffs' fault, were not affirmatively placed before the jury. Comparative negligence therefore was not properly made an issue.
4. The trial court granted the Worsleys' motion for new trial only as to damages, on the ground that the jury's verdict was inadequate. Williams contends this was error. We do not agree.
We recognize the difficulty faced by any jury in determining the value of human life. This difficulty is necessarily compounded when a jury must place a value on the life of a child, particularly since such objective standards as earning capacity often have not yet been established with regard to children. A jury making such a complex decision must make its award based on the subjective standard of its collective experience: "[T]he value of the child's life must be established by the enlightened conscience of an impartial jury as applied to the evidence in the case, including testimony as to such child's age, life expectancy, precocity, health, mental and physical development, family circumstances, and from the experience and knowledge of human affairs on the part of the jury." (Citation and punctuation omitted.) Reliance Ins. Co. v. Bridges, 168 Ga.App. 874, 888, 311 S.E.2d 193 (1983). Under the authority of OCGA § 51-12-12(b), a trial court may grant a new trial only as to damages if the jury's damages award "is clearly so inadequate ... as to be inconsistent with the preponderance of the evidence."
Of course, we also recognize that any life, especially that of a child, escapes precise valuation and must be measured against subjective standards. We further recognize that jury verdicts, in general, are to be given great deference. Nevertheless, we have no hesitation in saying that the first jury's $10,000 award for the value of Ashley's life was inconsistent with a preponderance of the evidence. Undisputed evidence was presented to the jury that Ashley, who was in seventh grade at the time of his death, was a good student, was obedient, and "was a very good child." No countervailing evidence was presented showing, for example, that Ashley was in poor health and not expected to live a normal life span. And as discussed above, comparative negligence principles were not affirmatively placed in issue in the case; the jury was given no guidance as to the effect of the Worsleys' or Ashley's negligence, if any, on its verdict. Under these circumstances, we cannot say the trial court abused its discretion in granting a new trial on damages only.
5. Williams enumerates as error the trial court's refusal to permit him "to amend his answer before entry of the pretrial order prior to the second trial to reflect the evidence admitted at the first trial of the matter relating to comparative negligence and responsibility of the parties." In a separate enumeration he similarly contends that the trial court erred in granting the Worsleys' motion in limine before the second trial, "thereby eliminating discussion of causation, foreseeability, comparative negligence and other issues during the second trial of the case and denying [him] a fair trial." But because the trial court properly allowed a new trial only on the issue of damages, further litigation on the issue of the parties' negligence was precluded. Williams was afforded the opportunity to make comparative negligence an issue in the first trial and failed to do so. We find no merit in these arguments.
6. Williams contends that the trial court's grant of the Worsleys' motion for new trial only on damages defeated his due process rights to a fair and impartial jury as guaranteed by the Georgia Constitution. Assuming that Williams properly raised the *50 issue and secured a ruling below, the trial court's ruling was not error. A new trial only on damages is expressly authorized in certain instances by OCGA § 51-12-12(b). Williams was given full and fair opportunity in the first trial to place before the jury issues concerning comparative negligence, which may or may not have affected the jury's award.
7. Williams argues the trial court erred in admitting photographs depicting Ashley at the scene of his death. The "admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. Even evidence of doubtful relevancy or competency should be admitted and its weight left to the jury. Further, where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it." (Citations and punctuation omitted.) Dept. of Transp. v. Dalton Paving &c., 227 Ga.App. 207, 221(8), 489 S.E.2d 329 (1997). The photographs at issue here were at least marginally relevant to the issues raised in this case. But even assuming, without deciding, that the photographs were not relevant to any issue raised in the second trial only on damages, their admission was harmless; they were not gruesome, nor has Williams shown, under the circumstances present here, that the photographs were particularly inflammatory. See generally Matthews v. State, 268 Ga. 798, 800(3)(b), 493 S.E.2d 136 (1997); Ga. Osteopathic Hosp. v. O'Neal, 198 Ga.App. 770, 780(13), 403 S.E.2d 235 (1991) (full concurrence as to Division 13).
8. Williams contends the trial court erred during the second trial by instructing the jury that the value of Ashley's life was measured by the value to the deceased. He apparently takes issue with that portion of the court's charge stating that the measure of damages was the value of life to Ashley to himself had he lived. It is true that a similar charge appears to have been somewhat criticized. See Reliance Ins. Co. v. Bridges, 168 Ga.App. 874, 886-887, 311 S.E.2d 193. But as in Reliance, we find no error. The court here also charged the jury, in compliance with OCGA § 51-4-1(1), that if plaintiffs were entitled to recover damages, they could recover "the full value of the life of the deceased without deduction for necessary or other personal expenses of the deceased, if that person had lived." Moreover, the court charged the jury that the measure of damages was the full value of the life of the child as found by its enlightened conscience and that the issue of damages was left "to the sound judgment, experience and conscience of the jury." Considering this charge as a whole, as we must, see, e.g., Whitehead v. Cogar, 180 Ga.App. 812, 813(1), 350 S.E.2d 821 (1986), we cannot say the trial court erred.
9. Williams's argument that the trial court erred by denying his motion to permit immediate review "as to the issues raised by the grant of the plaintiffs' motion for new trial as to damages only" is rendered moot by our holdings in Divisions 3 and 4.
Judgment affirmed.
JOHNSON, P.J., and HAROLD R. BANKE, Senior Appellate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263770/ | 233 Pa. Superior Ct. 396 (1975)
Commonwealth
v.
Donnelly, Appellant.
Superior Court of Pennsylvania.
Argued March 9, 1974.
March 31, 1975.
*400 Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN DER VOORT, and SPAETH, JJ.
Marilyn J. Gelb, for appellant.
John H. Isom, Assistant District Attorney, with him Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
*401 OPINION BY PRICE, J., March 31, 1975:
Appellant was found guilty of two counts of receiving stolen goods[1] following a jury trial from June 25 to June 29, 1973. He was sentenced on each count to concurrent terms of one to five years imprisonment. In this appeal, appellant raises many contentions of error, all of which we find without merit. We, therefore, affirm the judgment of sentence.
The facts, as found by the lower court, may be summarized as follows: Two witnesses testified to two separate burglaries that occurred in Philadelphia County in early 1971. Salvatore Mergliano testified that on January 25, 1971, his residence was burglarized and a metal box containing a number of United States Series E bonds (22 bonds of $500 denomination and one $25 bond), among other items, were taken. Jules Jazdowskis testified that his residence was burglarized on February 6, 1971, and a number of United States Series E bonds (79 bonds of $50 denomination and three $100 bonds) and jewelry were taken.
Donald Eagle testified that the appellant, William Donnelly, had contacted him by telephone in Florida in June, 1971, and offered to sell $40,000 worth of stolen United States bonds. Mr. Eagle, an informant who possessed an extensive criminal record, had known the appellant since March, 1969. After informing the appellant that he would think over the proposed transaction, Mr. Eagle immediately contacted federal authorities in Florida and reported the incident. In cooperation with federal authorities, Mr. Eagle subsequently arranged to meet the appellant in Philadelphia to arrange the transfer and sale of the stolen bonds. The first meeting was to take place on August 23, 1971.
Prior to this meeting, Mr. Eagle had arranged with federal authorities in Philadelphia to have an interconnecting *402 hotel room with Secret Service agents on the twelfth floor in the Penn Center Inn. The agents placed a hidden radio transmitter in Mr. Eagle's room in an air conditioner, and through this device the agents were able to listen to and record the conversation that took place on August 23. This device was placed in the room with Mr. Eagle's full knowledge and consent.
Mr. Eagle further testified that at this meeting appellant brought to Mr. Eagle a sample of the stolen bonds for inspection pursuant to a prior agreement. The stolen bonds were discussed by the parties for a period of one to one-and-one-half hours. During the meeting, Mr. Eagle spelled out the names on the bonds, and they included the names of Mergliano and Jazdowskis. Following this discussion, Mr. Eagle arranged a meeting for the next day for the purpose of exchanging the items and money.
Appellant returned to Mr. Eagle's room in the Penn Center Inn on August 24, 1971, to negotiate the exchange. At this one hour meeting, Mr. Eagle paid $2,500 to the appellant for 135 bonds. Appellant also agreed to send nine $500 bonds to Mr. Eagle for an additional payment of $1,000.
A Secret Service agent testified that during the meeting on August 24, 1971, the listening device implanted in Mr. Eagle's room did not function. The agent then testified that he had listened to the conversation between Mr. Eagle and appellant through the connecting but closed door. At the conclusion of the meeting, agents were dispatched to arrest appellant. The agents found two men at the twelfth floor elevator, and brought them both back to Mr. Eagle, who immediately identified appellant as the individual who had taken part in the transactions. The other man was released. Appellant was then arrested and searched by the federal agents.
*403 In appellant's pocket the agents found nine $500 bonds in the name of Salvatore Mergliano and $2,500 in marked currency previously given to Mr. Eagle by the federal agents for the transaction. In Mr. Eagle's room the agents also found 135 bonds, which were later determined to be bonds stolen from Jazdowskis, Mergliano and others. These 135 bonds were identified by Mr. Eagle as those given to him by the appellant during the transaction. Fingerprint analysis found appellant's fingerprints on an envelope containing the stolen bonds left in Mr. Eagle's room.
Appellant was indicted on two counts each of burglary, larceny and receiving stolen goods. A hearing was held on November 28, 1972, to consider appellant's motion to suppress evidence, and the motion was subsequently denied. At trial, appellant did not testify or present evidence in his defense. Subsequently, a jury returned a verdict of guilty on both indictments of receiving stolen goods. Timely motions for a new trial and in arrest of judgment were filed and denied. This appeal follows the judgment of sentence.[2]
I.
Initially, appellant contends that his arrest, the search of his person, and the search of the motel room in which the sale of the stolen United States bonds took place, were all illegal and the fruits of those actions should have been suppressed. In support of these contentions, appellant argues that the Commonwealth failed to sustain the burden of proving the legality of the arrest.
It is well established that a police officer is authorized to arrest without a warrant where he has probable cause to believe that a felony has been committed *404 and that the person to be arrested is the felon. Draper v. United States, 358 U.S. 307 (1959); United States ex rel. Gockley v. Myers, 314 F. Supp. 839 (E.D. Pa. 1970); Commonwealth v. Jackson, 450 Pa. 113, 299 A.2d 213 (1973); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. Vassiljev, 218 Pa. Superior Ct. 215, 275 A.2d 852 (1971).
Probable cause to justify a warrantless arrest exists if the facts and circumstances known to the officer at the time of the arrest would warrant a prudent man in believing that an offense has been committed, and the suspect was the perpetrator of that offense. Terry v. Ohio, 392 U.S. 1 (1968); McCray v. Illinois, 386 U.S. 300 (1967); Commonwealth v. Smith, supra; Commonwealth v. DeFleminque, 450 Pa. 163, 299 A.2d 246 (1973); Commonwealth v. Brown, 230 Pa. Superior Ct. 214, 326 A.2d 906 (1974). These facts and circumstances, however, are not those that a legal technician might desire when examining the situation in retrospect; but, rather, the practical considerations of everyday life upon which reasonable and prudent men rely. Henry v. United States, 361 U.S. 98 (1959); Draper v. United States, supra; Commonwealth v. Negri, 414 Pa. 21, 198 A.2d 595 (1964). In any event, probable cause means less evidence than that which justifies convictions. Wong Sun v. United States, 371 U.S. 471 (1963); Commonwealth v. Anderson, 224 Pa. Superior Ct. 19, 302 A.2d 504 (1973). See generally Annot., 28 L.Ed. 2d 978 (1971) (collecting cases defining probable cause); 4 Wharton's Criminal Evidence § 721 (13th ed. C. Torcia 1973).
A review of the record indicates that the Commonwealth proved that the arresting agents had ample information to believe that probable cause existed and that a crime was being committed within their hearing. The agents were privy to the two meetings between Mr. Eagle and the appellant, during which the *405 bonds were examined, described orally, transferred and sold. The agents were also aware of the pre-existing information concerning the relationship between Mr. Eagle and the appellant.[3]
Appellant's contention that the search of appellant's person is invalid fails, because we have found that the preceding arrest was legal. Where the arrest of an individual is proper, a search for contraband incident to the arrest is constitutionally valid. Draper v. United States, supra; United States v. Rabinowitz, 339 U.S. 56 (1950); Commonwealth v. Bosurgi, supra. See also United States v. Robinson, 414 U.S. 218 (1973) and Gustafson v. Florida, 414 U.S. 260 (1973), wherein it was held that the full search of the person of the *406 suspect made incident to a lawful custodial arrest did not violate the Fourth and Fourteenth Amendments.[4]
Appellant's additional contention, that the search of the motel room where the negotiations and sale of the bonds took place was illegal, is without merit for two reasons. First, by his actions, appellant clearly had intended to relinquish all rights and interests in the bonds. As a result of the sale, appellant no longer held possessory interest in the seized bonds, thereby extinguishing the right to object to the seizure of the bonds. See Alderman v. United States, 394 U.S. 165 (1969); Jones v. United States, 362 U.S. 257 (1960). See also Brown v. United States, 411 U.S. 223 (1973) (petitioners who fail to establish any possessory interest in either the challenged evidence or in the premises in which the evidence was found were without standing to attack the illegality of the search).
Secondly, Mr. Eagle consented to the search of the motel room. His possession of the room was evidenced by the registration of the room in his name; the actual expense of the room was borne by the federal authorities. Therefore, in light of Mr. Eagle's consent to the search, appellant has no legal basis upon which to complain about the search. In a case illustrative of this point, Commonwealth v. Smith, 201 Pa. Superior Ct. 511, 193 A.2d 778 (1963), the police, acting on information supplied by a reliable informant, stopped the defendant on the street and searched him for marijuana. Smith, after being taken into custody, stated that he had nothing to hide and invited the police to search his apartment. The police accepted Smith's invitation and accompanied him to his apartment. At the apartment, they identified themselves to defendant, Bass, *407 an occupant, who was incoherent. A search of the apartment revealed additional quantities of marijuana. Bass challenged the search of Smith's apartment as a violation of his constitutional rights. This court, in denying Bass' request, noted: "Here the search of Smith's apartment was made at his invitation, with his consent, and in his presence. Since immunity from unreasonable searches is personal, a defendant cannot object to the search of another's premises or property if the latter consents to the search even though evidence found is used in the prosecution of the defendant." 201 Pa. Superior Ct. at 516, 193 A.2d at 780. Cf. Commonwealth v. Hardy, 423 Pa. 208, 223 A.2d 719 (1966) (owner of premises may consent to the search of his premises, and if evidence is seized belonging to an occupant thereof, the occupant has no cause to complain); Commonwealth v. McKenna, 202 Pa. Superior Ct. 360, 195 A.2d 817 (1963).
In any event: "[i]n determining whether evidence obtained from a search consented to by one person can be used against another, the question is whether the person granting the consent had sufficient control over the premises to grant consent in his own right. The question is not whether the consenting person had the power to waive another's constitutional rights." Commonwealth v. Rhoads, 225 Pa. Superior Ct. 208, 212, 310 A.2d 406, 409 (1973). See also Commonwealth ex rel. Cabey v. Rundle, 432 Pa. 466, 248 A.2d 197 (1968) (wife consented to search of garage; evidence used in prosecution of husband).
In the instant appeal, the evidence shows that Mr. Eagle clearly had full control over the premises and had the power to consent to the search of the motel room. The resultant search did not violate appellant's rights.[5]
*408 II.
Appellant also contends that the recordation of the conversation on August 23, 1971, in which appellant and Mr. Eagle discussed the transfer and sale of the stolen bonds, violated the Omnibus Crime Control and Safe Streets Act of 1968[6] and the Fourth Amendment of the United States Constitution. As a result, appellant argues that the evidence later gathered because of this conversation should have been suppressed.
The Omnibus Crime Control and Safe Streets Act specifically exempts conversations from the warrant requirement if one party consents to the interception. The pertinent section provides in part: "(2) . . . . (c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." 18 U.S.C.A. § 2511 (2) (c) (1970).
Since Mr. Eagle was a party to the personal conversation and gave his consent to its interception, the provisions proscribing warrantless interceptions of oral communications have no application.[7] See e.g., Bakes v. *409 United States, 350 F. Supp. 547 (N.D. Ill. 1972); United States v. Riccobene, 451 F.2d 586 (3d Cir. 1971); People v. Patrick, 46 Mich. App. 678, 208 N.W. 2d 604 (1973).
The analogous statutory provisions in Pennsylvania concerning wiretapping, Act of July 16, 1957, P.L. 956, No. 411, § 1 (18 P.S. § 3742), repealed by Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, as amended (18 Pa. C.S. § 5702), prohibits the interception of a communication by telephone or telegraph, without the consent or approval of both parties to the communication. Commonwealth v. McCoy, 442 Pa. 234, 275 A.2d 28 (1971). These provisions apply only to wiretapping, and not to instances of electronic eavesdropping. Commonwealth v. Goldberg, 208 Pa. Superior Ct. 513, 224 A.2d 91 (1966). Therefore, in light of a lack of Pennsylvania statutory proscriptions, this issue is governed by the applicable portions of federal law. Cf. U.S. ex rel. Mancini v. Rundle, 337 F.2d 268 (3d Cir. 1964) (state standard must at least measure up to or include federal constitutional standards).
Appellant's further argument, that there was a violation of his personal privacy by the surreptitious recording of his conversation without the use of a warrant and by the use of the intercepted communication against the non-consenting party, has been found in the past not to be in violation of the Fourth Amendment. The starting point in determining this result is the United States Supreme Court opinion in Lopez v. United States, 373 U.S. 427 (1963). In Lopez, an internal revenue agent, in an attempt to obtain evidence of an attempted bribe, wire-recorded his conversation with Lopez by a device carried on the agent's person. In affirming the lower court, the United States Supreme Court held that the admission of transcriptions of conversations, which had been electronically seized without a warrant, were constitutionally admissible to *410 corroborate the direct testimony of the informer, who had been a party to the conversation and who had consented to the interception. This holding was bottomed on the rationale: "The Court has in the past sustained instances of `electronic eavesdropping' against constitutional challenge, when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear. See, e.g., Olmstead v. United States, 277 U.S. 438; Goldman v. United States, 316 U.S. 129. It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area. Silverman v. United States, [365 U.S. 505.] The validity of these decisions is not in question here. Indeed this case involves no `eavesdropping' whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government's own agent was a participant and which that agent was fully entitled to disclose." [Emphasis added] 373 U.S. at 438-39. Cf. Hoffa v. United States, 385 U.S. 293 (1966) (government deceptively placing a secret informer in defendant's hotel room during defendant's criminal trial does not violate the Fourth Amendment); Lewis v. United States, 385 U.S. 206 (1966) (no warrant necessary when government sends an agent to make a narcotics purchase from defendant); Commonwealth v. Brown, 437 Pa. 1, 261 A.2d 879 (1970) (Fourth Amendment does not protect a wrongdoer's misplaced belief that a person in whom he voluntarily confides his wrongdoing or evidence will not reveal it.)
In a Memorandum Opinion written by Mr. Justice HARLAN, Rosoto v. Warden, California State Prison, 83 S. Ct. 1788 (1963), it was stated that no substantial *411 federal question was presented by the admission into evidence in a state murder prosecution of electronic recordings of a conversation between an accused and his half-brother who was used by the police as a ruse. The microphone and transmission pack had been placed in the half-brother's motel room, and the receiver in an adjoining room occupied by police officers.
These cases were interpreted by the lower federal court as permitting the employment of electronic equipment on the premises or vehicle of a person cooperating with the authorities, with the consent and knowledge of such person, in order to surreptitiously record or transmit oral communications with another party. See, e.g., United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971) (device installed in motel room); United States v. Reiff, 435 F.2d 257 (7th Cir. 1970), cert. denied, 401 U.S. 938 (1971) (device installed in place of business); United States v. Edwards, 366 F.2d 853 (2d Cir. 1966), cert. denied, 386 U.S. 908 (1967) (device installed in hotel room); United States v. Dorfman, 335 F. Supp. 675 (S.D.N.Y. 1971) (device installed on premises). See also United States v. Birnbaum, 337 F.2d 490 (2d Cir. 1964) (device installed in hotel room). Contra United States v. White, 405 F.2d 838 (7th Cir. 1969) (cases cited therein).
In the most recent United States Supreme Court case in this area, United States v. White, 401 U.S. 745 (1971), the Court held that a government agent, who had a radio transmitter on his person while engaging the defendant in conversation in defendant's home and automobile, need not secure a warrant when wiring an informer for sound in order to transmit conversations with a suspect under surveillance. The plurality opinion written by Mr. Justice WHITE, while relying on Hoffa v. United States, supra, and On Lee v. United States, 343 U.S. 747 (1952), noted: "Concededly a police agent who conceals his police connections may *412 write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. Hoffa v. United States, 385 U.S. at 300-303. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks." 401 U.S. at 751. See Comment, 47 Notre Dame Lawyer 172 (1971).
Since White, the lower federal courts have uniformly held that it is not a violation of a defendant's Fourth Amendment right if an informer relays the contents of his conversation with the defendant to government agents or allows agents to tape record or otherwise monitor the conversation. See, e.g., United States v. Fanning, 477 F.2d 45 (5th Cir.), cert. denied, 414 U.S. 1006 (1973) (device installed in business office); United States v. Bishton, 463 F.2d 887 (D.C. Cir. 1972) (device installed on agent's person); United States v. Warren, 453 F.2d 738 (2d Cir.), cert. denied, 406 U.S. 944 (1972) (device installed on telephone). See also Annot., 17 L. Ed. 2d 1008 (1967) (collecting cases concerning the Fourth Amendment and the use of recording or eavesdropping *413 devices to obtain evidence); American Bar Association Project on Standards for Criminal Justice, Standards Relating to Electronic Surveillance § 4.1 (Tent. Draft 1968) ("The use of electronic surveillance techniques by law enforcement officers for the overhearing or recording of a wire or oral communications with the consent of one of the parties should be permitted").
We, therefore, find that the introduction of evidence of the recorded conversations between appellant and Eagle does not violate any federal or Pennsylvania statutory proscriptions or violate appellant's Fourth Amendment rights.
III.
The appellant alleges that the trial judge erred in charging the jury that possession of recently stolen goods gives rise to an inference of guilt of burglary, larceny and receiving stolen goods. He contends that, despite the fact appellant was acquitted of burglary and larceny, the charge as a whole confused the jury as to the proper inference to be drawn from possession of stolen goods. After examination of the trial judge's charge, we find this contention to be without merit.
The trial judge, in his charge, stated: "Under the law, the possession of recently stolen property raises an inference that the possessor was the thief, but it does not raise a legal presumption of guilt, and no burden shifts to the defendant to account for his possession at his peril. The burden of proof always remains on the Commonwealth, and it is for you, the jury alone, to say whether or not the guilt of the defendant here is a reasonable inference of fact. Fairly deductible from his possession of the property in the light of all the evidence as to how he came into possession. You may, if you conclude, that the defendant was in possession of recently stolen property, consider this fact as some inference of guilt.
"The Commonwealth is not denied the weight of the inference, merely because only a part of the allegedly stolen *414 property was found in the possession of the defendant.
"If several articles are stolen, a conviction may be had as to any of the articles, if shown to have been feloniously taken by the defendant. In consequence, if you believe that the defendant had possession of one or more of the recently stolen articles, and if there is no satisfactory reason appearing why he had such possession, then you may consider such possession as some evidence that the possessor was the thief.
"You will note, however, that the possession must be recent. The law does not declare what this period is. And the period depends upon the character of the property and the circumstances of the whole case. Yours is the task of determining whether the possession was recent, subsequent to the taking, as to give rise to the inference of guilt which we have just discussed. This would apply to the larceny and to the burglary, and it would also apply to the charge of receiving stolen property. And in that case, the inference would be that the possessor had feloniously or illegally received the property, and not in that case that he had taken it, but only that he had feloniously or illegally received it, and that he knew that or should have known that it was taken.
"Ladies and gentlemen of the jury, the Supreme Court of Pennsylvania has established the following criteria or standards in determining whether or not the inference is a reasonable one. One: The lapse of time and the discovery of the property. Two: The type and kind of property. Three: The amount and volume of the property. Four: The case with which it may be assimilated into trade channels." [Emphasis added] [NT 396-98]
We find that the trial judge's charge concerning burglary and larceny, crimes for which the appellant was acquitted, did not confuse the jury as to the proper inference to be drawn from the recent possession of stolen goods and the crime of receiving stolen goods. The necessary inference in this case is that the appellant received *415 the stolen goods knowingly.[8] The knowledge that the goods were stolen does not have to be actual knowledge if the circumstances are such as would lead the appellant to have reasonable cause to know the goods were stolen. Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973); Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). It is also necessary to show more than mere possession to establish the inference that appellant knew or had reason to know that the property he possessed was stolen. All circumstances surrounding the possession must be weighed in order to surmise if there is sufficient evidence to support the finding of guilt. Commonwealth v. Henderson, supra; Commonwealth v. Shaffer, supra; Commonwealth v. Owens, 441 Pa. 318, 271 A.2d 230 (1970). But see Commonwealth v. Allen, 227 Pa. Superior Ct. 157, 324 A.2d 437 (1974).
The trial judge properly charged the jury to consider the inference in light of all the evidence, and specifically enumerated the series of factors which the jury should consider in determining whether or not to apply the inference. The trial judge's charge as to the crime of receiving stolen goods fairly and reasonably permitted the jury to draw the proper inference and find appellant guilty of receiving stolen goods.
IV.
Appellant raises two allegations of error concerning the testimony of certain witnesses during the trial. First, appellant argues that the lower court erred in refusing to instruct the jury that, because Mr. Eagle was an informer, his testimony must be examined closely. Appellant *416 further asserts that the factual situation in this case necessitates careful instructions calculated to call attention to the character of the testimony of the informer.
The question of the credibility of Mr. Eagle's testimony is a matter for the jury. Cf. Commonwealth v. Balles, 160 Pa. Superior Ct. 148, 50 A.2d 729 (1947). The jury is guided by cautionary instructions because of the serious questions of credibility inherent in those cases where the prosecution employs the use of an informer's testimony. See On Lee v. United States, 343 U.S. 747 (1952). Specifically, special cautionary instructions have been used where the incriminating testimony is uncorroborated or unsubstantiated, or in those situations where the informer provides evidence for pay or for immunity from punishment or for personal advantage or vindication. See, e.g., United States v. Holmes, 453 F.2d 950 (10th Cir.), cert. denied, 406 U.S. 908 (1972) (corroborated co-conspirator's testimony); Lujan v. United States, 348 F.2d 156 (10th Cir.), cert. denied, 382 U.S. 889 (1965) (collaborated testimony of paid informer); Todd v. United States, 345 F.2d 299 (10th Cir. 1965) (collaborated informer's testimony). See also 23A C.J.S. Criminal Law § 1175 (1961).
In this appeal, we find no error in the failure of the lower court to give cautionary instructions concerning the character of Mr. Eagle's testimony. The record indicates that Mr. Eagle was not paid by government authorities to inform upon his dealings with the appellant. The record also fails to reveal evidence indicating that Mr. Eagle harbored vindictive motives or was requesting from the government officials immunity from punishment. Rather, the record indicates that Mr. Eagle, a parolee, was attempting to avoid a violation and possible subsequent revocation of his parole by reporting his contacts with the appellant. In addition, Mr. Eagle's testimony was firmly corroborated by both the physical evidence of the government agent and the tapes that were *417 recorded and played at trial. Thus, the lower court properly reasoned that the factual setting in this case did not require special cautionary instructions concerning Mr. Eagle's informant status. The court did, however, recognize that Mr. Eagle's prior felony convictions could bear on his credibility as a witness, and proceeded to properly instruct the jury as to the care required in weighing the credibility of a convicted felon.[9]
The second alleged error raised by appellant questions the trial judge's refusal to permit appellant to cross-examine the government agent concerning the circumstances surrounding the arrest. On cross-examination, appellant asked the agent: "Q [Appellant's counsel] . . . For what crime or crimes did you make this arrest? A [Agent Ryan] I arrested Mr. Donnelly for conspiracy to forge and utter United States Savings Bonds. Q And with whom was he conspiring? MR. CANUSO [Assistant District Attorney] Objection, Your Honor. THE COURT: Objection sustained." Following a side-bar discussion, all subsequent questions concerning the arrest of appellant by federal authorities were refused by the trial judge on the grounds that the proposed questions related to matters of only tangential relevance to the issues being litigated.
The scope of cross-examination is largely within the sound discretion of the trial judge, and even if a ruling is erroneous, the error is not grounds for reversal unless it results in apparent injury. Commonwealth v. Marine, 213 Pa. Superior Ct. 88, 245 A.2d 868 (1968); Commonwealth *418 v. Dunn, 212 Pa. Superior Ct. 384, 243 A.2d 476 (1968); Commonwealth v. Cano, 182 Pa. Superior Ct. 524, 128 A.2d 358 (1956). We find no abuse of discretion by the trial judge in his refusal to permit further cross-examination of the government agent concerning appellant's arrest. Despite the fact that the questions posed by appellant may have had some minimal relevance in testing the credibility of the government agent, the trial judge properly decided that the probative value of those questions was so limited as to not warrant the expenditure of time.
V.
Appellant contends that it was improper for the judge to impose separate sentences on the two convictions for receiving stolen goods because the Commonwealth merely proved one possession and thus only one crime. However, the record indicates that two different sets (each set of bonds were stolen from different persons, on different dates at different places) of stolen bonds were found in the possession of appellant when he was arrested and accordingly he could be indicted separately for each set. See Commonwealth v. Cohan, 177 Pa. Superior Ct. 532, 111 A.2d 182 (1955). Moreover, appellant made no objection at the time of the rendering of the verdict as to this claim, thus precluding our consideration of this allegation of error. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975).
Finally, appellant argues that his sentence of imprisonment for receiving stolen goods is unconstitutional on the grounds that the statutory sentencing provision for men and women authorize different treatment, resulting in a denial of equal protection of the laws under the Fourteenth Amendment. This precise issue was decided in Commonwealth v. Butler, 458 Pa. 289, 331 A.2d 678 (1974), where that portion of the sentencing *419 act directing that no minimum sentence be imposed on women was declared unconstitutional, and left unaffected the sentencing provisions for males. Therefore, appellant's sentence is not affected by the scope of the Butler decision.
Judgment of sentence affirmed.
JACOBS and HOFFMAN, JJ., concur in the result.
NOTES
[1] Act of June 24, 1939, P.L. 872, § 817; May 21, 1943, P.L. 306, § 1 (18 P.S. § 4817).
[2] Jurisdiction granted by Act of July 31, 1970, P.L. 673, No. 223, art. III, § 302 (17 P.S. § 211.302).
[3] Appellant also argues that the record of the suppression hearing does not include testimony by the arresting government agents concerning the crime for which appellant was arrested, resulting in the failure by the Commonwealth to show that the arrest and search by the federal authorities were legal. In addition, appellant contends that because the federal authorities arrested appellant for a crime other than those charged in the state court, the evidence gathered by the federal authorities may not be used in a state court. This argument, however, ignores the fact that the standard for probable cause is not the actual mental state of the arresting officer, but rather whether the officer had sufficient reliable information to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Commonwealth v. Negri, 414 Pa. 21, 198 A.2d 595 (1964). Thus, the standard is an objective one and is not dependent upon the subjective intent of the specific officer. Draper v. United States, 358 U.S. 307 (1959). Where probable cause exists, the governmental intrusion is justifiable regardless of whether the federal officer can enunciate the specific elements of the suspected state crime. Further, at trial the arresting agent testified that he investigated the case with a view to charging appellant in federal court with conspiracy to forge and utter United States Savings Bonds. See 18 U.S.C.A. § 472 (1966). The appellant was not indicted for this federal crime because mere possession of stolen federal bonds is not a federal offense. Appellant's Brief at Appendix A.
[4] Because we find that the arrest and the search incident to the arrest were legal, the "silver platter doctrine," Elkins v. United States, 364 U.S. 206 (1960), does not apply.
[5] Appellant also argues that he is faced with the Hobson's choice of either admitting the possession of contraband to establish standing to attack the validity of his search or forego the constitutional claim. Jones v. United States, 362 U.S. 257 (1960). However, in this appeal, appellant has relinquished through voluntary sale his right, interest and possession in the contraband. In addition, a prosecutor may not use at the defendant's trial any testimony given by the defendant at a pre-trial hearing to establish standing to move to suppress evidence. Simmons v. United States, 390 U.S. 377 (1968). See also Brown v. United States, 411 U.S. 223 (1973).
[6] 18 U.S.C.A. § 2510 et seq., as amended (1970).
[7] Appellant's subsidiary argument, that crimes for which appellant was arrested and charged in the state court were not enumerated in 18 U.S.C.A. § 2516 (1970), and, therefore, are not a proper focus of electronic eavesdropping, of course fails because we find this electronic eavesdropping outside the purview of the provisions of 18 U.S.C.A. § 2510 et seq., as amended (1970).
[8] To prove the crime of receiving stolen goods it is also necessary to show that the goods were stolen and that defendant received the goods. See Act of June 24, 1939, P.L. 872, § 817; Act of May 21, 1943, P.L. 306, § 1 (18 P.S. § 4817). The evidence presented by the Commonwealth clearly showed that the bonds in question had been stolen and that the appellant had received the bonds.
[9] The lower court's instructions as to Mr. Eagle's testimony were as follows: "With respect to Donald Eagle's testimony, you heard him testify that he has been convicted of a number of felonies. You can, and may consider his testimony in your determination of whether or not he is a credible and believable witness. You may determine if his testimony is such as falsely to implicate the defendant. The criminal record itself does not make him an unbelievable witness. In evaluating his credibility, you may take these factors into consideration." [NT 404] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263774/ | 239 P.3d 195 (2010)
2010 OK CIV APP 68
Jeanne FRENCH, Plaintiff/Appellant,
v.
STATE of Oklahoma ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS and Oklahoma Merit Protection Commission, Defendants/Appellees.
No. 106,210. 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.
June 10, 2010.
*196 Daniel J. Gamino, Daniel J. Gamino & Associates, P.C., Oklahoma City, OK, for Plaintiff/Appellant.
Gary L. Elliott, Department of Corrections, Oklahoma City, OK, for Defendant/Appellee Oklahoma Department of Corrections.
JOHN F. FISCHER, Presiding Judge.
¶ 1 Petitioner/Appellant Jeanne French appeals a decision of the district court of Coal County. The district court dismissed French's petition seeking judicial review of a Merit Protection Commission (MPC) decision on the grounds that the district court lacked jurisdiction to hear her appeal, pursuant to 75 O.S.2001 § 318. The decision of the district court is affirmed.
BACKGROUND
¶ 2 French was a classified employee of the Department of Corrections (DOC). On May 25, 2007, after an investigation of allegations that she mailed prohibited items to an inmate at the Oklahoma State Penitentiary, French received a notice informing her that she had been discharged from her employment. French consulted counsel, who, on June 12, 2007, mailed a petition for appeal of her dismissal to the MPC, pursuant to 74 O.S. Supp.2005 § 840-6.5(C). The record indicates that French's counsel did not attach sufficient postage to the petition, and it was not delivered to the MPC. The petition was eventually returned to French's counsel, after the 20-day statutory period for French to file her appeal had expired. French's counsel wrote to the MPC requesting a waiver allowing French to file an appeal out of time, but did not receive a favorable response. The record reflects that, in November 2007, French's counsel returned her retainer and informed her there was nothing further he could do. French then engaged her current counsel.
¶ 3 On January 18, 2008, French filed her appeal with the MPC, and an "emergency application to extend filing date." French argued that the MPC Executive Director had discretion to extend the 20-day filing period, and further argued that her petition was deemed filed on June 12, 2007, pursuant to the "mailbox rule" of 12 O.S. Supp.2002 § 990A(B).
¶ 4 On February 1, 2008, an MPC analyst issued an investigative report recommending dismissal of French's petition on jurisdictional grounds, because her petition was filed 238 days after receiving notice of termination. French responded to the investigative report, repeating her previous arguments of executive discretion and effective filing. On February 29, the Executive Director ordered *197 dismissal of French's appeal, finding that: (1) it was not received by the MPC within 20 days of notice of termination; (2) the 20-day requirement was mandatory and could not be extended; and (3) the mailbox rule did not apply to petitions returned for insufficient postage.
¶ 5 On March 7, 2008, French filed a petition for "reopening, re-hearing or reconsideration" with the MPC, repeating her prior arguments. On April 4, 2008, the MPC, sitting en banc, issued a "final petition decision" denying French's petition for reconsideration. On April 30, 2008, French filed a petition pursuant to 75 O.S.2001 § 318 in the district court seeking judicial review of the decisions rendered by the Executive Director and MPC. DOC filed a motion to dismiss arguing that, because judicial review pursuant to section 318 is limited to the review of "individual proceedings" and because French's petition had been dismissed, there had been no individual proceeding in French's case. The district court dismissed French's petition finding that it lacked jurisdiction.
STANDARD OF REVIEW
¶ 6 The granting of a motion to dismiss presents an issue of law requiring de novo review, that is, a plenary, independent, and non-deferential re-examination of the trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125 n. 1, 932 P.2d 1100, 1103 n. 1. Here, the issue raised in DOC's motion to dismiss was whether the district court had jurisdiction to hear French's appeal. This issue presents a question of law, which we also review de novo. Klopfenstein v. Oklahoma Dept. of Human Serv., 2008 OK CIV APP 16, ¶ 8, 177 P.3d 594, 596, citing Jackson v. Jackson, 2002 OK 25, ¶ 2, 45 P.3d 418.
ANALYSIS
¶ 7 French was employed by the DOC in the "classified service," 74 O.S. Supp.2002 § 840-5.11(A), and she was, therefore, subject to the jurisdiction of the Oklahoma Merit System of Personnel Administration. 74 O.S. Supp.2002 § 840-1.3(6). A State agency may discharge a classified employee for "misconduct, insubordination, inefficiency ... or any other just cause." 74 O.S. Supp.2005 § 840-6.5(C). An employee may appeal the agency's decision to the MPC. Id. Section 840-6.5(C) provides, in part, that:
Within twenty (20) calendar days after receiving the written notification provided for in this section, the employee may file a written request for appeal with the Oklahoma Merit Protection Commission. The Executive Director shall determine if the jurisdictional requirements provided for in this section have been met. If the jurisdictional requirements are not met, the Executive Director shall notify both the employee and the agency within five (5) calendar days after the receipt of a written appeal request. Such notice shall specifically describe the requirements that were not met....
The dispositive facts in this case are not disputed. French's petition was placed in a mailbox within twenty calendar days of her receipt of notice of termination, but was not physically received by the MPC until 238 days after such notice.
I. The DOC's Motion to Dismiss
¶ 8 The Administrative Procedures Act (APA), 75 O.S.2001 §§ 250-327, authorizes judicial review of MPC decisions made pursuant to section 840-6.5(C).
A. 1. Any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 323 of this title.
75 O.S.2001 § 318. The DOC based its jurisdictional argument on its contention that no "individual proceeding" was conducted in French's case. The APA defines an individual proceeding as "the formal process employed by an agency having jurisdiction by law to resolve issues of law or fact between parties and which results in the exercise of discretion of a judicial nature." 75 O.S.2001 § 250.3(7). See also State ex rel. Dep't of Transp. v. Little, 2004 OK 74, n. 23, 100 P.3d 707, 714 n. 23; Cherokee Data Computer Parts and Serv., Inc. v. Oklahoma Dep't of *198 Labor, 2005 OK CIV APP 81, ¶ 9, 122 P.3d 56, 59.
¶ 9 The DOC relies on Stewart v. Rood, 1990 OK 69, ¶ 12, 796 P.2d 321, 327, arguing that a proceeding only becomes "individualized" after trial-type proceedings identified in sections 309-317 of the APA have occurred.
We believe the process referred to in the definition for individual proceeding in the [APA] is spelled out at §§ 309-317 of that Act and these sections, by their terms, afford opportunity for a trial-type proceeding.
....
In that § 318 only allows judicial review of final orders (including permits) in an individual proceeding we believe the Legislature intended such judicial review under the [APA] only when an opportunity is afforded for the trial-type proceedings spelled out in the [APA].
Id. at ¶ 17, 796 P.2d at 328. Stewart held that, because the procedures of sections 309-317 were not required when the Department of Health decided to issue or deny a solid waste facility permit, the resulting permit decision did not result from an individual proceeding.[1] Other cases draw the same distinctiona proceeding is "individual" if the subject matter entitles the participants to the procedures specified in sections 309-317.[2]
¶ 10 The DOC's focus on whether the section 309 and 310 procedures occur in any given case is misplaced. The status of "individual proceeding" results if the subject matter of the proceeding grants a right to the section 309-317 procedures. It is not dependent on how many of those procedures are actually utilized. French's case was an "adverse action appeal" filed pursuant to Oklahoma Administrative Code tit. 455, ch. 10, § 3-1.1(OAC). Such proceedings are subject to the procedures identified in sections 309-317, and "individual" for the purposes of judicial review pursuant to section 318.[3] Consequently, the MPC's refusal to hear French's appeal meets the statutory definition of an individual proceeding, and the district court had jurisdiction to hear French's petition for judicial review. The DOC's motion to dismiss on jurisdictional grounds should have been denied.
II. French's Petition for Review
¶ 11 Although the district court apparently dismissed French's petition based on the DOC's jurisdictional argument, dismissal in the district court would still be warranted if the MPC correctly found it lacked jurisdiction to decide the merits of French's appeal.
A. The Mailbox Rule
¶ 12 French argues, citing 12 O.S. Supp.2002 § 990A(B)[4], that the MPC had jurisdiction to consider the merits of her claim because her petition was placed in the mail before the 20-day filing period stated in section 840-6.5(C) expired, and was deemed filed on the date of mailing pursuant to the "mailbox rule." Horvat v. State ex rel. Dep't of Corrections, 2004 OK CIV APP 59, ¶ 14, *199 95 P.3d 190, 193 (approved for publication by the Oklahoma Supreme Court), holds that the section 990A mailbox rule applies to appeals to the MPC. However, Eagle Life Insurance Company, Inc. v. Rush, 1992 OK 78, ¶ 4, 832 P.2d 1224, 1224, found that the section 990A(B) requirement of "mailing by certified or first-class mail, postage prepaid" extends the benefit of the mailbox rule only to petitions mailed with sufficient postage. Because French's petition was not mailed with sufficient postage, she cannot rely on section 990A(B).[5]
B. Discretion of the Executive Director
¶ 13 French further argues that the Executive Director has discretion to extend the 20-day filing deadline stated in 74 O.S. Supp. 2005 § 840-6.5(C). French relies on OAC tit. 455, ch. 10, §§ 3-2(a) and 3-1.1(1) to support this contention. However, neither section of the OAC provides that discretion.
1. Section 3-1.1(1)
¶ 14 Although section 3-1.1(1) of the OAC states that the Executive Director may extend the 20-day filing deadline "for other good cause shown," section 3-1.1(1) applies only to "alleged violation appeals." An alleged violation appeal involves:
promotional issues, pay movement mechanisms or compensation issues, discipline issues (except discharge, suspension without pay and involuntary demotion), leave issues and the employee service rating system issues.... (Emphasis added).
OAC tit. 455, ch. 10, § 3-3. This definition of an alleged violation appeal specifically excludes discharge, the reason for French's termination. An appeal of a decision to "discharge, suspend without pay or involuntary demote" an employee is an "adverse action appeal" as defined in section 3-1.1(2). Consequently, section 3-1.1(2), not section 3-1.1(1), governs French's appeal. Section 3-1.1(2) provides that adverse action appeals "shall be filed within 20 calendar days after receipt of the written notice of the action...." Contrary to the discretion allowed by section 3-1.1(1), the section applicable to French's appeal provides "[t]his is a statutory time limit and may not be extended."[6]
2. Section 3-2(a)
¶ 15 French next argues that section 3-2(a) grants the Executive Director discretion to determine that an appeal meets the MPC jurisdictional requirements provided it was filed less than one year after the triggering event. Section 3-2(a) states:
It is solely the authority of the Commissioners and Executive Director to determine whether or not matters being appealed are subject to the jurisdiction of the Commission. No request for appeal shall be accepted more than 12 months after the event causing the appeal, unless otherwise provided for by any statute.
French argues that the Executive Director retains this discretion even if the appeal is an "adverse action appeal" subject to the 20-day filing deadline of section 3-1.1(2). The MPC rejected French's interpretation of section 3-2(a).
*200 ¶ 16 An agency's interpretation of its rules is controlling unless the interpretation is plainly erroneous, in conflict with constitutional or statutory law, or extends the agency's power beyond that granted by the enabling statute. Estes v. ConocoPhillips Co., 2008 OK 21, ¶ 12, 184 P.3d 518, 524; Heiman v. Atlantic Richfield Co., 1995 OK 19, n. 2, 891 P.2d 1252, 1256 n. 2.
¶ 17 Further, although we deal here with provisions of the Administrative Code, "administrative rules are valid expressions of lawmaking powers having the force and effect of law." Estes at ¶ 10, 184 P.3d at 523. Two principles of statutory construction support the MPC's interpretation of section 3-2(a). First:
The determination of legislative intent controls statutory interpretation. The intent is ascertained from the whole act based on its general purpose and objective. In construing statutes, relevant provisions must be considered together whenever possible to give full force and effect to each.
Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶ 5, 901 P.2d 800, 803 (citations omitted). Second, "[T]he general rule is that nothing may be read into a statute which was not within the manifest intention of the legislature as gathered from the language of the act." Stemmons, Inc. v. Universal C.I.T. Credit Corp., 1956 OK 221, ¶ 19, 301 P.2d 212, 216. Section 3-1.1(2) cannot be given full force and effect if the discretion granted in section 3-2(a) is imposed on the time limit required by section 3-1-1(2). Further, to interpret section 3-2(a) as authorizing the Executive Director to extend the time limit specified in section 3-1.1(2) would read into that statute language the Legislature did not see fit to include. This we will not do. Section 3-2(a) does not grant the Executive Director discretion to extend the 20-day filing requirement specified in section 3-1.1(2) for adverse action appeals.
CONCLUSION
¶ 18 The MPC's decision to dismiss French's appeal for lack of jurisdiction because her petition for review was not timely filed was made in an individual proceeding as defined by 75 O.S.2001 § 250.3(7). Consequently, that decision was subject to review by the district court pursuant to 75 O.S.2001 § 318. However, the district court's refusal to review the MPC decision does not constitute reversible error. "It is well settled that a correct judgment will not be disturbed on review, even when the trial court applied an incorrect theory or reasoning in arriving at its conclusion; an unsuccessful party cannot complain of trial court's error when it would not have been entitled to succeed anyway." Harvey v. City of Oklahoma City, 2005 OK 20, ¶ 12, 111 P.3d 239, 243. The MPC was correct in its determination that it had no jurisdiction to consider the merits of French's adverse action appeal, because it was filed outside the 20-day statutory period. Therefore, the district court did not err in dismissing French's Petition for Review, and that Order is affirmed.
¶ 19 AFFIRMED.
WISEMAN, C.J., and BARNES, J., concur.
NOTES
[1] The specific holding in Stewart is no longer controlling because subsequent statutory changes created a right to an individual proceeding in those circumstances. See DuLaney v. Oklahoma State Dep't of Health, 1993 OK 113, ¶ 12, 868 P.2d 676, 682.
[2] See Bird v. Willis, 1996 OK 116, ¶ 14, 927 P.2d 547, 550-51 (holding that because citizens protesting the award of a liquor license are not entitled by statute to an individual proceeding under the OAPA, they are not entitled to judicial review of the ABLE Commission's actions in granting the license pursuant to section 318); Sharp v. 251st Street Landfill, Inc., 1991 OK 41, ¶ 6, 810 P.2d 1270, 1273 (holding that judicial review under section 318 is available when the Legislature intended individual proceedings to be conducted in a given decision).
[3] This conclusion is consistent with our holding in Simington v. Oklahoma Dept. of Rehab. Serv., No. 106,820 (Okla.Civ.App., filed June 10, 2010).
[4] "The filing of the petition in error may be accomplished either by delivery or mailing by certified or first-class mail, postage prepaid, to the Clerk of the Supreme Court. The date of filing or the date of mailing, as shown by the postmark affixed by the post office or other proof from the post office of the date of mailing, shall constitute the date of filing of the petition in error. If there is no proof from the post office of the date of mailing, the date of receipt by the Clerk of the Supreme Court shall constitute the date of filing of the petition in error."
[5] The MPC has its own administrative rule stating that a petition is considered filed either on the day it is postmarked, or the day it is delivered. OAC tit. 455, ch.10, § 3-2(b). However, this rule was not in force at the time French's petition was mailed. Further, the postmark on French's petition is dated July 2, 2007, approximately fifteen days after the deadline for French to file her MPC appeal. Therefore, even if applied retroactively, this rule does not save French's petition.
[6] The code section states as follows:
455:10-3-1.1. Time
Time is jurisdictional.
(1) Alleged violation appeal. Unless otherwise provided for by statute or the rules in this chapter, an alleged violation appeal shall be filed within 20 calendar days after the alleged violation occurs. The Executive Director may extend this time limit if the appellant demonstrates that he or she filed within 20 calendar days after becoming aware of, or with due diligence, should have become aware of the alleged violation, or for other good cause shown. For information on filing an appeal after a formal grievance see OAC 455:10-19-46.
(2) Adverse action appeal. An appeal of a permanent classified employee appealing a discharge, suspension without pay or involuntary demotion shall be filed within 20 calendar days after receipt of the written notice of the action imposed, by certified mail or personal service. This is a statutory time limit and may not be extended. [74:840-6.5(C) ]. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263780/ | 238 P.3d 1016 (2010)
237 Or. App. 149
FRIENDS OF YAMHILL COUNTY, INC., an Oregon non-profit corporation, Petitioner-Appellant,
v.
BOARD OF COMMISSIONERS OF YAMHILL COUNTY, an Oregon municipal corporation; and Gordon Cook, individual resident of the State of Oregon and Yamhill County, Respondents-Respondents.
CV080305; A140899.
Court of Appeals of Oregon.
Argued and Submitted January 7, 2010.
Decided September 1, 2010.
*1017 Ralph O. Bloemers argued the cause and filed the opening brief for appellant. With him on the reply brief was Crag Law Center.
Charles F. Hudson, Portland, argued the cause for respondent Gordon Cook. With him on the brief was Lane Powell, PC.
*1018 John M. Gray, Jr., waived appearance for respondent Board of Commissioners of Yamhill County.
Before WOLLHEIM, Presiding Judge, and SERCOMBE, Judge, and DEITS, Senior Judge.
SERCOMBE, J.
This case concerns whether the circuit court applied correct legal standards in its review of a county determination that claimant had vested rights to continue development of a subdivision. The county decision under review recognized claimant's prior efforts to obtain subdivision approval and construct related improvements as sufficient to vest claimant's right to construct nine additional houses on the property. That vesting determination qualified the property as subject to special zoning allowances under a law recently adopted by the voters. Petitioner Friends of Yamhill County (Friends) contends that the reviewing court erred in upholding the county's vested rights decision because there was insufficient evidence in the local government administrative record to establish vested rights under the applicable legal standards. We conclude that the reviewing court erred in applying the applicable law in its review of the county decision and that the court should have remanded, rather than sustained, the county approval. Accordingly, we reverse and remand this case for further proceedings.
The case arises in the context of an original law and its replacement, both adopted by the voters, that provide remedies to property owners whose property values are adversely affected by land use regulations. The original law, Measure 37, was adopted through the initiative process in the 2004 general election, Or. Laws 2005, ch. 1, and codified at ORS 197.352 (2005). The law was subsequently amended, Or. Laws 2007, ch. 424, § 4, and, in 2007, it was renumbered as ORS 195.305. Measure 37 required state and local governments to provide "just compensation" to a property owner when a governmental entity enacted or enforced a post-acquisition land use regulation that restricted the use of the property in ways that reduced its fair market value. Former ORS 197.352(1); see generally MacPherson v. DAS, 340 Or. 117, 130 P.3d 308 (2006) (explaining operation of Measure 37). Under the measure, that regulatory effect allowed an affected property owner to demand just compensation from the government. If a claimant qualified for relief, the governmental entity could respond in one of two ways: either by paying the claimant the amount of the reduction of the property's value, former ORS 197.352(2), or by deciding to "modify, remove, or not to apply the land use regulation * * * to allow the owner to use the property for a use permitted at the time the owner acquired the property," former ORS 197.352(8). In the subsequent adjudication of Measure 37 claims, the option to exempt property from otherwise applicable regulations and allow a specified use became known as a "Measure 37 waiver."
Following the adoption of Measure 37, compensation claims were filed at the state and local government levels, seeking to avoid the restrictions on land use by the combined effect of state regulations and local zoning laws, such as restrictions on development on rural land zoned for agricultural and forestry uses. The potential disruptive effect of that development, together with a lack of clarity in Measure 37's provisions, led to calls for a revision of the measure. See Official Voters' Pamphlet, Special Election, Nov 6, 2007, 20 (Legislative Argument in Support of Measure 49).
The 2007 Legislative Assembly referred to the voters a substitute statute, Measure 49, that narrowed the effect of Measure 37, including a reduction in the degree of residential development allowed under a requested Measure 37 waiver. Or. Laws 2007, ch. 424; see generally Corey v. DLCD, 344 Or. 457, 184 P.3d 1109 (2008) (describing the purpose and effect of Measure 49). The measure was adopted by the voters in a special election held on November 6, 2007, and became effective on December 6, 2007. Or. Const., Art. IV, § 1(4)(d) (time of effect of initiated or referred measures).
Measure 49 redefines the adjudicatory processes, standards, and allowed relief for two classes of Measure 37 claims: those filed on *1019 or before June 28, 2007 (the concluding day of the 2007 legislative session) and those filed thereafter. As to the former class of claims, section 5 of the measure provides:
"A claimant that filed a claim under ORS 197.352 on or before the date of adjournment sine die of the 2007 regular session of the Seventy-fourth Legislative Assembly [June 28, 2007] is entitled to just compensation as provided in:
"(1) Sections 6 or 7 of this 2007 Act, at the claimant's election, if the property described in the claim is located entirely outside any urban growth boundary and entirely outside the boundaries of any city;[[1]]
"(2) Section 9 of this 2007 Act if the property described in the claim is located, in whole or in part, within an urban growth boundary;[[2]] or
"(3) A waiver issued before the effective date of this 2007 Act [December 6, 2007] to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right on the effective date of this 2007 Act to complete and continue the use described in the waiver."
The questions in this case largely concern the meaning and application of section 5(3) of Measure 49.[3] We state the facts from the uncontested findings of the county's vesting officer adopted after an administrative hearing. Claimant owns a 38.8-acre parcel in rural Yamhill County that is zoned AF-80 (Agriculture Forestry), zoning that restricts residential development of the land and that was apparently imposed after claimant acquired the property on December 3, 1970. The property is improved with a residence. Claimant sought and obtained Measure 37 waivers from the state and county to divide the property and construct additional homes on the lots created by the land division. Yamhill County Board Order 06-691, issued on September 27, 2006, authorized claimant
"to make application to divide the subject property into ten lots and, upon the Planning Director's issuance of land division approval, to make applications to establish dwellings on undeveloped lots under land use regulations then in effect on December 3, 1970."
Analogously, the state waiver, Final Order Claim No. M129384, issued November 17, 2006, provided:
"1. In lieu of compensation under ORS 197.352, the State of Oregon will not apply the following laws to Gordon Cook's division of the 38.8-acre subject property into nine 2.69-acre parcels and one 12.4-acre parcel or to his development of a dwelling on each 2.69-acre parcel: applicable provision of Goals 3 and 4, ORS 215 and OAR 660, divisions 6 and 33. These land use regulations will not apply to the claimant only to the extent necessary to allow him to use the subject property for the use described in this report, and only to the extent that use was permitted when he acquired the property on December 3, 1970.
"2. The action by the State of Oregon provides the state's authorization to the claimant to use the property for the use described in this report, subject to the standards in effect on December 3, 1970."
Based on those waivers, the county granted approval of a preliminary subdivision plat for division of the property into nine 2.69-acre lots and one 12.4-acre lot on May 11, 2007. Claimant incurred legal, surveying, and engineering expenses to obtain the waivers and preliminary subdivision approval. He then provided labor and expended money to grade the property, construct some of the roads in the proposed subdivision, arrange for the construction of electrical service distribution lines to serve the property, and *1020 widen the adjacent county road. The vesting officer found that claimant spent money, incurred obligations, and contributed labor by December 6, 2007, that had a value exceeding $155,000. Claimant entered into an agreement with the county for future road development. Those efforts satisfied the conditions of preliminary subdivision approval, and the final plat was approved and then recorded on December 5, 2007.
After Measure 49 went into effect, claimant opted to seek county certification of his vested rights to develop the property under section 5(3) of Measure 49, rather than apply for the residences allowed under section 5(1). The county had adopted an ordinance establishing a process for review and determination of vested rights claims under Measure 49 by an appointed vesting officer. Measure 49 Vested Rights Ordinance. Claimant applied for relief under that ordinance. Claimant sought to vest the same number of dwellings that had been allowed under the waiver. The vesting officer determined that the homesite use was a lawful use under section 5(3) of Measure 49 because the claimant had a common-law vested right as of December 6, 2007, to complete and continue the use of his property as a subdivision of developable lots.[4]
Friends, which had participated in the vesting adjudication by the county vesting officer, sought review under section 16 of Measure 49, now codified at ORS 195.318. ORS 195.318(1) provides, in part, that a
"person that is adversely affected by a final determination of a public entity under ORS 195.310 to 195.314[, statutes providing for prospective compensation claims,] or sections 5 to 11, chapter 424, Oregon Laws 2007, * * * may obtain judicial review of that determination under ORS 34.010 to 34.100, if the determination is made by * * * a county."
ORS 195.318(3) further provides:
"Notwithstanding subsection (1) of this section, judicial review of a final determination under ORS 195.305 or 195.310 to 195.314 or sections 5 to 11, chapter 424, Oregon Laws 2007, * * * is:
"(a) Limited to the evidence in the record of the public entity at the time of its final determination.
"(b) Available only for issues that are raised before the public entity with sufficient specificity to afford the public entity an opportunity to respond."
*1021 ORS 34.010 to 34.100 describes the writ of review process; ORS 34.020 provides, in part, that "any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors." As relevant here, ORS 34.040(1) allows issuance of the writ when
"an officer or tribunal * * * in the exercise of judicial or quasi-judicial functions appears to have:
"* * * * *
"(c) Made a finding or order not supported by substantial evidence in the whole record; [or]
"(d) Improperly construed the applicable law[.]"
A reviewing court has authority to "affirm, modify, reverse or annul the decision or determination reviewed, and if necessary, * * * to direct the inferior court, officer, or tribunal to proceed in the matter reviewed according to its decision." ORS 34.100.
As relevant here, Friends' petition for a writ of review pleaded that the county (1) erred in determining that claimant had vested rights without considering whether his use of the property complied with the issued waivers; (2) misconstrued applicable law and made a decision not supported by substantial evidence in determining vested rights without evidence of the likely costs of the residential development and the adaptability of claimant's expenditures to achieve alternative lawful uses; and (3) misconstrued applicable law by failing to discount the costs of preparing the property for development in its assessment of vested rights. Friends sought reversal or annulment of the vesting officer's decision.
After briefing and argument, the reviewing court affirmed the vesting officer's findings and conclusions that claimant had a vested right to complete development of the subdivision with residences. The court issued a letter opinion addressing the review of claimant's vested right determination together with review proceedings of other claimants with similar factual and procedural claims. The court first noted the limited nature of the writ of review proceeding:
"It is also important at this point to note what else is or is not in issue. This is not a question of whether this court agrees or disagrees with the decision of the vesting officer. This is not an appeal, nor is it de novo review where the court has latitude to substitute its own assessment of the facts. It is a judicial review of the vesting officer's decisions for correct application of the law, jurisdiction and sufficiency of the evidence in support of factual findings or conclusions."
(Footnote omitted.)
The court then analyzed the sufficiency of the county record in each case to support the vesting officer's findings on the application of vested rights standards under section 5(3), concluding that "there is substantial evidence in the record to support the conclusion that the factors taken collectively establish a vested common law right to complete the residential use of the property as described in the waivers."
On appeal, Friends contends that the court erred in its review of the vesting officer's legal conclusion that the determined facts established a "common law vested right * * * to complete and continue the use described in the waiver" under section 5(3) of Measure 49. More particularly, Friends asserts that the court should have reversed the vesting officer's determination because claimant presented insufficient evidence to establish a vested right. Friends argues that vested rights to develop residential uses cannot be established as a matter of law without the start of home construction or, alternatively, without evidence of substantial expenditures toward the end of residential development where the substantiality of the expenditures is measured against the total costs of the development. It further contends that the court erred in concluding that the county's determination that claimant acted in good faith was supported by substantial evidence. Friends reasons that claimant's expenditure of money on the subdivision after the date Measure 49 was referred to the voters establishes bad faith as a matter of law and that the failure to consider that bad faith affected the legal determination of vested rights. Friends finally asserts that the court erred in *1022 rejecting its contention that the vested rights found by the vesting officer exceeded those permitted under the waivers.
Claimant responds that the start of home construction is not necessary to establish vested rights; the reviewing court properly determined that there was substantial evidence to support the factual conclusion that rights vested; and the vested rights determination was legally sufficient without evidence of the total project costs. Claimant further contends that the lawfulness of the subdivisionwhether it complied with the issued waiverswas established by the approval of the final plat by the county.
Under ORS 34.100, "an appeal" may be taken from a judgment of the circuit court on review "in like manner and with like effect as from a judgment of a circuit court in an action." As we discussed in Johnson v. Civil Service Board, 161 Or.App. 489, 498, 985 P.2d 854, modified on recons., 162 Or.App. 527, 986 P.2d 666 (1999), our standard of review in appeals brought pursuant to ORS 34.100 ultimately depends on the "triggers" described in ORS 34.040(1)(a) to (e) for the issuance of the writ. In Johnson, we explained:
"Those `triggers' ultimately rest on legal determinationse.g., whether there is jurisdiction, whether the decision was unconstitutional, etc. Even the determination of whether a finding or order was supported by substantial evidence is circumscribed by legal principles. See, e.g., Reguero [v. Teacher Standards and Practices], 312 Or. [402,] 417[, 822 P.2d 1171 (1991) ] (describing standard for determining propriety of relying on hearsay as substantial evidence)."
161 Or.App. at 498, 985 P.2d 854. In Johnson, given the centrality of Reguero to that petitioner's substantial evidence challenge, we reviewed the circuit court's denial of the writ for errors of law. Id. Similarly, here, we review the trial court's partial affirmance of the county's determination for errors of law; that is, we ask whether the trial court correctly applied ORS 34.040(1)(c) and (d). See Salosha, Inc. v. Lane County, 201 Or.App. 138, 142, 117 P.3d 1047 (2005) (citing Johnson, 161 Or.App. at 498, 985 P.2d 854, and discussing the standard of review applicable to writs sought under ORS 34.040(1)(c) (lack of substantial evidence)). In particular, given Friends' contentions, our task is to ascertain whether the court erred in its construction of the term "use of the property" in section 5(3) of Measure 49 in applying the proper standard of review to the county's justification that the use complied with the waivers, and in the court's assessment of whether the "county's failure to consider or give proper weight to [a specific vested rights determination] factor might have affected the vested rights determination." See Union Oil Co. v. Board of Co. Comm. of Clack. Co., 81 Or.App. 1, 8, 724 P.2d 341 (1986) (stating that standard for reviewing LUBA opinion that, in turn, reviewed local government application of vested rights standards); see also Cook v. Clackamas County, 50 Or.App. 75, 622 P.2d 1107, rev. den., 290 Or. 853, 642 P.2d 307 (1981) (review obtained of the weight given to and manner of application of vested rights factors in an appeal of a judgment rendered in an action at law).
The categorization and resolution of Friends' specific contentions about the meaning and application of section 5(3) of Measure 49 requires an understanding of the factors used by Oregon courts and agencies to evaluate the creation of a "common law vested right," as that term is used in Measure 49. We assume that the legislature and voters "intended to incorporate the legal meaning of [a statutory] term that this court has developed in its cases." Joshi v. Providence Health System, 342 Or. 152, 158, 149 P.3d 1164 (2006).
In Corey, the Supreme Court evaluated the meaning of "common law vested right," as used in Measure 49, noting that
"[i]t is clear from text and context alone that that phrase is referring to broadly applicable legal precedents describing a property owner's rights when land use laws are enacted that make a partially finished project unlawful. See, e.g., Clackamas Co. v. Holmes, 265 Or. 193, 197, 508 P.2d 190 (1973) (describing `vested rights' in those terms)."
344 Or. at 466, 184 P.3d 1109. Thus, a "common law vested right" is one established *1023 by the application of court-made equitable principles rather than standards adopted by a legislative body. The "policy underlying the notion of vested rights is basically one of fairness[.]" And, it "focuses on financial and economic commitment to a particular use." Polk County v. Martin, 50 Or.App. 361, 366-67, 622 P.2d 1152, rev'd on other grounds, 292 Or. 69, 636 P.2d 952 (1981).
The common law of the states differs on the type and degree of efforts necessary to establish a vested right to complete development. "[T]he general majority rule is that a vested right exists when a building permit has been issued by the municipality, substantial construction or expenditures in reliance on the building permit are in evidence, and the landowner acted in good faith." Patricia E. Salkin, 4 American Law of Zoning § 32:2, 32-3 (5th ed 2010). "Some states allow rights to vest early in the development process, requiring only the filing of an application with the municipality." Id. at § 32:3, 32-12. Finally, a group of states use a "balancing interest test, or some variation thereof, [in which] vested rights depend on `equitable fairness, both to the property owner and to the general public.'" Id. at § 32:3, 32-14. Oregon jurisprudence is in the last camp.
The Supreme Court articulated and applied guidelines in Holmes to determine whether rights vest to complete and continue an improved property use. In that case, property owners purchased unzoned rural property, planning to construct a chicken processing facility. 265 Or. at 196, 508 P.2d 190. Toward that particular end, the owners conducted soil tests, received state preliminary approval for wastewater disposal, constructed a well sized for industrial use, purchased an irrigation system, planted a type of grass suitable for wastewater disposal, and installed an electrical power distribution system, all at a cost of $33,000. The total cost of the project would be between $400,000 and $500,000. The county then adopted zoning that precluded the chicken processing plant use. When the owners began construction of the processing plant, the county sought and obtained injunctive relief to enjoin further construction. Id.
The Supreme Court reversed, concluding that the owners had a vested right to complete and use the processing plant. Id. at 201, 508 P.2d 190. Relying on general treatises, the court first observed:
"The courts and the text writers are agreed that in order for a landowner to have acquired a vested right to proceed with the construction, the commencement of the construction must have been substantial, or substantial costs toward completion of the job must have been incurred."
Id. at 197, 508 P.2d 190 (citations omitted). After noting that "[s]ome courts have attempted to define substantial expenditures on the basis of the ratio of expenses incurred to the total cost of the project[,]" id., the court held:
"The test of whether a landowner has developed his land to the extent that he has acquired a vested right to continue the development should not be based solely on the ratio of expenditures incurred to the total cost of the project. We believe the ratio test should be only one of the factors to be considered. Other factors which should be taken into consideration are the good faith of the landowner, whether or not he had notice of any proposed zoning or amendatory zoning before starting his improvements, the type of expenditures, i.e., whether the expenditures have any relation to the completed project or could apply to various other uses of the land, the kind of project, the location and ultimate cost. Also, the acts of the landowner should rise beyond mere contemplated use or preparation, such as leveling of land, boring test holes, or preliminary negotiations with contractors or architects."
Id. at 198-99, 508 P.2d 190 (citations omitted).
In applying those factors, the court found it significant that the county advised the owners before purchase of the property for the chicken processing plant use "that the land was unzoned and there was `no long range planning in that area.'" Id. at 199, 508 P.2d 190. Based on that advice and preliminary state approval of the planned wastewater disposal system, the owners purchased *1024 the property and constructed project-specific improvements. That context and the ratio of incurred expenditures allowed the court to determine that "the amount of $33,000 spent by defendants was substantial[,]" id. at 200, 508 P.2d 190, and, ultimately, to conclude that "the defendants acted in good faith, the expenses incurred were substantial and directly related to the construction and operation of the processing plant, and therefore defendants acquired a vested right to complete the construction." Id. at 201, 508 P.2d 190.
The court expressly noted that the defendants' failure to obtain a building permit before the zone change did not preclude a vesting:
"The plaintiff argues that defendants' claim to a vested right to complete the plant must fail because they did not secure a building permit. The defendants had not started construction of any buildings prior to the enactment of the ordinanceall of the $33,000 expenditures were related to the land, as we have mentioned. After enactment of the zoning ordinance, it is obvious that the county would not have granted defendants a permit to construct a chicken processing facility."
Id. at 200-01, 508 P.2d 190. Thus, the good faith of the landowners in Holmes and other equitable factorsthe purchase of the property for the vested use in reliance on zoning representations by the county and prior approval of the wastewater system by state authoritiesaffected the degree of expenditures found to be substantial enough to create a vesting.
The interrelatedness of the Holmes factors was confirmed in Eklund v. Clackamas County, 36 Or.App. 73, 583 P.2d 567 (1978), overruled on other grounds by Forman v. Clatsop County, 63 Or.App. 617, 665 P.2d 365 (1983). There, we concluded that a determination of vested rights under the Holmes guidelines requires consideration of the factors as a whole: "None of these factors is predominant; they are merely guidelines in assessing the evidence and deciding the issue." Eklund, 36 Or.App. at 81, 583 P.2d 567. A vested right to complete a partially constructed subdivision was found based on the prior construction and residential development of its initial phases, preliminary approval of the subdivision by zoning authorities, completed construction and use of a water system to serve the entire subdivision, approval of the water system by state health authorities, and the inability to spread the operational costs of that water system among occupants of only part of the subdivision. Id. at 82, 583 P.2d 567.
In Eklund, the good faith of the landowner, prior construction of part of the development, the inadaptability of the investment for zoned agricultural uses, the completeness of the utility system, and other equitable factorsprior governmental approvals and the inequity to existing users of the water systemobviated the need to assess the proportionality of expenditures to the total project costs in order to find a vesting. We noted that "[t]here is no evidence in the record respecting the projected ultimate cost, but the monies expended thus far are substantial." Id. at 81, 583 P.2d 567.
By contrast, the proportionality of expenditure factor was more probative in Webber v. Clackamas County, 42 Or.App. 151, 600 P.2d 448 (1979), also involving the vesting effect of a constructed water supply system. In Webber, the plaintiffs had invested money towards developing a 127-acre parcel for residential use by constructing a water system designed to serve approximately 250 houses. Id. at 153, 600 P.2d 448. The plaintiffs argued that construction of the water system vested the right to sell the homesites and that the proportionality of expenditure factor should be measured against lot development costs rather than the entire cost of residential development. We found that approach to be "untenable" and that there was no evidence of total project costs "upon which we can make the appropriate economic findings." Id. at 155 n. 2, 600 P.2d 448. We concluded that rights to a 250-residence development did not vest because of a presumably low expenditure ratio and because the investment could be adapted to serve a lower density residential development on the plaintiffs' *1025 land as well as nearby residential property.[5]Id. at 155-57, 600 P.2d 448. We distinguished Eklund:
"In Eklund * * *, we found that a nonconforming use had been established on the basis of construction of a water system plus other factors which are not present here. Plaintiffs correctly acknowledge in their brief that the proponent of the vested right in Eklund had proceeded further with development than plaintiffs did in this case. There, the water system in question was an integral part of a larger system designed to serve a residential development of which a major portion had already been completed, and the system was not compatible with other uses."
Webber, 42 Or.App. at 156 n. 3, 600 P.2d 448.
In Union Oil Co., the petitioner sought to establish an automobile service station as a vested use. 81 Or.App. at 3, 724 P.2d 341. That application was denied by the county, and the denial was upheld on review by the Land Use Board of Appeals. Id. On further review in this court, the petitioner argued that the county erred in failing to include the petitioner's purchase price for the property in evaluating the Holmes expenditure ratio factor, arguing that, "for purposes of the substantiality test, only the gross amount of expenditures is relevant, and the purpose of the expenditures can be considered only in connection with the type of expenditure test." Id. at 5, 724 P.2d 341 (emphases in original). We rejected that contention, explaining, "The problem with petitioner's argument is that it takes each of the tests or factors enumerated in Holmes as being wholly independent of the others." Id. at 6, 724 P.2d 341. Although we recognized that the purchase of property for an intended use, later made unlawful, was relevant to the "good faith" element in the Holmes equation, id. at 7, 724 P.2d 341, we concluded that the "cost of acquiring the land is not a determinant of whether the owner has made substantial expenditures toward the commencement of the planned activity on the land." Id. at 8, 724 P.2d 341.
The petitioner then contended that the county's decision should be remanded because it failed to consider all of the Holmes factors in reaching its determination that no vested rights had accrued. Id. The county argued that local governments had "the prerogative of giving greater weight to some factors than to others, as the circumstances of specific cases may indicate or dictate." We concluded:
"Whatever abstract merit there may be to petitioner's argument, petitioner does not reduce it to particulars. It may be that a county's failure to consider or give weight to a specific factor in a specific case could be a basis for remand but only if the proponent or opponent of the vested right at least demonstrates that the county's failure to consider or give proper weight to the factor might have affected the vested rights determination. Petitioner makes no such demonstration."
Id.
The above cases establish that all of the Holmes factors are material to the determination of a vested right and that they are interrelated. The inquiry is equitable in nature, requiring an evaluation of the progress of land development at the time of the downzoning, either in terms of a substantial start of construction of the vested use itself or substantial expenditures toward that particular end (as distinguished from expenditures for an otherwise lawful use of the property). The adaptability of expenditure factor is more significant, as was the case in Webber, when the change of law does not entirely preclude the intended use. The degree of construction or expenditures necessary to be substantial depends on the proportion of those efforts or costs to the total project buildout or budget. Given the interrelatedness of the factors, the degree of construction or expenditure necessary to be substantial may be affected by the other Holmes factors (good or bad faith of landowner, size of project, the location of project with respect to other uses) and other equities, including the past conduct of the zoning authorities. *1026 Similarly, the degree to which a particular factor is material to a determination of vested rights is affected by the strength or weakness of the equities that result from the application of the remaining factors.
With that background, we turn to Friends' specific contentions. To reiterate, section 5(3) of Measure 49 provides that a timely Measure 37 claimant is "entitled to just compensation" through the residential development provided in the measure or by virtue of
"[a] waiver issued before [December 6, 2007,] to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right on [December 6, 2007,] to complete and continue the use described in the waiver."
Friends first contends that the reviewing court erred in its construction of the term "use of the property" in section 5(3). The vesting officer found:
"The `use' in this case is subdivision of the property and establishment of 10 homesites. Approval of the preliminary plat on May 11, 2007, and recording of the final plat on December 5, 2007 are substantial evidence that the applicant's use of the property complies with waivers from the State and County * * *. In the alternative, as a matter of law the decision by the County to approve the preliminary and final plats in this case established that the uses approved therein complied with the waivers, a decision that cannot be attacked collaterally in these proceedings."
The reviewing court determined that the vesting officer misconstrued the meaning of "use" in section 5(3):
"I conclude that the vesting officer misconstrued the law when he equated `use' with `subdivision of the property and establishment of homesites.' The plain meaning of `use' means a `residential use' or `commercial use' and requires actual employment of land for that purpose. That is not to say it requires completion of construction of a dwelling or commercial building. That is at the core of the vested rights conceptthat a landowner has the right to complete construction necessary for that use, if the landowner has met the common law vesting requirements to do so. The text and context of the word `use' does not support the vesting officer's interpretation."
(Emphases in original.) The court concluded that the relevant "use of the property" was the "actual employment of land" for residential development and that the phrase did not require a completed usethe construction and occupation of homesbut could be shown by actions on the property toward the construction of residences, including the construction of roads and utility systems. Friends asserts that the court erred in its construction of the term and that "use of the property" requires substantial actions to actually initiate the construction of dwellings after the issuance of residential building permits. As noted earlier, we review the court's construction of the term "use of the property" for legal correctness.
Our task is to determine the voters' intent in enacting section 5(3) of Measure 49, which we glean from the text, context, and legislative history of the statute, resorting if necessary to maxims of statutory construction. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009).[6] The plain text of that section provides that a claimant is "entitled to just compensation as provided in * * * [a] waiver issued" before December 6, 2007. However, the "extent" of that entitlement is limited in two separate ways: (1) by requiring that the claimant use the property consistently with the waiver and not for some other kind or degree of use; and (2) by whether, and the extent to which, the use described in the waiver has vested under the common law. Put another way, the use must not only *1027 "vest" under the common law; the text imposes a separate requirement that the property be used as described in the waiver.
The plain meaning of "use" in this regard is the employment of land for a particular purpose. Among its numerous definitions, "use" is generally defined to mean "to put into action or service: have recourse to or enjoyment of: EMPLOY." Webster's Third New Int'l Dictionary 2523 (unabridged ed 2002). Analogously, "farm use" is defined by ORS 215.203(2)(a), for purposes of statutes regulating zoning of agricultural lands, as "the current employment of land for the primary purpose of obtaining a profit in money by [various agricultural activities]." Zoning laws typically define allowed land "uses" by referencing particular activities on land or structural improvements to land. See, e.g., ORS 215.213 and ORS 215.283 (listing of "uses" allowed in exclusive farm use zones as including certain types of structures (e.g., "public or private schools," "churches," and "dwellings") and "operations" or activities on land (e.g., "operations for the exploration for minerals" and "creation, restoration or enhancement of wetlands")); ORS 215.441 and ORS 227.500 (regulating "use of * * * real property for activities customarily associated with" places of worship). Thus, the plain meaning of the text confirms, as the reviewing court concluded, that "use of the property" means the actual employment of land for a residential purpose.
Nonetheless, Friends contends that the "use of the property" for purposes of waiver consistency under section 5(3) must be a use authorized by a building permit. But the text of section 5(3) requires only that the property owner's use "complies with the waiver." To whatever extent an issued waiver allows activities on the land without a predicate building permit, those activities are a "use of the property [that] complies with the waiver." In this case, there are two waiversone from the state and one from the county. The county's waiver allowed activities on the property to "divide the subject property into ten lots" and to "establish dwellings on undeveloped lots." The state waiver also did not apply regulations that would inhibit "division of the 38.8-acre subject property into nine 2.69-acre parcels and one 12.4-acre parcel or to [claimant's] development of a dwelling on each 2.69-acre parcel." A single-family residence on nine lots no smaller than 2.69 acres is the use allowed by the waivers. Claimant's construction of infrastructure that is consistent with the amount and degree of the development allowed by the waiver and sought through the vesting decision is a "use of the property [that] complies with the waiver."
Friends next argues that, even if residentially improved 2.69-acre lots are generally allowed by the waivers, the state waiver restricts the allowed use "to the extent that use was permitted when [claimant] acquired the property on December 3, 1970." Friends contends that the administrative record establishes that, at the time of acquisition, county zoning law precluded single-family dwellings on claimant's property, unless the dwellings were in conjunction with farm use. Therefore, according to Friends, claimant's use of the property for more intensive residential development is not a "use of the property [that] complies with the waiver." Claimant responds that approval of the subdivision plat necessarily adjudicated the lawfulness of the proposed residential development and that Friends' assertion is an impermissible collateral attack on the plat approval. Claimant also contends that the residential uses allowed under the waiver were consistent with the acquisition zoning and that the same legal issue about the effect of that zoning was decided against Friends' contentions in Reeves v. Yamhill County, 55 Or LUBA 452 (2007).
We agree with claimant that plat approval by the county is a determination of its compliance with applicable zoning regulations but do not agree that it precludes Friends' argument. ORS 92.090(3)(c) precludes approval of a subdivision plat by a city or county unless the "subdivision * * * plat complies with any applicable zoning ordinances and regulations * * * that are then in effect for the city or county within which the land described in the subdivision * * * plat is situated." ORS 92.090(2)(c) requires the same determination for county approval of a tentative plan for a subdivision.
*1028 The approval of a tentative subdivision plan is a "limited land use decision." ORS 197.015(12). ORS 197.195 requires notice and opportunity to comment prior to any approval of a limited land use decision. Yamhill County Land Division Ordinance (YCLDO) sections 4.045 to 4.060 implement the requirements of ORS 197.195. Under those procedures, notice of a tentative subdivision plan application and opportunity to comment is given to owners of land adjoining the proposed subdivision and members of the planning commission and board of county commissioners. Application notice is also published in a newspaper of general circulation in the county. YCLDO § 4.050; Yamhill County Zoning Ordinance (YCZO) § 1301.01 (Type B procedure). Once the planning director approves the tentative subdivision plan, the director provides notice of decision to "the [board of county commissioners], the owner, referral agencies, those submitting statements in support or opposition, those present at the review session and those requesting information in writing of such decisions." YCLDO § 4.060. Any person notified of the decision may seek and obtain an evidentiary hearing on the application from a hearings officer. YCZO § 1301.01. Thus, there was a participatory process that allowed a quasi-judicial public hearing before the approval of the tentative subdivision plan. The record does not show if Friends was notified of the tentative subdivision plan application or director decision.
In order for the approval of the subdivision plat to be given preclusive effect in the instant case, however, the record must demonstrate that the following requirements were met:
"1. The issue in the two proceedings is identical.
"2. The issue was actually litigated and was essential to a final decision on the merits in the prior proceeding.
"3. The party sought to be precluded has had a full and fair opportunity to be heard on that issue.
"4. The party sought to be precluded was a party or was in privity with a party to the prior proceeding.
"5. The prior proceeding was the type of proceeding to which this court will give preclusive effect."
Nelson v. Emerald People's Utility Dist., 318 Or. 99, 104, 862 P.2d 1293 (1993) (citations and omitted). As was noted in Nelson, under the fifth requirement, not all types of administrative proceedings are appropriate to establish issue preclusion. Id. at 104-05 n. 4, 862 P.2d 1293.
"Whether an administrative decision has a preclusive effect depends on: (1) whether the administrative forum maintains procedures that are `sufficiently formal and comprehensive'; (2) whether the proceedings are `trustworthy'; (3) whether the application of issue preclusion would `facilitate prompt, orderly and fair problem resolution'; and (4) whether the `same quality of proceedings and the opportunity to litigate is present in both proceedings.'"
Id. (citations omitted).
Here, we need not decide whether, under the fifth requirement, the administrative proceeding that resulted in approval of the subdivision plat is the type of proceeding that will be given preclusive effect because the record fails to demonstrate that the second, third, and fourth requirements were met. Namely, the record does not show that Friends was notified of the tentative subdivision plan application or director decision, that Friends was a party to the proceeding, and that the issue Friends now raisesthat claimant's use of the property, as indicated in the plat, is more intensive than that permitted when claimant acquired the propertywas actually litigated in that proceeding. Therefore, the subdivision approval did not operate to preclude Friends from later contesting the lawfulness of any proposed development.
The reviewing court treated the zoning compliance issue as an issue of fact, to be decided by whether there was substantial evidence in the record that residential uses countenanced by the subdivision approvals were consistent with the acquisition zoning and therefore allowed by the waivers. But a different issuethe legal effect of the agricultural zoning at the time of property acquisitionwas preserved and presented to the *1029 county by Friends. The county decision was governed by the Measure 49 Vested Rights Ordinance, an ordinance adopted under the county's planning authority set out at ORS 215.050.[7] That ordinance required the county review authority to
"base its Final County Vesting Decision on whether the Applicant's use of the property complies with orders from the State and Board granting Measure 37 relief, and whether the Applicant has a common law vested right as of December 6, 2007 to complete and continue the use described in the waiver."
Measure 49 Vested Rights Ordinance § 2.04.
Under its vested rights ordinance, the county was obliged to justify its vested rights determination in a decision that explained how the property use complied with the issued waivers. See Measure 49 Vested Rights Ordinance § 2.01 (obligation to "determine vested rights"); § 2.02 (delegation of authority to vesting officer to "make a Final County Vesting Decision"); § 2.04 (stating standards for issuance of vesting decision). The county decision did not make findings on the acquisition zoning and the limitations of that zoning. Accordingly, the decision was insufficient to explain why the proposed vested uses complied with the waivers. The reviewing court erred, therefore, in concluding that this part of the vesting decision was supported by substantial evidence under ORS 34.040(1)(c) when the decision failed to construe and apply the applicable zoning law that was relevant to the issue raised by Friends.
Our determination on the waiver compliance necessitates a remand, and, arguably, obviates the need to address Friends' remaining arguments concerning whether the trial court misconstrued section 5(3) of Measure 49 by failing to properly and completely apply the Holmes factors for determining if claimant had a "common law vested right * * * to complete and continue [the subdivision development]." Nonetheless, for prudential reasonsnamely, there is some likelihood that the question whether a vested right has been established will continue to be an issue on remand in this case and to obviate further, unnecessary appeals on that questionwe will address Friends' arguments on this issue. See Dept. of Transportation v. Stallcup, 195 Or.App. 239, 254-55, 97 P.3d 1229 (2004), rev'd on other grounds, 341 Or. 93, 138 P.3d 9 (2006).
In particular, Friends asserts that the court erred in (1) affirming the vesting officer's conclusion that a vested rights determination could be made for the claim without evidence of the costs of the buildout of the project and a comparison of that cost with the relevant expenditures made by claimant; and (2) including project expenditures made after June 15, 2007, the date of the Measure 49 referral, in determining whether those expenditures were "substantial" under Holmes. Claimant responds that the administrative record contained evidence of the total cost for the project sufficient to consider the expenditure ratio factor and that, in any event, the court did not err in not giving that factor determinative effect in the application of the Holmes factors. Claimant argues that the court did not err in affirming the county's legal conclusion that expenditures after June 15, 2007, were relevant to the expenditure ratio analysis and not otherwise probative of claimant's bad faith. We conclude that the court erred in affirming the county's decision that claimant's rights had vested because the county's decision lacked necessary findings and consideration of the expenditure ratio factor. We agree with claimant, however, that post-referral expenditures are relevant to consideration of the expenditure ratio factor and are not evidence of bad faith under Holmes.
Here, the vesting officer concluded that claimant's expenditures were "substantial" without making findings describing the particular type of residential development sought to be vested and the likely total cost of that development as of the vesting date. He concluded:
*1030 "Opponents have suggested that certain expenses and obligations incurred should not be counted, and that the amount spent should be weighed against an estimated total cost of constructing nine additional houses.
"This is a speculative analysis that may be necessary in other cases in which this factor deserves to be given more weight, but is not necessary to properly address [the expenditure ratio factor] in this case. All of the expenses in this case were legitimately incurred, in good faith, and are substantial. The fact that the applicants development was fully sanctioned by, and coordinated with, Yamhill County, is more important in this case than the speculative ratio test.
"The vesting officer also finds that the record in this case contains substantial evidence to support ratios that have been deemed acceptable in Holmes and other Appellate Court cases, under any of the tests proposed by the parties. The amount spent by the applicant and steps taken by the applicant to provide necessary infrastructure and utilities are `substantial,' even if it is assumed that each house would cost $450,000 to construct."
(Underscoring in original.) Later in the decision, the vesting officer concluded that "this decision treats the `ultimate cost' as the cost of establishing vacant homesites."
The reviewing court concluded that the vesting officer did not err in failing to determine the likely project coststhat is, the denominator of the expenditure ratio factorin his application of the Holmes factors:
"I conclude that a specific determination of the denominator in each of these cases is not necessarily required. Further, even [if] it is, consideration of the other factors may be so favorable to the landowner that the absence of a denominator is simply not fatal to the ultimate conclusion which requires consideration of all factors.
"* * * And, in this court's view, it may be possible to determine that the expenditures and progress is `substantial' without a clearly defined estimate of total cost. Appellate cases appear to have applied, or at least allowed, this approach in the past. If the landowners have spent what a reasonable person could conclude is a substantial amount of money that would seem to be a substantial investment so long as the fact-finder can at least reasonably infer that it is a substantial expenditure in relationship to the reasonably foreseeable cost of completion."
(Footnote omitted; emphasis in original.) The court noted that it was "unable to locate figures for total construction, including houses. The vesting officer states that in most cases this is speculative in any event. Perhaps I have simply not found more specific figures. As stated, this may not be fatal."
As noted earlier, section 5(3) of Measure 49 contains three separate requirements: (1) that the "claimant's use of the property complies with the waiver" issued before December 6, 2007; (2) that the claimant has "a common law vested right * * * to complete and continue the use described in the waiver"; and (3) that the existence of the vested right be determined as of "the effective date of this 2007 Act [December 6, 2007]." Again, to recap, the existence of a "common law vested right" is determined by the factors set out in Holmes. As we noted in Eklund, the Holmes factors fall into four categories:
"The Supreme Court in Holmes identified four essential factors to be considered in assessing the evidence of a nonconforming use[:] (1) the ratio of prior expenditures to the total cost of the project, (2) the good faith of the landowner in making the prior expenditures, (3) whether the expenditures have any relationship to the completed project or could apply to various other uses of the land, and (4) the nature of the project, its location and ultimate cost."
Eklund, 36 Or.App. at 81, 583 P.2d 567.[8]
In evaluating those criteria under section 5(3), the court erred in its legal determination *1031 that an assessment of the ratio of project-related expenditures to the overall expected costs of the residential development proposed to be vested was not necessary in order to determine that claimant had accrued a "common law vested right" as that term is used in section 5(3) of Measure 49. We reach that conclusion based on the context of the term "common law vested right" in section 5(3)its relationship to two other parts of the section: the separate requirement that "claimant's use of the property complies with the waiver" and the dictate that the vesting be determined as of "the effective date of this 2007 Act [December 6, 2007]." We are required to adopt a construction of section 5(3) that gives effect to each of its particulars. See ORS 174.010 (in the construction of a statute "where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all"). Thus, a preferred construction of "common law vested right" is one that is not redundant of the considerations involved in determining whether "claimant's use of the property complies with the waiver" and in evaluating the extent of claimant's efforts as of December 6, 2007.
As just noted, the determination of whether "the claimant's use of the property complies with the waiver" partially mirrors the considerations that go into "whether the expenditures have any relationship to the completed project." That determination requires an assessment of whether the expenditures have been made on a specific property usethe particular development allowed under the waiver, as distinguished from some other use. Thus, all qualified section 5(3) claimants have made expenditures that are particular to the waived use. The relevance of the adaptability factor appears to be its interdependent effect on the numerator in the expenditure ratio factor and not its independent application to distinguish one vested rights claimant from another.
The good faith factor also does not work to sort meritorious "common law vested right[s]" from those less worthy. In the context of section 5(3) of Measure 49, each vested rights claimant proceeds in the development of property with permission of state and local zoning authorities in the form of Measure 37 waivers. Good faith, in that sense, is a given for most section 5(3) claimants.[9] But that quality again is ordained by the requirement in section 5(3) that "the claimant's use of the property complies with the waiver," and becomes duplicative and less relevant in assessing the nonredundant and separate requirement that "the claimant has a common law vested right."
Friends argues that claimant acted in bad faith in making expenditures (1) after June 15, 2007, with actual or imputed knowledge of the referral of Measure 49 or (2) after the measure's adoption on November 6, 2007, but before its effective date on December 6, 2007. Friends relies on the description in Holmes of the "good faith" vested right factor as going to "whether or not [the claimant] had notice of any proposed zoning or amendatory zoning before starting [claimant's] improvements." 265 Or. at 198, 508 P.2d 190. The difficulty with Friends' analysis is that Measure 49, the proposed amendatory zoning, makes uses that have vested as of December 6, 2007, lawful. Section 5(3) allows the continuance of uses that have "vested * * * on the effective date of this 2007 Act." In other words, the expenditures at issue in this case were made in order to establish an allowed use.[10] An interpretation of section 5(3) that *1032 takes into account only those landowner's investments made before July 15, 2007 (the referral date for Measure 49) or November 6, 2007 (the adoption date for Measure 49) is plainly inconsistent with the express direction of section 5(3) that the vesting calculation be made "on the effective date of this 2007 Act" and not earlier. The timing of expenditures made before that date is irrelevant to an assessment of the claimant's good faith in particular or to the determination of the accrual of vested rights in general.
Thus, the phrase "claimant's use of the property complies with the waiver" requires that all claimants under section 5(3) proceed with some degree of good faith by acting consistently with the waiver and expend some money on the employment of land for a specific development that is allowed under the waiver and not some other use, a nonadaptable expenditure that goes beyond generic preparation of the land for any use. Different text of the sectionthat the vesting calculation occurs "on the effective date of this 2007 Act"makes the timing of expenditures up to that point immaterial to the vested rights calculus.
In determining whether a claimant meets the separate requirement in section 5(3) of a "common law vested right," the Holmes factors for determining the existence of a vested right that are otherwise applied through those other parts of section 5(3) (i.e., good faith, expenditures on the waived use, particular timing of expenditures) are less probative as markers of a "common law vested right" than the factors that remain (i.e., expenditure ratio, cost and location of project) in order to avoid an internal redundancy in the section. Therefore, what becomes more material to a section 5(3) determination are the other Holmes factorsthe expenditure ratio, remaining issues about the adaptability of the investment to otherwise lawful uses under Measure 49, and the kind of project, including its location and costs. The text of section 5(3), then, prompts a more focused inquiry on whether a common-law vested right exists under that section than would be the normal case where none of the Holmes factors are predominant. See Eklund, 36 Or.App. at 81, 583 P.2d 567. Instead, the text and context of section 5(3) of Measure 49 makes a determination of the nature of the ultimate project (the location, extent, and type of residential development and its costs) and an assessment of the expenditure ratio particularly material to a vested rights decision under the measure.
Put another way, the equities of the Holmes inquiry in a Measure 49 vested rights determination involve a determination of the fairness of limiting a particular claimant to the residential development otherwise allowed under the measure (the homesites that could be obtained under sections 6, 7, and 9) given the investment already made in the specific residential development proposed to be vested. To a large extent, those equities, and the application of some of the Holmes factors, are common to all claimants under section 5(3) who meet the separate requirements of that section. That commonness suggests that distinction among claimants with vested rights and those without those rights must lie in differences about the individual degree of progress made to complete the development, in the words of the Supreme Court, the extent to which a project is "partially finished." Corey, 344 Or. at 466, 184 P.3d 1109. As noted earlier, the degree to which a Holmes factor is material to a vested rights determination is affected by the strength or weakness of the equities that result from application of the remaining factors. Here, the equities of the remaining factors are not so compelling as to obviate the need to calculate and evaluate the expenditure ratio factor.
The remaining Holmes factors affect both the calculation and use of the expenditure ratio factor in this type of case. As noted earlier, our case law establishes that all of the Holmes factors are material to the determination of a vested right in the abstract and that the factors are interrelated to each other. Thus, the necessary consideration of the expenditure ratio factor involves a comparison of the project-related costs incurred in good faith as of December 6, 2007, with the likely costs of completing the particular development sought to be vested based on construction costs as of December 6, 2007. The appropriate degree of that progress is affected *1033 by application of the relevant Holmes factors to the facts of the particular case and by a comparison to the ratios used in Holmes and subsequent decisions. The failure of the reviewing court to require the county to define the extent and general cost of the project to be vested and to "consider [and] give proper weight" to the expenditure ratio factor in this way is legal error in this case because that consideration "might have affected the vested rights determination." Union Oil Co., 81 Or.App. at 8, 724 P.2d 341.
In sum, the reviewing court erred in two respects in failing to remand to the county pursuant to the writ of review. First, the court should have remanded for a determination of the applicable zoning law at the time of claimant's acquisition of the property. Second, the court should have remanded for the county to determine the extent and general cost of the project to be vested and to give proper weight to the expenditure ratio factor in the totality of the circumstances of this case.
Reversed and remanded.
NOTES
[1] Section 6 requires approval of up to three lots, parcels, or dwellings under certain circumstances. Section 7 permits discretionary approval of up to 10 homesites under a more narrow set of circumstances.
[2] Section 9 provides that owners of property within the urban growth boundary of a city may qualify to develop one to 10 single-family dwellings under specified circumstances.
[3] The temporary parts of Measure 49 that pertain to previously filed Measure 37 claims (sections 5, 6, 7, 8, 9, 10, and 11) were not codified. See ORS 195.305 (explanatory note).
[4] The vesting officer concluded that claimant's rights to complete development of the subdivision were established by the December 5, 2007, final plat approval and that those rights were not affected by the subsequent effectiveness of Measure 49 on December 6, 2007. He considered the relevant land use to be the "creation of individual, saleable and developable homesites." According to the vesting officer, that use was completed by the recording of the final subdivision plat; the subsequent application of Measure 49 made that use a nonconforming use and obviated the need to determine whether an inchoate vested right to develop the property existed. He concluded that Measure 49 "should not be applied retroactively to divest the applicant in this case of entitlements that he legally obtained from the County prior to the effective date of [Measure 49]."
On review, the reviewing court annulled that part of the county decision. Claimant does not seek review over the court's rejection of the vesting officer's determination that a use allowed by a Measure 37 waiver could become nonconforming before the effective date of Measure 49 and not need to be justified under section 5 of Measure 49. We express no opinion on the correctness of the court's ruling. We do note, however, that the Supreme Court held in Corey that "[a]n examination of the text and context of Measure 49 conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners." 344 Or. at 465, 184 P.3d 1109. The court further noted that "Measure 49 by its terms deprives Measure 37 waiversand all orders disposing of Measure 37 claimsof any continuing viability, with a single exception that does not apply to plaintiffs' claim[, i.e., a vested rights determination under section 5(3)]. Thus, after December 6, 2007 (the effective date of Measure 49), the final order at issue in the present case had no legal effect." Id. at 466-67, 184 P.3d 1109 (emphasis in original). See also Pete's Mountain Homeowners Assn. v. Clackamas Cty., 227 Or.App. 140, 151, 204 P.3d 802, rev. den., 346 Or. 589, 214 P.3d 821 (2009) (Measure 49 as abrogating the continued application of the "goal-post" statute, ORS 215.427(3)(a), to development allowed by Measure 37 waiver); Cyrus v. Board of County Commissioners, 226 Or.App. 1, 202 P.3d 274 (2009) (appeal on the validity of a Measure 37 waiver dismissed as moot in light of the enactment of Measure 49 notwithstanding partial construction of the waived use).
[5] In Webber, the court noted that the adaptability factor required a showing of an "irreversible commitment" to the desired vested use. 42 Or. App. at 156, 600 P.2d 448. That dictum was disavowed in Cook, 50 Or.App. at 84, 84 n. 5, 622 P.2d 1107.
[6] The legislative history of Measure 49 is not helpful to the analysis of the statutory construction issues in this case. The measure was enacted as House Bill (HB) 3540 (2007) and referred to the voters on June 15, 2007. Or. Laws 2007, ch. 424. The provision concerning vested rights is not referenced in the ballot title for Measure 49. The explanatory statement for the measure provided by the 2007 Legislative Assembly notes that "[c]laimants who have received land use waivers under Measure 37 are entitled to complete developments under the provisions of Measure 37 if they have established vested rights to do so." Voters' Pamphlet at 19.
[7] ORS 215.050(1) confers authority to the county governing body to adopt and revise "a comprehensive plan and zoning, subdivision and other ordinances applicable to all of the land in the county."
[8] That conflation of the Holmes guidelines reads the good faith factor as including "whether or not [the landowner] had notice of any proposed zoning or amendatory zoning before starting * * * improvements." 265 Or. at 198, 508 P.2d 190. And it assigns to the "adaptability" factor (the relationship of expenditures to other lawful uses) consideration of whether the expenditures are "mere contemplated use or preparation, such as leveling of land, boring test holes, or preliminary negotiations with contractors or architects." Id. at 199, 508 P.2d 190.
[9] This is not to say that all sums expended in reliance on a waiver would necessarily be made in good faith. See Cyrus, 226 Or.App. at 18-20, 202 P.3d 274 (Sercombe, J., concurring) (discussing lack of good faith in making expenditures while a Measure 37 waiver was being contested); see generally Mason v. Mountain River Estates, 73 Or.App. 334, 698 P.2d 529, rev. den., 299 Or. 314, 702 P.2d 1111 (1985) (vested rights not established by expenditures prior to final development approval by county).
[10] See generally Cook, 50 Or.App. at 82 n. 4, 622 P.2d 1107 (affirming the trial court's finding in vested rights determination, where a comprehensive plan change made a use unlawful, that "`[t]he record does not substantiate a "race to construct" or that intervenor had any notice or knowledge of the Comprehensive Plan or its import prior to incurring the aforementioned substantial expense.'"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337656/ | 212 Ga. 478 (1956)
93 S.E.2d 710
SAMFORD
v.
SAMFORD.
19374.
Supreme Court of Georgia.
Argued June 13, 1956.
Decided July 10, 1956.
James C. Grizzard, Frank A. Bowers, Robt. W. Spears, for plaintiff in error.
James K. Rankin, C. B. Rogers, Powell, Goldstein, Frazer & Murphy, contra.
MOBLEY, Justice.
On October 15, 1954, Mrs. Jewell Bowden Samford filed her petition in Fulton Superior Court, seeking a divorce on the ground of cruel treatment. The defendant filed an answer denying the allegations of the petition. At the trial on June 1, 1955, the jury awarded the plaintiff a divorce and alimony and awarded custody of their minor child to the plaintiff. On June 30, 1955, the defendant filed a motion to set aside the verdict and judgment, which was denied on January 3, 1956. Thereafter, on January 27, 1956, he filed a motion for new trial which, on March 7, 1956, was likewise denied. To the order denying his petition to modify and set aside the verdict and judgment for divorce, and to the order denying his motion for new trial, the defendant excepts. Held:
1. In Huguley v. Huguley, 204 Ga. 692, 696 (51 S.E.2d 445), it was held that, upon a review by a motion for new trial of a judgment which denied a petition to vacate and set aside a divorce decree, the review is confined to a consideration of the judgment rendered on the petition to vacate and set aside. This being the law in such cases, a consideration of the judgment denying the petition to modify and set aside, which judgment is assigned as error in the motion for new trial, will be determinative of the case. The defendant's petition attacks the verdict and judgment solely upon the grounds that they are contrary to the evidence, contrary to the law, and without evidence to support them. There is evidence that for four or five months prior to the separation of the parties the defendant became very morose; he would leave home before breakfast and would not return until late at night; he began frequently seeing and being in the company of another woman; he told his wife he did not love her and that she did not love him, and that their marriage was a mistake; he told her that she was childish and was not his social equal; that if she did not get a divorce, he would go to Florida and get a divorce from her; on one occasion he left the family car with *479 the other woman and his wife had to go and get it; he lost all interest in his home life, wife, and child; he resented any demonstration of affection from his family. The plaintiff was very upset by the actions of her husband and brought her action for divorce when, as she testified, she "couldn't stand it any longer." She was made ill and extremely nervous by her husband's conduct, and has to be treated by a physician more or less regularly because of her nervous condition. In Hinkle v. Hinkle, 209 Ga. 554 (1) (74 S.E.2d 657), it was held: "Acts or conduct of the defendant which would not amount to cruel treatment when considered alone might be found by the jury to enter into an alleged `calculated intent' by the defendant of causing the plaintiff `great mental pain and anguish.'" The evidence is sufficient to sustain the verdict of the jury; and it was not error to deny the defendant's motion for new trial, which complained of the trial court's denial of the petition to modify and set aside the verdict and judgment for divorce and alimony.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263785/ | 479 F.Supp. 1036 (1979)
Floyd F. COLEY, Ralph Steed, Individually and on Behalf of All Other Persons Similarly Situated
v.
Bill CLINTON, Governor of the State of Arkansas; Gail S. Huecker, Commissioner of the Department of Social & Rehabilitative Services (Department of Human Services); Robert M. Rankin, Commissioner of Mental Health Services; Pat Hamilton, Administrator of the Arkansas State Hospital, for A. C. Yopp; Dr. James S. Beckman, Dr. Larry Killough, Virginia Robinson, Darrell Williams & Blanche Choate, Members of the State Hospital Board.
No. LR-C-78-198.
United States District Court, E. D. Arkansas, W. D.
November 9, 1979.
*1037 Griffin J. Stockley, Jr., Legal Aid Bureau, Little Rock, Ark., for plaintiffs.
Jackson M. Jones, Asst. Atty. Gen., Little Rock, Ark., for defendants.
MEMORANDUM OPINION
ROY, District Judge.
The plaintiffs are patients of the Arkansas State Hospital who were committed to that institution and remain there pursuant to court order. Floyd F. Coley was committed after he was found not guilty of aggravated robbery on the ground he was insane. Ralph Steed was committed after he was found incompetent to stand trial on a charge of disorderly conduct.
This petition for a declaratory judgment questions the constitutionality of Arkansas statutory procedures for commitment to and release from a mental institution of two classes of individuals:
1. Those charged with a crime but found to be incompetent to stand trial; and
2. those acquitted of a crime because they were found not guilty by reason of insanity.
The complaint also asks injunctive relief on the ground the Arkansas State Hospital has not filed reports on the plaintiffs as required by law. In addition, they allege the hospital denies them equal protection because they and others so committed are segregated from other patients not so committed and are treated in a different manner. This, they claim, amounts to an arbitrary restriction of their personal liberty.
The plaintiffs seek to represent other patients who have been committed in the same manner. Jurisdiction is alleged under 28 U.S.C. § 1343(3) and (4). Relief is requested pursuant to 42 U.S.C. § 1983.
The statutes that the plaintiffs seek to have declared unconstitutional on their face and as applied are found in Chapter 6 of Title 41 of the Arkansas Statutes Annotated, §§ 41-601 et seq., and specifically §§ 41-606, 607, 612 and 614. These sections of the Arkansas Criminal Code provide the procedures for commitment and release of persons charged with a crime. The alleged constitutional infirmities are that a separate hearing on the issue of lack of mental capacity and whether a patient presents a risk of danger to himself or to the community is not written into the statute. Plaintiffs also contend that more restrictive conditions for release are applied when commitment is made under the criminal statutes. The questioned provisions are contained in the Arkansas Criminal Code, enacted in 1975, effective January 1, 1976. Few cases have interpreted the meaning of these sections. Statutory procedure for voluntary and involuntary commitments were completely revised on April 10, 1979 by Act 817 of 1979 [Ark.Stat.Ann. §§ 59-14011424 (Supp.1979)].
Careful study of the sections of the Criminal Code under attack does not convince the court that they are facially unconstitutional, nor does the record reflect that these laws have been applied in such a manner that the federal court should take jurisdiction. The facts here are not analogous to those in Wessel v. Pryor, 461 F.Supp. 1144 (W.D.Ark.1978), which involved involuntary civil commitments to the State Hospital. Pursuant to an Agreement and Stipulation of the parties in that case, the court promulgated detailed procedures for civil commitments that included, inter alia, notice, right to counsel, opportunity to be heard, right to a hearing, right to present witnesses, and to cross-examine witnesses.
Since we do not find the questioned statutes inherently unconstitutional, federal court should not sit as a redrafting committee for inconsistencies or deficiencies in *1038 state statutory schemes until the state court has had an opportunity to interpret and rule on the matters in issue. The state court would in all likelihood review the challenged statutes in light of other statutory systems, the legislative history, and previous judicial pronouncements.
To rule prematurely on the issues posed by the plaintiffs, this court would be "forced to interpret state law without the benefit of state court consideration and therefore under circumstances where a constitutional determination is predicated on a reading of the statute that is not binding on state courts and may be discredited at any timethus essentially rendering the federal court decision advisory and the litigation underlying it meaningless." Moore v. Sims, ___ U.S. ___, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). The federal courts should not attempt to displace the state courts. In Calvin Burks, et al. v. Joseph Teasdale, Governor, et al., 603 F.2d 59 (8th Cir. 1979), the court stated:
. . . where a state institution like a prison or a mental hospital is concerned, a federal court does well to move with moderation so as to give the State an opportunity to solve independently the federal constitutional problems involved. See Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Welsch v. Likins, 550 F.2d 1122, 1128-29 and 1131-32 (8th Cir. 1977), . . .
The Court of Appeals for the Eighth Circuit has recently described guidelines for abstention in George v. Parratt, 602 F.2d 818 (8th Cir. 1979). The first consideration is what effect will abstention have on the rights to be protected? The plaintiffs have been committed under statutes that they claim deprive them of due process of law. However, they do not pose a serious argument that this court should take action that would result in their immediate release. They recognize that they will need to go to state procedures for this relief. Abstention, therefore, would not postpone any right they might have for release.
Another factor is whether there are available state remedies. These plaintiffs have been committed a sufficient length of time so that they clearly have a right, under the code, to present an application for release to the committing trial court; or to contest a report by the Director of the State Hospital which states that the patient should remain hospitalized. Also available is the additional remedy of a declaratory judgment action. Ark.Stat.Ann. § 34-2501, et seq. (Repl. 1962); Bennett v. National Ass'n for Advancement of Colored People, 236 Ark. 750, 370 S.W.2d 79 (1963).
The third factor is whether the challenged state law is unclear. Whether the plaintiffs had a right to a full evidentiary hearing at the time of commitment and at specified times after commitment does not appear to be clearly defined in the Arkansas law. Whether the right is implicit in the statutes must be determined by the Arkansas court. The statute does not clearly deny such a hearing or any of the other attributes of due process, and this issue has not been presented to the state courts.
A fourth factor to consider is whether the challenged state law is fairly susceptible of an interpretation that would avoid any federal constitutional question. The United States Supreme Court has not spoken to all of the requirements of due process that must be met in a civil or a criminal commitment. It is clear that there are some standards that must be substantially similar as between civil and criminal commitments. The standards for commitment of one charged with a crime or found innocent by reason of insanity must be substantially similar to those for involuntary civil commitment. Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1971). Also, one may not be committed for an indefinite period solely on account of lack of capacity to stand trial. Id. The procedures for commitment of one who has been convicted of a crime must be substantially the same as for those who have not. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). However, it has been recognized that differing treatment of these two classes of individuals is justified in some respects. Bolton v. Harris, 130 U.S.App. D.C. 1, 395 F.2d 642 (D.D.C.1968).
*1039 Careful consideration of the various pertinent sections of the Criminal Code compels this court to find that the state court may resolve the issues in a way that will avoid or moot the federal constitutional claims of the plaintiffs. This court cannot predict the exact way in which the state court will interpret the statutes, but we assume it will be in a lawful and constitutional manner.
The last factor to consider is whether abstention will avoid unnecessary federal interference in state operations. There is no active state suit that will be disrupted. However, the discretionary power to abstain is not dependent upon there being a state court suit in progress. The court should also consider whether federal intervention would interfere with state procedures and policies in areas of special state concern. Release and commitment of those alleged to have mental illness and to be dangerous is of compelling interest to the state. Abstention would allow the state to consider the claims of the plaintiffs and others without having to consider the effect of prior federal judicial pronouncements. This is precisely the situation Judge Eisele sought to avoid in Wessel v. Pryor, supra, when he said: "It is the intention of the parties and the Court that the agreed procedures will remain in effect only until the effective date of legislation (enacted by the General Assembly) covering the subject matter."
The plaintiffs have not sought release in state court and have not been denied a hearing there. In addition, there is nothing in the record to indicate that they were denied a hearing that complied with constitutional standards when they were committed or that the commitment has been challenged in the Arkansas court.
The plaintiffs' petition for declaratory relief as to the constitutionality of the Act is dismissed without prejudice. After the issues are presented to the Arkansas State Courts the plaintiffs may return to federal court for redress if any federally protected rights have been denied.
The court is making this decision sua sponte because the validity of the statute is important to the state court system of justice and federal court should abstain until the state court has passed on the issues involved. See Tate, Sua Sponte Consideration on Appeal, in Appellate Judicial Opinions 128 (Leflar ed. 1974), and Vestal, Sua Sponte Consideration in Appellate Review, Id.
The remaining issues to be decided are plaintiffs' requests for injunctive relief. The first to be discussed goes to the conditions of their confinement. The second refers to the duty of the Director of the State Hospital to file reports with the committing court.
The plaintiffs pray that the State Hospital be ordered to: (1) Formulate standards and procedures by which each patient committed to the State Hospital, whether by civil or criminal commitment, is evaluated to determine what restraints least restrictive of each patient's personal liberty shall be placed on him or her consistent with the needs of the State Hospital to provide for the physical safety of the other patients, hospital staff, and the community; (2) refrain from arbitrarily depriving them of personal liberty and from treating civil and criminal committees differently solely on the basis of whether their commitment was made pursuant to a civil or criminal commitment; (3) refrain from treating plaintiffs as though they were prisoners who may gain more personal liberties within prison if they demonstrate they will conform to the system; (4) made assignment of plaintiffs to that confinement area of the State Hospital least restrictive of their liberty; and (5) stop treating male patients differently from female patients.
Patients committed pursuant to the Criminal Code are all housed in Rogers Hall. There are four wards: (1) The Cell Block which houses individuals who have been sent to the State Hospital for psychiatric examination in connection with a criminal charge. These patients are normally at the State Hospital for a maximum of thirty days and are not there for treatment. *1040 (2) Ward B houses individuals who have been transferred from the Cell Block after they have been formally committed pursuant to the Criminal Code. These patients are kept in Ward B a minimum of sixty days. (3) Ward A is the next step in the progression and the patient may be moved here after the minimum time has been spent in Ward B. More privileges are allowed the patient in this ward. (4) Ward H houses all the women in Rogers Hall.
The patients in Rogers Hall are segregated from other patients and do not have as much freedom or as many privileges as those committed through the civil process. Ground privileges are more restricted and visitors are limited to attorneys and members of the immediate family. Otherwise, there is some, but little, difference between the treatment given these patients. There is, however, a significant difference between the classes of patients committed. One class is committed because not competent to stand trial and may face trial and possible imprisonment at some time in the future. Another class is composed of those found not guilty by reason of insanity. So in both these classes there is a need for security to prevent escapes and perhaps other crimes, which differs from civil commitments.
Therefore, the court finds the restraints on the plaintiffs' personal liberty are not more restrictive than is consistent with the duty of the State Hospital to provide for the physical safety of other patients, hospital staff, and the community.
The mere fact of segregation does not deny equal protection. The women in Rogers Hall are treated differently from the men in that they are housed in one ward and are not moved about pursuant to the same regulations as the menthat is, they are not initially placed in one ward and then moved to another when the staff considers them ready. Of the seventy patients in Rogers Hall at the time of trial, only five were women and four of these were committed for treatment; whereas there were approximately 32 men in Ward A. The difference in numbers is sufficient reason to house all of the women together. In fact, because they are so few in number it would result in unwarranted isolation if they were segregated in the same manner as the men.
The policy of initially placing the men in Ward B with restricted privileges and then moving them to Ward A with more privileges is sufficiently connected with therapeutic treatment to be a reasonable and valid procedure. The testimony of the State Hospital psychiatrists at the hearing is credible and supports this finding.
The second request for injunctive relief is that the court enjoin the defendants from confining individuals committed pursuant to the criminal code for more than a year without following the provisions of Ark.Stat.Ann. § 41-607 (Repl.1977) which requires the Director of the State Hospital to file with the committing court a written report indicating whether the defendant is fit to proceed to trial.
Section 41-607 provides that "[w]ithin a reasonable period of time, but in any case within one [1] year of a commitment" of an individual found unfit to stand trial, "the Director of the Arkansas State Hospital shall file with the committing court a written report indicating whether the defendant is fit to proceed." At that time, if the court, pursuant to the report of the Director or as a result of a hearing on the report, determines that the defendant is fit to proceed, prosecution may commence. The section then outlines findings the court may make which could lead to release of the patient from the State Hospital. This provision apparently applies only to those patients who were charged with a crime after the effective date of the Code, January 1, 1976. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979). It is apparent that the Director has a duty to file these reports, at the end of one year, or sooner, only for those found incompetent to stand trial.
Section 41-613 provides, inter alia, that the Director shall make application for the discharge or conditional release of a patient committed after being found not guilty by *1041 reason of insanity who is no longer affected by mental disease or defect or, if so affected, that he no longer presents a danger to himself or the person or property of others and is not in need of care, supervision, or treatment. This section of the Code contemplates a report by the Director only when he determines that the patient should be released.
In addition to the provisions previously discussed, the statute also provides: "A person committed pursuant to section 612 [§ 41-612] may apply to the court by which he was committed for an order of discharge or conditional release upon the ground that he is no longer affected by mental disease or defect, or if so affected, that he no longer presents a danger to himself or to the person or property of others."
Testimony of officials of the State Hospital was that 60% of the patients committed pursuant to the criminal code have been there for more than a year. Most are unfit for trial. Twelve and one-half percent to fifteen percent were adjudged not guilty by reason of mental disease or defect. Of those patients classified as unfit for trial and committed more than one year, no recommendation was made by the hospital staff to any committing court for release or discharge of a patient or that the patient was competent to stand trial. The testimony further reflected that reports are submitted as specified in the court order committing the patient, but if the order of commitment does not so direct, the officials of the Hospital exercise their own discretion concerning submission of the reports.
It is apparent that the Director of the Arkansas State Hospital has a duty under the statute to file the report for plaintiff Ralph Steed who was committed after being found incompetent to stand trial. This is because he was committed pursuant to the Criminal Code more than a year ago. The Director of the State Hospital is ordered to file this report if he has not already done so.
Although the statute does not specifically require such a report for Floyd F. Coley, who has a right under the provisions of § 41-613 to periodically apply for discharge, the court finds that a reasonable interpretation of the overall provisions of the Act requires that such a report be filed at least once a year.
Class relief was requested for all of the individuals held in the Arkansas State Hospital pursuant to the criminal commitment statutes. This relief must be denied. The length of time they have been committed, the statutory authority that allowed their commitment, and the reasons therefor would permit so many variations of remedy for each case that any sort of class relief would be impossible. Each case must be examined individually in order to determine whether a report and/or a release is warranted. Therefore, the requirements of Fed.R.Civ.P. 23 have not been met.
Accordingly, the complaint of the plaintiffs will be dismissed except for the limited relief indicated. An order to this effect will be entered on this date. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263787/ | 24 Cal.App.4th 439 (1994)
29 Cal. Rptr.2d 441
BETTY CONRAD, Plaintiff and Appellant,
v.
BALL CORPORATION, Defendant and Appellant.
Docket No. A062164.
Court of Appeals of California, First District, Division Five.
April 26, 1994.
*440 COUNSEL
Gagen, McCoy, McMahon & Armstrong and Richard C. Raines for Plaintiff and Appellant.
Michel & Manning, Jeff M. Fackler and Peter J. Johnson for Defendant and Appellant.
[Opinion certified for partial publication.[*]]
*441 OPINION
KING, J.
I. INTRODUCTION
In this case we hold that a nonsettling personal injury defendant waives any right to an offset against a judgment for a calculated economic damages portion of a settling defendant's pretrial lump-sum payment by failing to propose a special verdict which would permit such calculation by differentiating between economic and noneconomic portions of the judgment.
II. BACKGROUND
Betty Conrad's right hand was lacerated by a glass bottle manufactured by Ball Corporation, severing tendons and nerves.
Conrad testified as follows: She had purchased the bottle, which contained apple juice, at a supermarket. Upon returning home, she was about to place the bottle in a refrigerator, holding it with her right hand, when she heard an "air like sound" and felt wetness on her hand and feet. She "pulled in" at the bottle and it collapsed in her hand, causing the injury. She then dropped the bottle to the floor, and it shattered. Her husband later retrieved the pieces, most of which a glass technology consultant hired by Ball was able to reconstruct.
Conrad's expert witness, Glen Stevick, theorized that there were two contributing causes of the bottle's collapse: (1) a preexisting crack on the inside of the bottle "most of the way through the wall, maybe a half to three-quarters of an inch long," and (2) thinness of the glass in one area, which made it more likely the crack would fracture under pressure. He testified that Conrad's description of the "air like sound" and wetness on her hand and feet was consistent with a preexisting crack, and that without a preexisting crack the pressure Conrad described as having been placed upon the bottle could not have caused it to collapse. He also testified that a "squeeze test" used by Ball in the production of bottles whereby a roller is applied to each bottle while it rotates works well for detecting cracks where the pressure is applied, but "won't test for any flaws other than right where the roller is."
Ball's expert witnesses Frank Duncan (an employee of a Ball subsidiary) and Ronald Caporali (the glass technology consultant) testified that the breakage was caused by impact with a hard object, not by a preexisting *442 crack. They each described a telltale sign of a preexisting crack, called a "dwell mark," at the points where the crack stops, and said they found no evidence of dwell marks on the retrieved glass fragments.
Stevick conceded there was no physical evidence of a preexisting crack, but theorized this was because the crack was in an area where pieces of the broken bottle were missing from the reconstruction.
Before trial, Conrad settled with the seller (Lucky Stores, Inc.) and the bottler (H.A. Rider & Sons) for a cash payment of $50,000 and a guarantee of $125,000. A jury returned a special verdict of product liability against Ball in the sum of $275,000, finding that (1) there was a defect in the design or manufacture of the bottle, (2) the defect existed when the product left Ball's possession, (3) the defect was a cause of injury to Conrad, and (4) Conrad's injury was caused by a reasonably foreseeable use of the bottle. The court reduced the judgment by $50,000 based on the pretrial settlement. Ball filed a timely appeal from the judgment, challenging the sufficiency of the evidence, and Conrad filed a timely cross-appeal from the order reducing the judgment.
III. DISCUSSION
A. The Appeal[*]
.... .... .... .... .... .... .... .
B. The Cross-appeal
(1) On the cross-appeal, Conrad contends the court erred when it reduced her recovery by the full amount of the $50,000 pretrial settlement paid by the bottler and seller.
Under Civil Code section 1431.2, created in 1986 by Proposition 51, a personal injury defendant has no joint liability for noneconomic damages, but "shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault...." (Civ. Code, § 1431.2, subd. (a).) In Espinoza v. Machonga (1992) 9 Cal. App.4th 268 [11 Cal. Rptr.2d 498], the court held this means that where a defendant makes a pretrial cash settlement with the plaintiff, a nonsettling codefendant who sustains a money judgment is entitled to a setoff only for that portion of the settlement attributable to economic damages, and is solely responsible for his or her share of the noneconomic damages. "Thus, that *443 portion of the settlement attributable to noneconomic damages is not subject to setoff. To do otherwise would, in effect, cause money paid in settlement to be treated as if it was paid as a joint liability. This could not properly be done on a verdict and we see no basis why it should be done on a settlement." (Id. at pp. 276-277; accord, Regan Roofing Co. v. Superior Court (1994) 21 Cal. App.4th 1685, 1706-1708 [27 Cal. Rptr.2d 62]; In re Piper Aircraft (N.D.Cal. 1992) 792 F. Supp. 1189, 1190-1191.)
In Espinoza, one defendant agreed to a lump-sum cash settlement, and the other sustained a judicial arbitration award divided into economic and noneconomic damages. (Espinoza v. Machonga, supra, 9 Cal. App.4th at p. 270.) The appellate court held the correct method of determining the offset against the award was to calculate the percentage of the award attributable to economic damages in relationship to the entire award, apply that percentage to the settlement amount to determine the portion of the settlement attributable to economic damages, and then reduce the amount of the award by the economic damages portion of the settlement. (Id. at p. 277.)
Here, as in Espinoza, the lump-sum settlement was undifferentiated as to economic and noneconomic damages. Espinoza gave Ball the right to a partial setoff to the extent an economic damage portion of the settlement could be calculated. Ball contends, however, that Espinoza was incorrectly decided and the jury verdict in the present case was properly set off in the full amount of the pretrial settlement because Code of Civil Procedure section 877, which predates Civil Code section 1431.2, mandates that a release given in good faith "`to one or more of a number of tortfeasors claimed to be liable for the same tort ... shall reduce the claims against the others in the amount stipulated by the release ... or in the amount of the consideration paid for it whichever is the greater.'" We are persuaded, however, by the explanation in Espinoza that with the advent of Civil Code section 1431.2, "a personal injury plaintiff's valid `claim' against one such tortfeasor for noneconomic damages can never be the liability of `the others.' (Civ. Code § 1431.2, supra.) The payment of such a claim by one tortfeasor is not the payment of a claim for which `the others' might ever be held jointly and severally liable. Thus, there is no longer any such claim `against the others' to `reduce.'" (Espinoza v. Machonga, supra, 9 Cal. App.4th at pp. 274-275.)[2]
We conclude that Espinoza prescribes the correct method for determining the setoff to which Ball was entitled. The problem here is that, unlike in *444 Espinoza, the special verdict did not specify economic and noneconomic damages, but merely awarded an undifferentiated lump sum of $275,000. Thus it is impossible to apply the Espinoza method, as we cannot calculate the percentage of the jury award attributable to economic damages.
Conrad suggests we can resolve this problem by assuming the jury awarded the full amount of economic damages she claimed at trial $48,446.10 and using this amount in an Espinoza calculation. This would yield 17.62 percent as the percentage of the jury award attributable to economic damages, which, when applied to the settlement, would result in a setoff of $8,810 against the jury award. We do not, however, believe this is a satisfactory solution, for it requires wholly unsupported speculation as to the jury's decisionmaking process.
Rather, we conclude Ball waived any right to an offset by failing to propose a special verdict which differentiated between economic and non-economic damages. A defendant seeking an offset against a money judgment has the burden of proving the offset. (Frankfort etc. Co. v. California etc. Co. (1915) 28 Cal. App. 74, 86 [151 P. 176].) This is consistent with the general rule of evidence that "a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, § 500.) As the party seeking the offset, Ball had the burden of proving the facts essential to it. Under Espinoza which was decided before this trial one of those facts was the percentage of the jury award attributable to economic damages. Ball could have proved that fact by proposing an appropriate special verdict, but failed *445 to do so. This precluded any offset, for want of supporting facts. The jury verdict was not properly subject to an offset in any amount.
IV. DISPOSITION
The judgment is affirmed. The order reducing the amount of the judgment by $50,000 is reversed. Conrad shall recover her appellate costs.
Peterson, P.J., and Haning, J., concurred.
A petition for a rehearing was denied May 24, 1994, and the petition of appellant Ball Corporation for review by the Supreme Court was denied August 11, 1994.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part III A.
[*] See footnote, ante, page 439.
[2] We also find a modicum of support for this conclusion in the fact that the California Supreme Court denied a request for depublication of Espinoza, and then a month later depublished Romero v. Derdendzhayana (Oct. 27, 1992) B062996, which held that "[Code of Civil Procedure] section 877 requires an offset for preverdict settlements, regardless of the applicability of Civil Code section 1431.2, in order to prevent `double recovery.'" If the depublication of Romero suggests the Supreme Court believed that opinion "to be wrong in some significant way" (Grodin, The Depublication Practice of the California Supreme Court (1984) 72 Cal.L.Rev. 514, 515), the nearly contemporaneous order denying depublication of Espinoza would seem to suggest the Supreme Court approved of the case it chose to leave published. (People v. Dee (1990) 222 Cal. App.3d 760, 764 [272 Cal. Rptr. 208] [observing that Supreme Court had "made its views clear" by simultaneously denying review in one case and depublishing two other cases taking contrary position]; accord, People v. Saunders (1993) 5 Cal.4th 580, 607 [20 Cal. Rptr.2d 638, 853 P.2d 1093] (dis. opn. of Kennard, J.); Grodin, supra, at p. 521.)
We recognize that the Rules of Court state a depublished opinion "shall not be cited or relied on by a court or a party in any other action or proceeding...." (Cal. Rules of Court, rule 977(a).) However, two recent opinions from the Supreme Court have cited unpublished opinions for reasons other than reliance upon them. In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254, footnote 9 [19 Cal. Rptr.2d 698, 851 P.2d 1307], the majority cited a depublished concurring Court of Appeal opinion to indicate that the majority's analysis had been adapted from that opinion. In People v. Saunders, supra, 5 Cal.4th at page 607, a dissenting opinion cited two depublished Court of Appeal opinions for much the same reason we cite Romero to address the effect of orders affecting the publication status of multiple decisions. The message from the Supreme Court seems to be that unpublished opinions may be cited if they are not "relied on." (Cal. Rules of Court, rule 977(a).) That is our situation here. We cite Romero not to rely on it, but to discuss the effect of the depublication order vis-a-vis the order denying depublication of Espinoza. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263788/ | 336 A.2d 223 (1975)
STATE of Delaware
v.
Joseph A. PURCELL.
Superior Court of Delaware, New Castle.
March 26, 1975.
*224 Peter N. Letang, Deputy Atty. Gen., Wilmington, for State.
Michael F. Tucker, Wilmington, for defendant.
OPINION ON DEFENDANT'S MOTION FOR A NEW TRIAL
LONGOBARDI, Judge.
On January 21, 1975, the Defendant was tried for having in his actual physical control a motor vehicle while under the influence of intoxicating liquor. The jury returned a verdict of guilty. Thereafter, the Defendant timely filed a motion for a new trial based on the alleged error of the Court in allowing testimony on the results of a scientific test measuring alcohol in the Defendant's blood.
The facts as disclosed by the testimony indicated the arresting officer observed the Defendant's automobile parked along the shoulder of a highway and heard the motor running. The Defendant was lying across the front seat with his head on the passenger side of the vehicle. Based on observations made by the police officer, he placed him under arrest for having "actual physical control" in violation of 21 Del.C. 4176(a). The officer advised the Defendant about the "implied consent" law and told the Defendant that if he refused to submit to the test, he would lose his driving privileges for six months.
The Defendant contends that since the Defendant was arrested for having "in actual physical control a motor vehicle while under the influence,"[1] the Implied Consent Act was not applicable to his arrest because that statute applies only to a person who "drives"[2] a motor vehicle.
The State contends that 21 Del.C. 2740 should be construed as amended by implication because the two statutes; that is, 21 Del.C. 4176 and 21 Del.C. 2740, "conflict irreconciliably." In addition, the State *225 contends 21 Del.C. 4176 was amended[3] and that portion of the amendment relating to a finding of guilt when the blood alcohol level reaches 10/100 of one percentum indicates a "legislative intent" to encompass all of the violations possible under 21 Del. C. 4176 into 21 Del.C. 2740. Finally, the State contends the Defendant consented to the test, therefore, it should be admissible. The State contends that is especially so based on Schmerber v. California, 384 U. S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), by which authority the State alleges they could, after an arrest, take a blood sample from the Defendant over his objection with the results of such test being admissible. Following this logic, the State contends that the results of the test are admissible regardless of the Defendant's approval or how it was obtained.
The first issue to be resolved is whether a person arrested for having "actual physical control" in violation of 21 Del.C. 4176(a) is a person amenable to the provisions of 21 Del.C. 2740 which refers only to persons arrested for "driving" under the influence.
To determine this issue, the Court must refer back to the forerunner of our present 21 Del.C. 4176(a). That statute was 21 Del.C. 4111 which provided in pertinent part as follows:
"Whoever operates a motor vehicle while under the influence ..."
Construction of the word "operates" was provided by the Superior Court in State v. Pritchett, Del.Super., 3 Storey 583, 173 A. 2d 886 (1961), and later analyzed by our Supreme Court in McDuell v. State, Del. Supr., 231 A.2d 265 (1967). In general, it may be assumed that State v. Pritchett (supra) gave the word "operates" a broad meaning which encompassed the word "drives." It included situations of starting the engine or merely manipulating the mechanical or electrical apparatus or doing any other similar act which would result in engaging the operative machinery apart from motor machinery. It obviously would include the latter. 47 A.L.R.2d 579. In the Pritchett case (supra) the Defendant was found in the driver's seat of a stopped automobile slumped over the steering wheel. The car's engine and lights were on. After being aroused, the Defendant turned off the ignition and thus the motor. The car had not moved.
In 1964, 21 Del.C. 4111 was repealed and replaced by 21 Del.C. 4176. The wording of the new statute differed remarkably from its predecessor 21 Del.C. 4111. The new section prohibited "driving." In construing the meaning of that term, our Supreme Court by present Chief Justice Herrmann decided that "driving" was a more restrictive word than "operates" and stated the General Assembly presumably was aware of the distinction between the words of "drives" and "operates" because of the Pritchett case (supra) and they made the change intending thereby to remove "standing" violations from the operation of the statute. McDuell v. State (supra) pages 267, 268. On April 30, 1969, Delaware's Implied Consent Law became effective. 57 Delaware Laws, Chapter 52, Section 1. By that Act, the Legislature adopted the then present language of Section 4176 by saying:
"Any person arrested for driving..." 21 Del.C. 2740.
Then just eight days later an amendment to Section 4176 added the words "or has in actual physical control" to the already present "drives." The Legislature by this Amendment expanded the more restrictive provision "drives." This has been confirmed *226 by the continued use of a charge by the Superior Court which defines the new words as connoting "exclusive physical power and present ability to operate, move, park or direct whatever use or non-use was to be made of the motor vehicle at the moment." Cf. State v. Webb, 78 Ariz. 8, 274 P.2d 338 (1954). Apparently, standing violations were now part of 21 Del.C. 4176(a). But there was no amendment to the Implied Consent Law. Even after June 8, 1970 when Section 4176 was further amended by adding the word "operates," Section 2740 still was not amended. Thereafter, the Legislature amended Section 4176 at least four additional times but never once amended Section 2740.
To say it was an oversight is to refuse to recognize the facts and two obvious statutory construction rules: (1) whenever the Legislature enacts a provision, it is presumed to have had in mind the previous statutes relating to the same subject matter, State v. Hollobaugh, Del. Super., 297 A.2d 395 (1972); and (2) Legislative language is interpreted on the assumption that the Legislature is aware of judicial decisions. Scribner v. Chonofsky, Del.Ch., 310 A.2d 924 (1973).
The intent of the Legislature in the use of the words "operates" and "drives" has been commented on by our own Supreme Court. McDuell v. State (supra). The conclusion one must reach is that the Legislature was aware of the liberal interpretation of "operates" as decided by Pritchett (supra) and, if that were not enough, must surely have been aware of McDuell v. State (supra) in 1967. After McDuell (supra) there could have been no mistake in anyone's minds about the differences between those two words. The language of Section 2740 is clear and unambiguous. The words should be given their literal meaning.
The State contends that the statutes should be construed as covering the same subject matter and, in spite of the diverse literal interpretation or meaning of the words, they should be read consonantly because of "implied amendment." They cite Rickards v. State, Del.Supr., 6 Terry 573, 77 A.2d 199, 203, as follows:
"Amendments by implication are not favored but when a subsequent Act is so inconsistent with and repugnant to a prior Act that reconciliation is impossible, an amendment by implication of the prior Act necessarily follows."
In response to that proposition, one must take note that Section 2740 was not inconsistent with or repugnant to the then existing Section 4176(a); both used the words "drives." There is no subsequent act to interpret except 4176(a) which, after amendment, certainly cannot be construed as being inconsistent or repugnant to Section 2740. Instead, Section 4176 became broader, more expansive and not so restrictive. The State's other citations in this regard are inapposite or not controlling.
The State's next argument is that the 1970 amendment to Section 4176(a), to wit:
"Any person who drives, operates or has in actual physical control a motor vehicle while such person's blood has reached a blood alcohol concentration of 10/100 of one percentum or more, by weight, as shown by a chemical analysis of a blood, breath, or urine sample taken within two hours of the alleged offense shall be guilty of this section;" 57 Delaware Laws, Chapter 613, Section 1;
indicates the Legislature contemplated the use of Section 2740 to secure evidence of intoxication in instances of "actual physical control" or "operates" to establish the violation. The State says, "How else could the `blood alcohol concentration' be procured or determined unless the Implied Consent Act was available in these situations." At least one answer is obvious: that is, by voluntary consent. Another way is for the Legislature to make Section *227 2740 fully amenable to all the provisions of Section 4176(a).
The Court concludes that Delaware's Implied Consent Law is applicable to persons who had been arrested for "driving" under the influence. It is inapplicable to those who have been arrested for having "actual physical control" in violation of Section 4176(a).
The State finally contends that assuming arguendo that 21 Del.C. 2740 is not applicable in this case, the results of the test should not be suppressed because the Defendant consented to the test. This contention is based on an improper premise because the Defendant did not consent voluntarily. The officer advised the defendant that he would lose his license for an additional six months when, in fact, that was false. (There was no testimony that the police officer acted intentionally.) He obtained the Defendant's approval based on a false premise and, obviously, in violation of 21 Del.C. 2740.
The State contends that whether the Defendant consented or not, the results would be admissible under Schmerber v. California (supra). In Schmerber (supra) the Defendant was arrested for driving under the influence and, over his objection, a blood sample was taken by a doctor in a hospital setting. The gist of the decision is that such a "search" or "intrusion" is justified under the specific circumstances of that case and that the Fourth Amendment was not violated when it is made in a proper manner. Schmerber v. California (supra), 384 U.S. 757, 86 S.Ct. page 1834. The proper manner referred to above relates to the sample being taken by a physician in a hospital environment according to accepted medical practices. Schmerber (supra) must be read in the very limited context of the actual facts of that case. 384 U.S. 757, 86 S.Ct. page 1836.
The Court stated that it was not presented with "the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made... for example ... by police in the privacy of the stationhouse." 384 U.S. 757, 86 S.Ct. page 1836. Moreover, besides differing on the facts, Schmerber (supra) and the case sub judice involve different legal issues. The relevant sections of Schmerber (supra) were concerned with the prohibitions of the Fourth Amendment; this case deals with the implications of 21 Del.C. 4176 and 21 Del.C. 2740.
In a similar situation involving the law involved in this case, the Supreme Court of the State of Delaware indicated that the threat of arrest made the Defendant's consent involuntary. Bertomeu v. State, Del.Supr., 310 A.2d 865 (1973). Can this Court say that the threat of losing one's license for six months was less compelling? I think not.
If this Court is to give meaning to the "exclusionary rule" as ordered by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081, if we are to be ever vigilant of the complex of values sought to be protected by that rule and finally, if we are to establish law which disfavors methods of obtaining evidence which the exclusionary rule was designed to curtail, this Court cannot countenance the introduction of evidence obtained by giving a citizen of this State false or misleading information. Gouled v. U. S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Bumper v. N.C., 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). To allow it would lend our authority and approval to the State obtaining evidence by every trick and artifice imaginable. This is not to say that our State officials would indulge in such conduct. This does say we must not allow the basis for it to exist.
In addition, when the provisions of the Implied Consent Act are involved and evidence obtained thereunder, the police must have acted in compliance with every *228 provision of the Act. State v. Wells (Del.Super., unreported decision, Judge Vincent A. Bifferato, 1116 Cr.A. 1973 dated July 23, 1974). The Supreme Court in Bertomeu (supra) decided the same. It said:
310 A.2d p. 866. "The appellant argues that because the blood test was not performed in accordance with the Delaware Implied Consent Act, the results must be excluded. We agree."
This Court also concludes that the blood analysis test results in this case were obtained in violation of the Delaware Implied Consent Act and the results should have been suppressed. State v. Rickards (supra).
Defendant's motion for a new trial is granted.
It is so ordered.
NOTES
[1] 21 Del.C. 4176(a) Any person who drives, operates or has in actual physical control a motor vehicle while such person's blood has reached a blood alcohol concentration of 10/100 of one percentum or more, by weight, as shown by a chemical analysis of a blood, breath, or urine sample taken within four hours of the alleged offense, shall be guilty under this section.
[2] 21 Del.C. 2740 Any person arrested for driving a motor vehicle while under the influence of intoxicating liquor upon the public highways in this State shall be deemed to have given his consent to submit to a chemical test of his breath, blood, or urine for the purpose of determining the alcoholic content of his blood.
[3] 57 Delaware Laws, Chapter 613, Section 1 Any person who drives, operates or has in actual physical control a motor vehicle while such person's blood has reached a blood alcohol concentration of 10/100 of one percentum or more, by weight, as shown by a chemical analysis of a blood, breath, or urine sample taken within two hours of the alleged offense shall be quilty of this section. This provision shall not preclude a conviction based on other admissible evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338816/ | 419 S.E.2d 447 (1992)
187 W.Va. 379
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Gary WHEELER, Defendant Below, Appellant.
No. 20286.
Supreme Court of Appeals of West Virginia.
Submitted January 21, 1992.
Decided May 28, 1992.
*449 Kristen L. Keller, Deputy Pros. Atty., Beckley, for appellee.
C. Cooper Fulton, Kanawha County Public Defender, Charleston, for appellant.
*448 BROTHERTON, Justice:
The appellant, Gary Wheeler, was convicted of malicious wounding, two counts of attempted murder, and first-degree murder as a result of incidents which took place between 2:00 a.m. and 3:00 a.m. on February 21, 1990, in the parking lot of a Super 8 Motel in Beckley, West Virginia. Wheeler turned himself in to police later that day. A jury trial was held from August 13-15, 1990, and Wheeler subsequently received sentences of life without mercy and four-to-twenty years in the State penitentiary. He now appeals his conviction.
In order to facilitate our discussion of the issues raised on appeal, we will briefly recount the events leading up to the shootings. It is apparent from the record that the parties in this case were involved in several encounters in the late night and early morning hours of February 20 and 21, 1990. The appellant, Gary Wheeler, spent the evening drinking at various bars in Raleigh County with Richard Spencer and Gerald Day. According to the appellant, both Spencer and Day were drunk.
That same night, Kevin Prunty, Gary Fluharty, and Eugene Chipps were drinking at Eden's Lounge in the Holiday Inn in Beckley. All three men were truck drivers who were working for a Harrisville, West Virginia, company. Evidence presented at trial indicated that Kevin Prunty was very drunk. At closing time, Wheeler, Spencer, and Day were in the parking lot making arrangements to meet three women at another club. Eugene Chipps was also talking with one of these women and obtained her phone number. Either Wheeler or someone in his group yelled a derogatory remark out the car window as they were leaving, and Fluharty, Prunty, and Chipps began chasing the car on foot.
A confrontation followed when the car stopped at a red light. Fluharty slapped the car with his hand and asked whether there was a problem. Wheeler put the car in reverse and then backed up, knocking Prunty down. Wheeler then proceeded through the intersection, and the truckers watched as the car pulled into the nearby Check Mark Club. According to Chipps, he, Fluharty, and Prunty "decided to go see what the problem really was." Kevin Prunty was furious about being hit by the car, and he got a tire iron out of his truck. The three men then got into Fluharty's truck and drove to the Check Mark Club, which was closed. Kevin Prunty ran toward the car being driven by Wheeler and hit the hood and the passenger side of the vehicle with the tire iron. The three women arrived at about this time, but were apparently frightened and went back to Eden's Lounge. Prunty and friends returned to the Super 8 Motel in Fluharty's truck, while Wheeler, Spencer, and Day went to a nearby Omelette Shoppe.
Lisa Stover was a waitress who was working in the Omelette Shoppe that night. According to her trial testimony, she had known Wheeler for about two months, and they had dated for approximately two weeks. Wheeler came into the Omelette Shoppe at around 3:00 a.m., accompanied by two men, one of whom remained in the car. Wheeler told Stover that there had been a fight at the Holiday Inn and that someone dented the car with a ball bat. Stover testified that Wheeler was quite angry and upset, and that she offered him coffee and tried to get him to calm down. *450 When Wheeler's friend, Spencer, emerged from the restroom, Wheeler said that he was going to go mess the men up and that he would be back in fifteen minutes.
Wheeler returned first to the Eden's Lounge parking lot at the Holiday Inn. One of the three women, Debbie Williams, asked Wheeler why the men had started hitting the car. Wheeler reportedly told these women that he was going to see what the guy's problem was and that he would be back. The three women waited for a while, but eventually left.
When the truckers returned to the Super 8 Motel, Fluharty parked to the left of the motel in a gravel parking lot. Chipps talked briefly with the desk clerk, Mary Farruggia, and told her about what had happened that evening. Prunty remained in the parking lot and was apparently still carrying the tire iron. Chipps saw the car driven by Wheeler enter the parking lot and, according to Mary Farruggia, Chipps said, "Oh, God, it's them." Farruggia saw Chipps and Fluharty walk side by side towards the car. Two men suddenly stepped out from the driver and passenger side doors. The driver, Wheeler, had a gun and started shooting. Chipps stated that he "felt" a bullet go by when he was about fifteen to twenty feet from the car, and Fluharty yelled, "Chip, I've been shot."
Kevin Prunty testified that when he first saw the car driven by Wheeler pull into the Super 8 parking lot, he hid between the trucks. When he realized that Wheeler had a gun, he yelled to Fluharty, "Run, he's got a gun." Prunty heard one shot and then he was hit, at which time he dropped the tire iron. According to Chipps, after Wheeler stopped shooting, Wheeler said "sorry," and then "he just got in and shut the door and drove off."
At trial, the State called twenty-five witnesses and introduced thirty-nine exhibits as evidence to support its theory that on February 21, 1990, while driving Richard Spencer's car, Wheeler followed the victims to the Super 8 Motel parking lot, circled behind the motel, stopped by the entrance, stepped out of the driver's seat holding Spencer's semi-automatic weapon, and immediately fired at least five rounds at the victims, injuring both Prunty and Fluharty before leaving the scene. Fluharty sustained massive neck wounds and died from his injuries two days later.
Lisa Stover testified that several days after Wheeler was arrested, he called her from the Raleigh County Jail. Stover stated that she asked what happened on the night in question. According to Stover, Wheeler "said that he killed the guy." When Stover told him she could not believe it, "he said that he was pretty mad that night."
The appellant presented no evidence and did not testify at trial. However, defense counsel attempted to characterize Wheeler's actions as "excusable homicide by misadventure," rather than self-defense. The defense maintained that Fluharty, Chipps, and Prunty ran toward Wheeler's car after he circled the motel and that Prunty still had the tire iron in his hand as he approached the car. These men continued to approach even when Wheeler stood outside of the car with the gun in his hand and fired two warning shots. Then, as Wheeler was getting back into the car, the gun accidentally discharged three more times, and he shot both Prunty and Fluharty by accident. The defense admits that no evidence was presented to support its theory that Wheeler fired "warning shots," and then "accidentally" discharged the gun, but states that this was because neither the defendant nor Gerald Day testified at trial.
On appeal, the appellant's primary assignments of error are related to an allegation that the State withheld certain witness statements which contained exculpatory information until after the witnesses testified on direct examination. The appellant argues that this constitutes reversible error because it deprived him of his constitutional right to due process of law.
The appellant explains that because he did not receive the statements until after the trial began, defense counsel was forced to request a recess after each direct examination in order to review the witness's statements. However, the appellant argues that because each of the statements *451 contained exculpatory information, they were subject to early disclosure.[1]
On May 29, 1990, defense counsel filed a discovery motion requesting that the prosecution disclose any evidence which may be relevant, favorable, or tend to exculpate the appellant, as well as the pretrial production of all witness statements which would be discoverable under Rule 26.2 of the West Virginia Rules of Criminal Procedure. On July 26, 1990, the trial court denied the appellant's motion for early disclosure of certain witness statements, but advised counsel that after the witness had testified, "you will be given ample opportunity to study the statement before you are required to cross-examine."
The prosecution's position, then and now as the point is once again raised on appeal, is that witness statements do not have to be provided under Rule 26.2 until after that witness testifies on direct examination. We agree. The rule clearly provides that:
"After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the State or the defendant and his attorney, as the case may be, to produce for the examination and use of the moving party any statement of the witness that is in their possession that relates to the subject matter concerning which the witness has testified." Rule 26.2, West Virginia Rules of Criminal Procedure.
Syl. pt. 1, State v. Tanner, 175 W.Va. 264, 332 S.E.2d 277 (1985).
In its initial July 6, 1990, response to a defense request for the defendant's statements, the State provided the following statement:
The defendant with Richard Spencer at the Omelette Shoppe on Harper Road discussed the fact that they had a dispute with the victims and that they were going to take care of it, or "f k them up." In the car before the murder, the defendant told Spencer he wished he had a gun. Wheeler after the shooting told his two companions that they were all in trouble, going to prison and that they should say nothing. The defendant suggested a fabricated story, to claim that the gun was "just laying there" in the car and had just been purchased.
The "f k them up" statement was not directly attributed to the appellant, and the appellant charges that the prosecution was deliberately vague in its discovery response, indicating only that Spencer and Wheeler discussed "f king them up" without specifying whether it was Wheeler or Spencer who made the actual statement.[2]
On August 11, 1990, two days before the trial was scheduled to begin, the prosecutor called to inform defense counsel about a statement made by the defendant that had not previously been provided. The appellant complains that the prosecution did not tell defense counsel during that phone conversation that Lisa Stover was actually attributing the statement about "f king them up" to Wheeler, rather than his codefendant, Richard Spencer.
*452 An in camera hearing was held on several defense motions before the trial began. At that time, defense counsel renewed motions to force the prosecution to disclose certain witness statements prior to trial testimony and to suppress all statements made by the defendant which were not disclosed during discovery. The defense objected to the lateness with which it claimed to have learned that Lisa Stover attributed the "f k them up" statement to Gary Wheeler. However, the trial court denied the defense motion to suppress Lisa Stover's testimony about this statement.
In response to the appellant's charge that the prosecution withheld what the defense characterizes as exculpatory information, the prosecution points out that the defense first received notice during testimony given at a preliminary hearing on March 5, 1990 five months before trial that it was Wheeler who stated that he would "mess up" the victims. Also, in pretrial testimony at the in camera hearing, Lisa Stover stated that Wheeler's phrase was "mess up" and that the co-conspirator, Spencer, said "f k up." Finally, the State submits that it is inconceivable that the defense was surprised, hampered, or prejudiced in any manner by Ms. Stover's testimony that Wheeler's precise terminology was actually "mess up", as opposed to "f k up."[3] We agree. There is simply no evidence in the record to support defense counsel's contention that the State withheld exculpatory evidence or that the appellant was in any manner denied his constitutional rights.
The defense relies primarily on Lisa Stover's statements to support its contention that the prosecution withheld exculpatory evidence, maintaining that Stover's statements were the only evidence relating to the critical element of premeditation. In syllabus point 4 of State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982), this Court stated that "[a] prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution." We conclude that there was no exculpatory evidence which the prosecution was obligated to disclose in this case.
Moreover, we do not believe the prosecution's refusal to disclose Lisa Stover's statement prior to her testimony left the defense without adequate time to prepare an effective cross-examination. The defense claims that because the prosecution would not disclose certain statements to them prior to her testimony, Lisa Stover was not questioned about her "crucial" prior inconsistent statements. However, our careful review of the record reveals that defense counsel knew about potential inconsistencies in Stover's various statements long before she was called to testify.
We previously discussed how, on August 13, 1990, prior to Stover's in camera testimony, the defense requested that it be afforded an immediate opportunity to inspect Stover's statement to the police. *453 Even then, before trial, the prosecution argued that the defense had no right to claim "surprise":
DEFENSE COUNSEL: The other problem is that at the preliminary hearing and all previous hearings they [the State] said that the girl at the Omelette Shoppe [Lisa Stover], who they relied on heavily at the preliminary, had given statements. Okay. We want these statements now, since [the prosecution] is saying this is one of the statements attributed to Gary Wheeler. We understood, at the preliminary, that she [Stover] attributed otherstatements to Gary Wheeler.
PROSECUTOR: Yeah. The only other conversation is, which you've known forever, which is that Wheeler and Spencer go into the Omelette Shoppe right before the shooting, they're angry and say, basically, someone messed up our car, we're going to go mess them up. And you've known that forever.... under the discovery rules, so long as the State isn't withholding information and the defendant is not surprised, they have no grounds to suppress. She's here.
DEFENSE COUNSEL: Your honor, ... I don't think we're asking for a lot and I think that the rule does permit it ... we want everything that the State has. As far as statements that [the prosecution] has, we want it all because, at this point, because of the lateness ... but what we want is we want to be able even for the in camera hearing, and for the preparation, for our opening, for everything, we want to know what she told the police.
It is clear from this exchange that defense counsel already knew that Stover's initial statements to the police differed somehow from certain subsequent statements. For this reason, the defense cannot possibly claim now that "the State's withholding of the witness statements until after the witnesses' direct examinations deprived the defendant of the time to prepare for and achieve effective cross-examination."
In syllabus point 2 of State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980), this Court stated that when a trial court grants a pretrial motion requiring the prosecution to disclose evidence, "non-disclosure by the prosecution is fatal to its case where such non-disclosure is prejudicial. The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case." This same reasoning should certainly apply to a situation in which the court did not order that certain materials be disclosed early. In this case, we find no prejudice. The defense simply cannot claim that it was surprised on a material issue. If cross-examination of Lisa Stover was ineffective, it was not because the prosecution withheld exculpatory evidence. There was obviously a decided lack of any evidence which was favorable to the appellant in this case.
Next, we consider the appellant's contention that the trial court committed reversible error by admitting twelve "gruesome" photographs and two "blood-stiffened garments" into evidence. The appellant maintains that these items were not essential to the State's case.
The disputed photographs showed trails of blood and basically depicted Kevin Prunty's location at the time of the shooting, as well as the route he took back to the hotel room following the shooting, i.e., blood on pavement, blood on a door, blood on carpet, etc. In State v. Rowe, 163 W.Va. 593, 259 S.E.2d 26, 28 (1979), this Court discussed what constitutes a "gruesome" photograph:
Photographs that show much gore and blood, or emphasize contorted facial or bodily features, or depict a body after autopsy procedures; and color photographs and enlargements of particular areas of a corpse magnifying its revolting aspects will be more likely condemned as gruesome.
In State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980), we determined that:
The fundamental rationale barring the introduction of gruesome photographs is that their impact on the jury is such that it will become so incensed and inflamed at the horrible conditions depicted that it *454 will not be able to objectively decide the issue of the defendant's guilt.
In the case now before us, the trial judge did not consider the photographs to be of a gruesome nature, and he stated further that the photos would simply serve to show the jury things that they had already observed during the jury view. In State v. Deskins, 181 W.Va. 112, 380 S.E.2d 676 (1989), at syllabus point 4, we recognized that:
"`As a general rule photographs of persons, things, and places, when duly verified and shown by intrinsic evidence to be faithful representations of the objects they purport to portray, are admissible in evidence as aids to the jury in understanding the evidence; and whether a particular photograph or groups of photographs should be admitted in evidence rests in the sound discretion of the trial court and its ruling on the question of the admissibility of such evidence will be upheld unless it clearly appears that its discretion has been abused.' Syl. pt. 1, Thrasher v. Amere Gas Utilities Co., 138 W.Va. 166, 75 S.E.2d 376 (1953), appeal dismissed, 347 U.S. 910, 74 S. Ct. 478, 98 L. Ed. 1067 (1954)." Syllabus Point 2, State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978).
We are not persuaded that the lower court abused its discretion by admitting these photos into evidence and, therefore, we find no reversible error on this point.[4]
The appellant's remaining assignments of error relate to charges of prosecutorial misconduct. First, the appellant argues that the prosecutor "abdicated her quasijudicial role" and inflamed the passions and prejudices of the jury when she elicited irrelevant testimony which was calculated to arouse the jury's sympathies for Gary Fluharty's wife. In addition, the appellant contends that the prosecutor appealed to the fears of the jury by repeatedly referring to the gun as an "assault weapon", and by eliciting testimony which dwelled on particularly gruesome or morbid aspects of the case, such as Kevin Prunty's "trail of blood" and Prunty's own testimony that one of the bullets still remained in his body.
The State responds to these allegations by stating that Gary Fluharty's widow simply testified as to his identity and his date of death, both of which are relevant to any murder case. Further, the State argues that the police officer's testimony about "the trail of blood" was necessary to prove Kevin Prunty's location when he was shot and his route after he was shot. Finally, the State maintains that the prosecutor accurately described the Cobray nine millimeter semi-automatic pistol used by Wheeler as an "assault weapon," and not only was there no objection to this description, but defense counsel used the same description. The State argues that the defense did not object to either this testimony or that of victim Kevin Prurity, and thus error, if any, was waived.
With regard to the final two allegations, the State is correct in its assertion that any error was waived by virtue of the defense's failure to object. " `Error in the admission of testimony to which no objection was made will not be considered by this Court on appeal or writ of error, but will be treated as waived.' Syl. pt. 4, State v. Michael, 141 W.Va. 1, 87 S.E.2d 595 (1955)." Syl. pt. 7, State v. Davis, 176 W.Va. 454, 345 S.E.2d 549 (1986). Moreover, we find nothing particularly inflammatory about the police officer's so-called "trail of blood" testimony. As we have already noted, this testimony was relevant to show the victim's relative position at the time of and following the shooting.
Finally, we note that the prosecution correctly described the weapon the appellant used in his assault upon the truckers as a "Cobray nine millimeter semi-automatic pistol." This fact was confirmed by defense counsel's own discussion of the gun in his opening statement:
... it is a nine-millimeter, semi-automatic. The paper called it an uzi. The prosecutor talked assault weapon. You'll see the gun; it's a pistol. It's not an ordinary revolver or anything like that, it is *455 bigger than that, but it fires no differently than any other gun. You have to pull the trigger each time you want to fire it, although the testimony will be that the type of gun it is, it will fire faster than a revolver.
Although the appellant objects to the prosecution's allegedly numerous references to the gun as an "assault weapon," we find that the prosecutor's description of the gun as such was based in fact and was not out of line or in any way inflammatory.
Far more troubling to this Court is the State's decision to have Gary Fluharty's widow testify in this case. Defense counsel objected when the prosecution called Kim Fluharty to testify. Both parties then approached the bench, and the defense asserted that Mrs. Fluharty was not present at the time of the shootings and could offer no relevant information. The prosecution stated that Mrs. Fluharty, a registered nurse, would testify as to identification of the deceased, explaining that "then, I don't have to call the doctor at the Charleston hospital about when they had to take him off the ventilator." Defense counsel reiterated its objection, maintaining that the prosecution's sole purpose in having Mrs. Fluharty testify was to arouse sympathy for her as a widow.
The trial judge cautioned the prosecutor not to ask Mrs. Fluharty questions designed to do just that, such as whether she misses her husband. The prosecution's direct examination of Mrs. Fluharty proceeded without any suggestive or inflammatory remarks. Mrs. Fluharty stated that she and Gary Fluharty had been married for eight months and she identified her husband by means of a portrait of them that was admitted into evidence.[5]
Generally, evidence that a homicide victim was survived by a spouse or children is considered inadmissible in a homicide prosecution where it is irrelevant to any issue in the case and is presented for the sole purpose of gaining sympathy from the jury. For this reason, courts tend to look upon testimony by a surviving spouse with disfavor. However, the admission of such evidence does not necessarily constitute reversible error.[6]
In State v. McCausland, 82 W.Va. 525, 96 S.E. 938 (1918), the State used the widow of a deceased as a witness, over the objection of the accused. The widow testified that her late husband was the father of several children, including one who was born after his father's death. The defendant's *456 conviction was reversed by this Court on several grounds, one of which was the use of this testimony:
This evidence did not in any way prove any issue involved in the case. The trouble between the accused and the deceased did not arise out of any matter with which his family was in any wise connected. The evidence was patently introduced for the sole purpose of creating sympathy in the minds of the jury for the widow and the orphan children, manifestly an improper purpose. This evidence should not have been admitted.
Id., 96 S.E. at 940.
Several years after McCausland, in State v. Sauls, 93 W.Va. 276, 116 S.E. 391 (1923), the defendant asserted various grounds for reversal of his second-degree murder conviction, among them the fact that the wife of the deceased was allowed to testify that they had a family.[7] Although the defendant's conviction was reversed and he was awarded a new trial, the reversal did not result from this alleged error. The Court stated:
Of course the fact that deceased and the witness had a family had no direct bearing on the guilt of the accused, except perhaps on the theory that a man with a family would not likely be engaged in an effort to debauch defendant's wife and ruin his home, according to defendant's theory, justifying or excusing him for his killing. We doubt whether the evidence according to the strict rule, should have been received, but under the circumstances, we have no idea that the verdict of the jury was influenced thereby, and it is quite too technical a question on which to base a reversal.
Id., 116 S.E. at 395 (emphasis added).
We note that when confronted with this issue, other courts strongly consider the weight of all the evidence presented at trial, as well as the manner in which the objectionable and perhaps improper references to the victim's family were made. For example, in People v. Hyde, 1 Ill.App.3d 831, 275 N.E.2d 239 (1971), the widow of a murder victim was called by the State for the purposes of identification. The woman testified that she was the widow and that she and the deceased had six girls, two of whom still lived at home. She identified four photographs of the deceased, with two recent photos showing him either holding or sitting with a child in his home.[8]
The widow also testified that she identified her husband's body at the hospital. Defense attorneys did not object to the widow's testimony concerning the family of the deceased. Additionally, two different prosecutors made separate remarks alluding to the victim as an innocent man with a wife and children, just trying to do his job and earn his living.
On appeal, the Court cited the well-established rule that "it is improper for a prosecutor to refer to the family of a murder victim, whether such reference be made by evidence or in argument." Id., 275 N.E.2d at 245. However, the Court went on to reason that:
... the mere fact that evidence of a victims wife and family appears incidentally in the trial or is the subject of comment by the prosecutor in his argument does not automatically require reversal. The materiality of the testimony or comments, and the manner of its presentation must be considered ... It is proper to inquire to what extent, for what reason and to what effect testimony or comments regarding the deceased's family are advanced.
Id. The Court also noted that:
[T]he prosecutor made no attempt to dwell upon or draw out the testimony *457 regarding the deceased's family. No attempt was made to present it as an issue in the case or a matter proper to be proven and considered. Its materiality was in no way suggested. Its presentation was incidental to the matter of identification of deceased and its effect upon the outcome of the trial minimal.
Id. at 245-46. Thus, the Court did not find reversible error on this point. Instead, the Court emphasized that "[t]he conviction here is not based upon circumstantial evidence but upon eyewitness testimony and positive identification." The Court concluded that "... the conviction of defendant was the result of the strong evidence of guilt and did not result from any passion or prejudice that may have been engendered by improper evidence and argument regarding deceased's family." Id. at 246.
As we previously noted, the prosecution in the case now before us maintains that Mrs. Fluharty was called to testify solely for the purposes of identifying the deceased and establishing his date of death. Our review of the record confirms that her testimony was indeed limited in this respect. Furthermore, we can discern no attempts by the prosecution to exploit her grief so as to tug at the heartstrings of the jury. In syllabus point 2 of State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978), this Court explained that:
Great latitude is allowed counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice or mislead the jury.
Because of the great latitude that counsel is permitted in presenting its case, and because the State presented overwhelming evidence of Wheeler's guilt, we do not believe that the fact that Mrs. Fluharty was permitted to testify constitutes adequate grounds for reversal. However, we strongly caution the prosecution against the future use of this type of potentially incendiary testimony. In a closer case, the mere use of such testimony could possibly justify reversal.
We have reviewed the errors asserted by the appellant and found none which warrant reversal. Therefore, we hereby affirm the appellant's convictions.
Affirmed.
NOTES
[1] According to the appellant, the statements of Debbie Williams, Lisa Stover, Mary Farruggia, Kevin Prunty, and Eugene Chipps all contain evidence which supports his claim that he was preparing to act in self-defense when the shootings occurred, including evidence that (1) Kevin Prunty was armed with a large tire iron immediately preceding the shooting, (2) that Prunty used the tire iron to hit the car Wheeler was driving earlier in the evening, (3) that Fluharty, Chipps, and Prunty were the aggressors in various incidents which occurred throughout the early morning hours, and (4) that these three men were either walking or running toward Wheeler's car and were quite close to it immediately preceding the shooting.
[2] In a letter dated August 3, 1990, the prosecution informed defense counsel that it also intended to introduce the following statements made by Wheeler before the shootings: "You all don't know who you're f king with" and "I'm not going to let them get away with f king up my car I'm gonna f k them up." Additionally, the prosecution provided these statements that it alleged Wheeler made after the shootings: "It'll be hard to say it's self-defense when I've shot one of them in the face"; "I'll be goddamned if I'll turn myself in I'm going to Florida"; and "I'm Moundsville bound, buddy."
[3] In her initial voluntary statement several hours after the shootings, Lisa Stover told the police that "the other guy" [Spencer] said "... he was going to f k em up." During a preliminary hearing on March 5, 1990, Detective Pack, one of the investigating officers in this case, referred to an unidentified source who was working in the Omelette Shoppe that evening. Although Lisa Stover was not referred to by name during this hearing, defense counsel was no doubt aware of her identity. Detective Pack stated that it was Gary Wheeler who did most of the talking to the "informant." When asked if Wheeler said anything about why he was going back to the Super 8, Pack responded that, according to the informant, "[h]e just stated that they had had a problem earlier and he was going to go down and mess them up."
In another statement taken by defense investigator A.C. Bartlett on April 4, 1990, Lisa Stover said that, "Gary didn't make any comment about hunting the other guys. The guy with Gary said he was going to f k the guys up and Gary said to him no, calm down a little bit."
At the pretrial in camera hearing, defense counsel asked Stover specific questions about her statement to Bartlett. Stover was asked, "With regard to the statements of going to mess up these other individuals, what specifically do you recall Gary Wheeler saying?" Stover said, "He said he was going to go mess them up." Stover also indicated that Spencer said, "We're going to go f k them up."
[4] With regard to the admission of Prunty's blood-soaked clothes, the State maintains that although they were admitted into evidence, they remained hidden from the jury's view and were not included among the exhibits given to the jury during its deliberations.
[5] The entire text of Kim Fluharty's testimony is as follows:
Q. Would you state your name, please, ma'am? A. Kim Fluharty. Q. Where do you live, Mrs. Fluharty? A. 335 South Court Street, Harrisville. Q. You were married to Gary Fluharty; is that right? A. Yes. Q. And how long had you and Gary Fluharty been married before he was killed? A. Eight months.
Q. How are you employed? A. I'm a nurse at St. Joe Hospital. Q. Is that up in the Harrisville area? A. No, in Parkersburg. Q. I'm going to show you a photograph that has been marked for identification as State's Exhibit 2 for identification purposes. Would you tell us who those people are, looking at that photograph? A. Gary and me. Q. In the month of February, 1990, and I guess for a long period before, your husband was employed with Rutherford Trucking; is that right? A. Yes. Q. And then on the early morning hours of February 21, 1990, did you come to Beckley, West Virginia. A. Yes, I did. Q. And did you receive a call that made you come to Raleigh General Hospital. A. Yes. Q. Now, when you got to Raleigh General in the early morning hours of February 21, 1990, was Gary still at the hospital here? A. No. They had life-flighted him to CAMC in Charleston. Q. And so where did you go then, to the Charleston Hospital? A. Yes. Just as soon as we got there, they told us, and we left. Q. When you say "we," who were you with? A. My mom and my aunt and Kevin's wife, Carolyn. Q. Kevin Prunty's wife? A. Uh-huh (yes). Q. When you got to the hospital in Charleston, what were they doing, was he in surgery, was he out of surgery? A. Yeah, they had well, first of all, they did a lot of X-rays on him, and then they took him to surgery. He was in surgery for about five hours, I believe. Q. And then that would have gone through Wednesday and then through Thursday; is that right? A. Yes. Q. And then on Friday, February 23, 1990, was when he died; is that right? A. Yes. MS. KELLER: That's all. MR. POLING: No questions, Your Honor.
[6] See generally, J.D. Ludington, Annotation, Admissibility and propriety in homicide prosecution, of evidence as to deceased's spouse and children, 67 A.L.R. 2d 731 (1959).
[7] The widow's entire testimony on this point consisted of the following: "Q. How old was your husband at the time he was killed? A. He was on thirty-eight. Q. How long had you been married? A. About 19 year. Q. What? A. About 19 year. Q. A family? A. Yes, sir." Id. at 394.
[8] The State maintained that the photos "were a necessary link in the chain of tracing the body of the man shot at Lee's Wash Rack to the man who was identified at Desloge Hospital by his widow and were therefore a necessary part of the State's case." Id., 275 N.E.2d at 244. The photos were admitted into evidence after defense counsel refused to stipulate that the earlier photos taken some years ago were a reasonable likeness of the deceased at the time of his death. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263797/ | 336 A.2d 828 (1975)
DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellants,
v.
NORTH WASHINGTON NEIGHBORS, INC., et al., Appellees.
No. 9090.
District of Columbia Court of Appeals.
Argued February 20, 1975.
Decided April 29, 1975.
Rehearing Denied May 16, 1975.
E. Calvin Golumbic, Asst. Corp. Counsel, Washington D. C., with whom C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp., Counsel, Washington, D. C., were on the brief, for appellants.
Gilbert Hahn, Jr., Washington, D. C., for appellees.
Before FICKLING, GALLAGHER and YEAGLEY, Associate Judges.
PER CURIAM:
The District of Columbia appeals from an order which granted a preliminary injunction requiring the District, at its expense, to repair or replace broken water service pipes which are connected to the premises of appellees Roland Jackel, Ruth Williams, and Anne Hoopes. These water service pipes are pipes that run under the public street and connect the District's main water pipe with the private plumbing system of the property owner.
The only issue we find necessary to decide is whether the trial court erred in granting a preliminary injunction against *829 the District, based upon a finding that appellees would suffer irreparable injury unless the District is required to repair the broken water service pipes. Since we hold that the trial court erred on this point, we do not reach the merits on the other issues raised.
The appellees are all property owners in the District of Columbia who have broken water service pipe lines located underneath city streets. Each appellee was served with a notice from the District to repair his broken water pipe within five days, which each refused to do. Instead, they filed a suit to compel the District to repair the pipes. The trial court's order granting the relief requested has been stayed, pending final decision of this court.
Appellee Roland Jackel, the owner of premises at 5309 Chevy Chase Parkway, Northwest, is a retired employee of the Navy Department and receives an income of $1,200 a month. He has approximately $40,000 equity in his home, and approximately $30,000 in other assets. During the pendency of this appeal, he has repaired his water pipe and has informed this court he will seek a refund of the cost from the District.
Appellee Anne Hoopes, owner of premises at 4880 Glenbrook Road, Northwest, stipulated that she had the means of paying the estimated cost of repair of her broken water pipe, which was temporarily repaired.
Appellee Ruth Williams owns premises located at 612 Delafield Place, Northwest. She lives with her unemployed son, Nathaniel Williams, who receives a monthly pension from the Veterans Administration in the sum of $661. She is employed and receives an income of $7,000 to $8,000 a year, and has a savings account of approximately $700.
The trial court's finding that appellee Ruth Williams was financially unable to pay costs of repair is not supported by the record. The record fails to show whether the home is free of mortgage or, if there is an existing mortgage, the amount of the mortgage and the monthly payments required. Nor is there any evidence of appellee Williams' other monthly expenses.
Therefore, on this record we conclude that all appellees are financially able to repair their water service pipes.
Now the question arises as to whether these appellees have an adequate and complete remedy at law. If so, they have not suffered irreparable injury, hence they would not be entitled to a preliminary injunction. J. Pomeroy, 1 Equity Jurisprudence § 132 (1941).
The general rule is that an injunction will not be granted where the award of money damages gives full and complete satisfaction for an injury suffered. 43 C.J.S. Injunctions § 25 at 455. The right to sue the District of Columbia for damages for breach of its duty to a citizen is well established. D.C.Code 1973, § 1-102; cf. Wade v. District of Columbia, D.C.App., 310 A.2d 857, 860 (en banc 1973); Spencer v. General Hospital of District of Columbia, 138 U.S.App.D.C. 48, 425 F.2d 479 (en banc 1969); Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 337 F.2d 152 (1964). Here, appellees are able to repair the water service pipes and seek recovery of the costs from the District. If the District is liable, money damages would give full and complete satisfaction for the injury suffered. Thus, the injunction having been improvidently issued, the order granting the injunction is
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263807/ | 461 Pa. 267 (1975)
336 A.2d 279
Elizabeth K. McCLOSKEY, Appellant,
v.
Thomas D. McCLOSKEY, Appellee.
Supreme Court of Pennsylvania.
Argued March 14, 1975.
Decided April 17, 1975.
*268 Edwin P. Rome, Philadelphia, for appellant.
Bernard Chanin, Howard Gittis, Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
O'BRIEN, Justice.
This appeal arises from a final decree in equity which dissolved a preliminary injunction issued against appellant.
The facts surrounding this appeal are as follows. In April of 1974, the parties to this appeal, Elizabeth K. McCloskey (appellant) and Thomas D. McCloskey (appellee), separated because of marital difficulties. Appellee moved from his family residence in the Philadelphia area to Florida, and on December 30, 1974, he filed for divorce in Palm Beach County, Florida. On January 2, *269 1975, appellant filed a petition seeking a preliminary injunction against her husband from proceeding for a divorce in Florida. The Court of Common Pleas of Philadelphia, after taking of testimony, issued the preliminary injunction and by agreement of counsel stated that in two weeks the court would make a final decision as to whether the injunction should be dissolved or made permanent. On February 7, 1975, the chancellor dissolved the preliminary injunction.[1] This appeal followed.
The sole issue raised in this appeal is whether the chancellor erred in finding that appellee had, by his evidence, established a bona fide Florida domicile.
Domicile has been defined by this court on many occasions to mean residence in the place where domicile is claimed and an intent to reside permanently in the location. See Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974), see also Stottlemyer v. Stottlemyer, ____ Pa. ____, 329 A.2d 892 (1974). With the above definition in mind, we must now examine the record in the instant case and determine whether appellee has met the above test.
To support his claim of Florida domicile, appellee testified that since April of 1974 he has resided in Palm Beach County, Florida, except for short absences for business trips, and has purchased a condominium home in Florida. Appellee testified that he has largescale business holdings in Florida and that he decided to move to Florida for this reason, as well as to be next to his eldest son, who is active in appellee's business and also resides in Florida. In addition, appellee took those mechanical steps that evidence an intention to reside permanently in Florida. He registered to vote there, opened bank accounts, and filed a Declaration of Domicile in the *270 State of Florida, which obligated him to pay Florida taxes on his income.
To rebut appellee's evidence, appellant offered the following evidence in support of her position that appellee was not a bona fide Florida domiciliary: Appellant proved that appellee maintained a large business operation in the Philadelphia area, bank accounts in Philadelphia, along with a personal secretary and other indicia of Pennsylvania residency. Moreover, appellant points out that at the hearing on January 24, 1974, appellee, Thomas D. McCloskey, stated on cross examination that he told his children he intended to return to Philadelphia after he obtained his divorce. However, appellee, Thomas D. McCloskey, further stated that he had also told his children that he would not return to Philadelphia.
Accepting appellant's evidence, as did the court below, we are convinced that appellee has established a bona fide Florida domicile.
While appellant established that appellee continued his many business contacts with Pennsylvania, this does not negate a finding of Florida domicile. The nature of appellee's vast business holdings in Pennsylvania requires that he maintain many contacts with Pennsylvania while domiciled in Florida. If appellant's argument were to prevail, a person with extensive business holdings in Pennsylvania could not change his domicile to another state without liquidating his holdings in Pennsylvania. Such a proposition would be unfair and unjust. See Stambaugh v. Stambaugh, supra, Smith v. Smith, 364 Pa. 1, 70 A.2d 630 (1950).
Decree affirmed. Costs to be borne by appellant.
ROBERTS, J., dissents believing that the record does not support the chancellor's determination of domicile.
NOTES
[1] On February 14, 1975, appellant, by her Florida counsel, moved that the Florida court dismiss appellee's action for divorce on the grounds that appellee had not satisfied the six-month Florida residency requirement. That motion is still pending. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337663/ | 93 S.E.2d 221 (1956)
George B. HARRISON et al.
v.
The CITY OF HUNTINGTON, a Municipal Corporation et al. (two cases).
Nos. 10815, 10816.
Supreme Court of Appeals of West Virginia.
Submitted April 25, 1956.
Decided June 12, 1956.
*222 Brown, Beckett & Burford, Huntington, for appellant Nichols & Ronk, Inc.
Ducker, Keadle & McCreight, Huntington, for appellant Middle States Asphalt Corp.
Edward H. Greene, Claude M. Morgan, Huntington, for appellees.
GIVEN, Judge.
Plaintiffs George B. Harrison, O. H. Hines, John H. Druen and Eugene T. Brennan, as residents and taxpayers of the City of Huntington, instituted their suit against defendants, the City of Huntington, George E. Theurer as Mayor, Nichols & Ronk, Inc., and Middle States Asphalt Corporation, the last named two defendants being paving contractors, praying an injunction restraining defendants from paving certain streets in the City of Huntington, as required by certain contracts entered into between the city and the contractors. The Circuit Court of Cabell County, by order of November 18, 1955, perpetuated a temporary injunction previously awarded, granting the relief sought. Separate appeals from the final order were granted defendant contractors by this Court, which appeals were consolidated and are heard together.
The voters of the City of Huntington, on July 7, 1955, authorized the issuance of bonds, in the amount of $650,000, for the improvement of certain streets within the city. After the preparation of plans and specifications and the advertising for bids, two bids were received, one from each of the contractors named above, each for approximately one half of the amount of the work to be done. At a regular meeting of the City Council of the City of Huntington, held on September 12, 1955, the council rejected the bids. The original specifications required that the contractor to whom the contract might be awarded should commence work thereunder within ten days from the date of the contract, and complete such work within sixty days. Before the date fixed in the advertisement for the opening of the bids, the city, acting through its city engineer, who was responsible for the preparation of the plans and specifications, authorized or directed a change in such plans or specifications whereby the time to be allowed for the completion of the performance of the contract was changed from "sixty days from date of award", to read "sixty working days from date of award". The wording of the amendment was carried into the contracts executed between the city and the defendant contractors. All contractors who contemplated bidding on the proposed improvements, and who received from the city officials copies of the plans and specifications, were notified of the authorization of such amendment. Three days later, September 15, 1955, by notice signed by three members of the city council, a special meeting of the city council was called for September 19, 1955. The purposes for which the meeting was called, as stated in the notices, were: "1. To reconsider the action taken on Monday, September' 12, 1955, on the motion to reject the bids which were made September 10, 1955, and readvertise for new bids with the time limit taken out and new bids to read thirty days to move in, do what work to be done this fall and a time limit of July 31, 1956, to have the job finished. 2. To reconsider the report from the City Engineer on bids received on September 10, 1955, for paving various projects under the Street Improvement Program. 3. To take whatever action may be deemed necessary to effect the acceptance of bids and the letting of contracts *223 for paving the various projects under the Street Improvement Program."
At the special meeting a motion was made "that the action of Council taken on September 12, 1955, to reject the bids received September 10, 1955, and readvertise for new bids with the time limit taken out, new bids to read 30 days to move in and go to work, do what can be done this fall and a time limit of July 31, 1956, to have the job completed be rescinded, repealed, nullified, and vacated." The motion was duly seconded and carried by a vote of eight to four, one member being absent. After further consideration of business before the council, a motion was made, duly seconded, that "the report of the City Engineer be accepted and that the low bids submitted September 10, 1955, for paving various projects under the Street Improvement Program be accepted and that Middle States Asphalt Corporation of Ashland, Kentucky, be awarded the contract on designated Group No. 2 and the bid of $342,302.43 be accepted; and Nichols & Ronk be awarded the contract on designated Group No. 1 and the bid of $299,749.77 be accepted." The motion carried by a vote of eight to four, one member being absent. Subsequently, the contracts here involved were executed by the city and the defendant contractors.
The grounds of attack on the contracts are that there was collusive action on the part of certain city officials and bidders which stifled competitive bidding, thus rendering the contracts fraudulent and void; that the amendment authorized to be made in the specifications, whereby the contractor was given "60 working days" instead of "sixty days" to complete the work to be performed, was such a material change as to render the contracts void; and that the council having once rejected the bids, it could not, at a later meeting thereof, by a motion to reconsider, annul the action of the council whereby the bids were rejected, and thereafter authorize the acceptance of the bids.
The trial chancellor found that plaintiffs "failed to prove collusion", and failed to prove that any officer or agent of the City of Huntington had "intentionally or otherwise imposed restrictions on bidding for the purpose of giving the contract to the defendants" to whom the contracts were let, and that plaintiffs had "failed to prove that the changes in the plans and specifications from sixty days to sixty working days was a material change or that such change prevented or discouraged competitive bidding." The findings are clearly supported by the evidence, and preclude a reconsideration thereof by this Court.
The position of plaintiffs, that the contracts are ultra vires and void, is based, principally at least, on the nature of the motion by which the city council attempted to annul its own prior action in rejecting the bids at the council meeting of September 12, 1955. They contend that the motion was a motion to reconsider, and that the council, because of parliamentary rules by which it was bound, was without power to entertain such a motion, unless made by a member of the council who had voted with the prevailing side, and unless made at the same council meeting at which the vote on the original motion was taken. The argument supporting plaintiffs' position is based largely on the use of the word "reconsider" in the notice, quoted above, calling the special council meeting. Plaintiffs point out that by an ordinance of the City of Huntington it is provided: "In all cases, a motion to reconsider will be entertained only when made by a member who voted with the prevailing side. A majority of those present can consider any vote, but the motion to do so shall be made at the same session of the Council during which such vote was taken." It is also pointed out that an ordinance of the City of Huntington provides: "The proceedings of the Council, except as otherwise provided for, shall be governed by Karcher's Handbook of Parliamentary Law". In so far as pertinent, the provisions of Karcher's Handbook of Parliamentary Law read:
"To Rescind This motion is not in frequent use. As its name implies, its purpose is to cancel out or nullify some prior action of the assembly. This motion is a rather drastic one and in many instance? requires prior notice to the members. It is in the *224 same classification with a motion which attempts to amend some previous motion already adopted which substantially changes the character or purpose of the original motion, and under the circumstances, the motion to rescind is subject to the same limitations that any special rules of order may place on amendments of this nature.
"The usual phraseology of the motion is, `I move that the action of this body in doing thus and so be rescinded.' Other words which may be used instead of the word `rescind' are, `repeal' or `annul.' In parliamentary procedure these words are considered as having the same practical meaning.
"To Reconsider The motion to reconsider is unusual in many respects. The motion to reconsider itself, is a rather high ranking one from the standpoint of privilege and precedence, but the consideration of the motion in itself does not enjoy the same privilege of precedence but only the privilege or precedence of the motion which is to be reconsidered.
"The primary points to bear in mind with reference to this motion are the following: 1. It must be moved on the same day or the next day following on which the vote to be reconsidered was taken. 2. It can only be made by a member who voted with the winning side on the question to be reconsidered. 3. Any member, however, may second it. 4. The motion is in order even when other questions are pending. 5. The motion may be made even when another member has the floor."
The purpose of the notice calling the special meeting was not to limit or define the type of motion to be made before the council, but to inform the members of the council as to the time and place of the special meeting to be held and the nature of the business to be transacted at that meeting. As to such purposes, no question is, or reasonably could be, raised. It is true that in the first and second paragraphs of the notice the word "reconsider" is used. As used, however, it relates to the business to be transacted, not to the type of motion to be made. The rules which plaintiffs would invoke to sustain their contention as to the invalidity of the action of the council apply only to the one type of motion, a "motion to reconsider". The motion actually made and acted on was not a "motion to reconsider", but a motion "that the action of council taken on September 12, 1955 * * * be rescinded, repealed, nullified, and vacated". It seems clear to us, therefore, that the motion made and acted on, whereby the previous action of the council in rejecting the bids was vacated, was not in conflict with, nor violative of, any pertinent parliamentary rule. This being true; we do not reach any of the questions attempted to be raised as to the invalidity of an ordinance passed in violation of a parliamentary rule of procedure.
The power of the city council at the special meeting, to vacate or annul its prior action whereby the bids were rejected, appears not to be, and we believe can not be, seriously questioned. Under its charter, the city, through its council, had the right, power and duty to improve its streets in such manner as was deemed for the best interests of its citizens, including power to pay for the same through issuance of bonds, when duly authorized, and power to accept or reject bids received in accordance with plans or specifications prepared by its officers or agents. Wide discretion in such matters is vested in the city council. In 63 C.J.S, Municipal Corporations, § 1005, it is stated: "The action of a municipality in accepting or rejecting bids in the exercise of its discretion will not be reviewed by the courts unless it is necessary to prevent fraud, violation of trust, injustice, or abuse of discretion; but the good faith and honesty of the award are the determining factors, and the courts may compel municipal officials to act in good faith in awarding contracts on competitive bidding. In proceedings challenging an award, the burden of proving bad faith or dishonesty on the part of governing officials is on plaintiff; and every presumption will be indulged in favor of the honesty of the municipal officers in awarding municipal contracts." See Lucas v. Town of Belhaven, 175 N.C. 124, 95 S.E. 41; Dal Maso *225 v. Board of County Commissioners of Prince George's County, 182 Md. 200, 34 A.2d 464; Central Veterans' Ass'n of Stamford, Connecticut, Inc., v. City of Stamford, 140 Conn. 451, 101 A.2d 281; People ex rel. MacMahon v. Davis, 284 Ill. 439, 120 N.E. 326, 2 A.L.R. 1650; Ross v. Stackhouse, 114 Ind. 200, 16 N.E. 501; 37 Am.Jur., Municipal Corporations, Section 150; 4 McQuillin, Municipal Corporations, Section 13.42.
Plaintiffs rely heavily on the holding of this Court in Hukle v. City of Huntington, 134 W.Va. 249, 58 S.E.2d 780, 784. While the case is very helpful in the appraisal of the rights or powers of the council of the municipality with reference to repeal or suspension of ordinances previously enforced, we think it not controlling of the principles involved in the instant case. The facts in the two cases are different in effect. In the Hukle case, an attempt was made to repeal or suspend an ordinance in full force "by mere motion or resolution * * *". The Court stated that "A suspension, to be effective, was necessarily required to have been by an instrument of equal dignity, i. e., an ordinance." In the instant case, the motions made and carried at the special meeting of the council were of equal dignity with the motions annulled or vacated.
Defendants complain of the action of the trial court in fixing the penalty of the preliminary injunction bond at one thousand dollars, pointing out that affidavits filed indicated that a much larger amount of damages would accrue to defendants, should they be restrained from proceeding with the performance of the contracts. We are of the view that the circuit court acted within its discretionary powers in fixing the amount of the penalty. The record discloses that the temporary injunction was awarded only a few days before the entry of the order granting the permanent injunction, and that on the state of the pleadings, and other parts of the record, the parties were advised at that time that the temporary injunction would probably be perpetuated about the date the final order was entered. Consequently, in view of the fact it was understood that the preliminary injunction was to be in effect only a few days, we can not say that the trial court erred in fixing the amount of the bond.
It necessarily follows that the action of the Circuit Court of Cabell County, in perpetuating the temporary injunction and in enjoining and restraining defendants from carrying out the provisions of the two contracts, or either of them, in accordance with the terms thereof, must be reversed, and the cause must be remanded with directions to that court to dissolve the temporary and permanent injunctions heretofore awarded by that court.
Reversed; remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2576748/ | 8 F. Supp. 2d 434 (1998)
MEHL/BIOPHILE INTERNATIONAL CORP., et al., Plaintiffs,
v.
Sandy MILGRAUM, M.D., et al., Defendants.
Civil Action No. 97-1174.
United States District Court, D. New Jersey.
May 18, 1998.
*435 *436 Jeffrey A. Schwab, Michael Aschen, Abelman, Frayne & Schwab, New York City, George A. Arkwright, Terrence L.B. Brown, Arlington, VI, Vincent J. Paluzzi, Sterns & Weinroth, Trenton, NJ, for Plaintiffs.
Joseph J. Fleischman, James P. Flynn, Hannoch Weisman, Roseland, NJ, William F. Lee, Wayne L. Stoner, James M. Hall, Hale & Dorr, Boston, MA, Thomas A. Reed, Palomar Medical Technologies, Inc., Lexington, MA, for Defendants.
OPINION
WOLIN, District Judge.
Much of the public discourse on hair these days involves how to generate hair. Recently, television commercials have used a professional basketball player and a professional football coach to show that a certain product grows hair on the crown of the head. Unfortunately, hair removal is not discussed as often. In fact, it is unclear whether any product or process exists to remove hair permanently. Hair removal, like hair generation, could be a lucrative industry.
In this case, the Patent and Trademark Office ("PTO") granted Dr. Nardo Zaias, plaintiff, patent 5,059,192 (" '192"), which covers a method for removing hair. Zaias along with Mehl/Biophile International Corporation *437 ("Mehl"), plaintiff, and Selvac Acquisitions Corporation ("Selvac"), plaintiff, filed suit against Dr. Sandy Milgraum, Palomar Medical Technologies, Inc. ("Palomar"), and Spectrum Medical Technologies, Inc. ("Spectrum") ("defendants"), for infringing its patent by manufacturing and selling the Epilaser®, which is a device that removes hair.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants now move for summary judgment. They argue that the '192 patent is invalid because prior art anticipated it and/or made it obvious. They also seek attorneys' fees.
For the reasons expressed infra, the Court has found that one of the pieces of prior art anticipated the '192 patent. Thus, the Court will grant defendants' motion for summary judgment. The Court has decided this motion without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure.
BACKGROUND
I. Lasers and Hair
A. Lasers
Lasers produce light of a certain type, and are classified by the material in them that is "excited" to produce the light, e.g., argon gas and ruby. Depending on the material in the laser, the laser produces light with a given wavelength, which is measured in nanometers ("nm"). For example, a ruby laser produces light with a wavelength of 694 nm, which is in the red area of the spectrum of visible light.
Certain lasers emit light in "pulses" as opposed to a continuous wave of light. When a pulse of laser light strikes a target, it creates a spot, and the size of the spot is called the "spot size," which is measured in "millimeters" ("mm"). The energy of the pulses of light is expressed in "joules," or in terms of "fluence," the energy per unit area covered by the laser beam spot when it hits a target, which is expressed as joules per square centimeter (j/cm2). The pulses a laser produces have a duration ("width"), which is measured in fractions of a second, e.g., nanosecond ("ns" or billionths of a second), microsecond (millionths of a second), or millisecond ("ms" or thousandths of a second). The wavelength, energy, fluence, spot size, and duration of the pulses are the parameters of the laser.
The laser at issue in this case is a Q-switched ruby laser. The Q-switched ruby laser has a much shorter pulse than an ordinary ruby laser. It was invented before Zaias received the patent in this case.
Since the early 1960's, studies have been performed on how lasers can be used to treat the skin. In the early 1980's, researchers at the Massachusetts General Hospital, including Dr. R. Rox Anderson, invented selective photothermolysis, which involves using a laser wavelength that the target selectively absorbs. The wavelength must have an energy level that effects a change on the target, and a pulse duration that does not conduct thermal energy to the surrounding tissue.
B. Hair
Hair grows out of the skin. More specifically, the hair shaft grows out of a hair "follicle," which is a tubular aperture in the dermis, i.e., skin. The root of the hair at the base of the follicle is called the "papilla." In the papilla, a dark pigment called melanin exists in granules, which are called melanosomes. To prevent hair regrowth, one must destroy the papilla.
According to Zaias, prior to the '192 patent, the only commercial methods for hair depilation were plucking out hair with tweezers, waxing, shaving, depilatory creams, electrolysis, or radio frequency devices. None of those methods permanently remove hair.
II. The '192 Patent
A. Events Prior to the Application for the Patent
After their discovery of selective photothermolysis in the early 1980's, seven researchers/doctors, including Dr. Luigi Polla, Dr. R. Rox Anderson, and Dr. Jeffrey Dover, at the Massachusetts General Hospital wrote and published an article in 1987 entitled "Melanosomes Are a Primary Target of Q-Switched Ruby Laser Irradiation in Guinea Pig Skin" ("1987 Article"). (Stoner Decl.Ex. 3). The *438 purpose of their study was to "document the tissue damage induced by Q-switched ruby laser pulses in ... guinea pigs ... in an effort to define the nature and extent of pigmented cell injury." Their study used selective photothermolysis.
The parameters of the Q-switched ruby laser were: ".08-1.2 j/cm2 in single 40-ns duration full width at half maximum pulses at a wavelength of 694 nm." The laser beam hit a circular aperture, which was held to the skin of the guinea pigs, of 2.5 millimeters in diameter. The authors waxed the backs of the guinea pigs prior to using the laser. They found that (1) "melanin is the fundamental target of energy absorption," (2) the laser could injure melanosomes at the right exposure without injuring unmelanized organelles, (3) when increasing radiant exposure doses were used, melanin containing cells showed degenerative alterations, (4) "pigmented structures in the deep dermis such as hair follicles are affected," and (5) dermisepidermis separation occurred at appropriate radiant exposures. In Figure One, the authors showed the disruption of the hair follicles of one of the guinea pigs. The authors concluded that their study might provide a biological basis for using the Q-switched ruby laser for removing tattoos.
The authors of the 1987 article continued to conduct research on the Q-switched ruby laser, and published additional articles. A 1989 article also failed to discuss hair depilation.
The named inventor of the '192 patent is Zaias, who is a dermatologist in Florida and a major shareholder and director of Mehl. Zaias has spent many years of his practice dealing with hair depilation. Zaias performs hair depilations, and along with Thomas Mehl, the founder of Mehl, has developed, manufactured, and sold several devices that use radio frequency energy to remove hair. Prior to December 1989, Zaias had never used a laser to try to remove hair. (Stoner Decl.Ex. 11 (Zaias dep.)).
In December 1989, Zaias attended a convention of the American Academy of Dermatology. Spectrum had a booth at the meeting to market its Q-switched ruby laser, the Spectrume RD-1200, which uses selective photothermolysis to remove tattoos without leaving scars. "Patient treatment with the SPECTRUM RD-1200[] are accomplished by delivering laser energy of 5-10 joules/cm2, at a wavelength of 694 nm, through an articulate arm in a 5 mm or 7 mm spot size. A 20-40[ns] pulse is delivered every 2 seconds. ..." (Stoner Decl.Ex. 14). The Spectrum RD-1200 uses selective photothermolysis to fracture the pigment particles in the skin. In essence, pigment chromophores, and not the surrounding tissue, selectively absorb the laser's energy so that the risk of scarring is reduced. At the time of the meeting, Spectrum had conducted encouraging tests on the RD-1200's application to benign pigmented lesions.
Zaias went to Spectrum's booth, and spoke to Spectrum representatives about the RD-1200. At that time or shortly thereafter, he obtained a brochure/instruction manual ("manual") for the RD-1200. The manual described the RD-1200 and how it was used to treat patients, contained before and after photographs of patients who had tattoos removed with the RD-1200, and discussed how the laser could perform selective photothermolysis on melanin-bearing cells in the skin. While reading the manual, Zaias observed that the before and after photographs showed that the laser had removed hair from the patients' skin. Zaias admitted at his deposition that viewing the photographs sparked the idea of using the Q-switched ruby laser to remove hair. (Stoner Decl.Ex. 13).[1] The manual, however, did not discuss hair depilation.
Following this observation, Zaias telephoned Dr. R. Rox Anderson, the physician who performed the treatments in the manual, to discuss the hair that the RD-1200 had removed. Dr. Anderson interrupted Zaias and told him not to worry about it because it would grow back. Zaias concluded that Anderson did not appreciate the potential use of the RD-1200 to achieve hair depilation. *439 (Zaias Decl. ¶ 19). Ultimately, Zaias ordered an RD-1200.
On January 16, 1990, Zaias contacted his patent attorneys about preparing a patent application because he believed that he was the first person to develop a method for using a laser to destroy the melanin in papilla. Prior to filing his patent application, Zaias forwarded a copy of the 1987 article to his patent attorneys. On April 24, 1990, Zaias filed an application for a patent for hair depilation that would not damage the surrounding tissue. Zaias submitted the 1989 article and an article written in 1988 to the PTO. The parameters discussed in the application are similar to those listed in the manual. Zaias admitted at his deposition that the RD-1200 had accomplished hair removal with the same parameters of his invention. (Stoner Decl.Ex. 17). Zaias did not, however, tell the PTO about the manual or what the RD-1200 had accomplished.
Prior to filing his patent application, Zaias had not performed any experiments on how a Q-switched ruby laser could remove hair. In fact, Zaias did not receive the RD-1200 until November 1990, which is six months after he filed his patent application. Zaias did not own a Q-switched ruby laser before he received the RD-1200.[2]
Zaias conceded at his deposition that the '192 patent used a laser treatment others developed and employed. Moreover, Zaias admitted that Dr. Anderson's laser dermatology method is the same as his but for the fact that Dr. Anderson did not recognize that the method could be used for hair depilation. In essence, Zaias claimed that he used a laser, which others developed, for a new purpose, i.e., hair depilation. Zaias stated that his method is to use
a laser to illuminate a section of the skin with the parameters of the laser radiation selected so that it passes through the skin, largely without effect, but is absorbed by the dark pigment located in the papilla ..., where the laser causes sufficient damage to the papilla to delay or prevent the hair's regrowth without injuring the surrounding skin.
On October 22, 1991, the PTO granted the '192 patent to Zaias, who still owns the patent. Zaias exclusively licensed the '192 patent to Mehl's wholly owned subsidiary, Technologies, Inc., which is now Selvac. Laser Industries of Israel also has a license for the '192 patent. Plaintiffs rebuked Palomar's, the parent of Spectrum, attempt to obtain a license under its patent. On March 13, 1997, the Food and Drug Administration ("FDA") granted Mehl's request to market the Chromos 694, a hair depilation system that employs Zaias's patented method. Six days earlier, the FDA gave Palomar clearance to sell the Epilaser®, which employs a laser to remove hair. Along with others, Dr. Anderson developed the Epilaser in the 1990's by combining it with features of the RD-1200.
B. The '192 Patent
The '192 patent has one independent claim (Claim One) and five dependent claims (Claims Two through Six). Claim One provides:
A method of hair depilation, comprising the steps of:
(a) aligning a laser light applicator substantially vertically over a hair follicle opening, said applicator having an aperture of sufficient area to surround a hair follicle and overlie its papilla;
(b) applying through said aperture to the hair follicle a pulse of laser energy of a wavelength which is readily absorbed by the melanin of the papilla and having a radiant exposure dose of sufficient energy and duration to damage its papilla so that hair regrowth is prevented and scarring of the surrounding skin is avoided. *440 Claims Two through Six provide the parameters of the patented method, and are thus dependent on Claim One.
Claim Two requires that the laser's light must be applied through an aperture of at least three millimeters. In the specification, the patent states that the port in the aperture needs to be between three and eight millimeters depending on the area of the body. The aperture plate is held in contact with the skin to deliver the pulses of the Q-switched ruby laser. Claim Three provides that the radiant exposure should be between .4 j/cm1 and 10 j/cm2 for less than one microsecond. Claim Four requires the method to apply an energy pulse from a Q-switched ruby laser that is sufficient to destroy melanosomes. Claim Five states that the duration of the pulse should be between thirty to forty nanoseconds. Claim Six provides that the wavelength of the laser energy should closely match the absorption spectrum of the melanin. In the specification, the patent states that 694 nm is the preferred wavelength. Finally, the specification states that the laser uses selective photothermolysis.
At his deposition, Zaias admitted that the aperture described in his patent referred to the output port of the handpiece of the RD-1200. Zaias then stated that the output port was the only aperture he had ever used. (Stoner Decl.Ex. 29). However, Zaias uses lasers other than the RD-1200 to perform hair depilation because he believes that the RD-1200 does not work as well as some of the other lasers.
C. Experts' Opinions About Claims
Defendants hired Dr. Jeffrey Dover to provide an expert opinion on whether the '192 patent was anticipated by the 1987 article and the RD-1200. Dr. Dover is an Associate Professor of Clinical Dermatology at Harvard Medical School, and is Associate Chairman of the Department of Dermatology at the Beth Israel Deaconess Medical Center in Boston. Since the mid-1980's, Dr. Dover has performed a great deal of research on the use of lasers for dermatological applications and the effects of lasers on the skin. Dr. Dover has written or co-authored many articles, including the 1987 article.
Dr. Dover found that the laser treatment in the 1987 article and the laser treatment described in the manual are within the same parameters as those stated in the '192 patent. According to Dr. Dover, the only difference between the 1987 article and the '192 patent is Claim Two the '192 patent states that the aperture through which the laser pulses are applied must be at least 3 millimeters whereas the 1987 article describes an aperture of 2.5 millimeters. Dr. Dover opined that "this difference is trivial and insignificant, and it would have been obvious to a person skilled in the field of the use of lasers in dermatology to use an aperture 3 mm or larger instead of 2.5 mm." (Dover Decl. ¶ 8). He added that Claim One explains that the aperture must be large enough to surround a hair follicle and its papilla, and that an aperture of 2.5 mm can perform that task. Thus, Dr. Dover concluded that the 1987 article and the manual have "sufficient information to enable a person skilled in the field of laser dermatology to perform the treatment" described in the '192 patent. (Dover Decl. ¶ 9).
William Michael Davies, plaintiff's expert, is the Consultant Clinical Physicist at the Department of Medical Physics and Clinical Engineering at Singleton Hospital in South Wales. He has been the chairman and member of General Medical Physics Topic Group and a member of the Scientific Committee and Professional Committee. Davies has been involved with laser safety and has promoted the introduction of therapeutic lasers into local service.
Davies determined that no one had ever discussed removing hair with a laser in a published article prior to the '192 patent. In addition, Davies found that the authors of the 1987 article had not developed a method of depilating hair with a laser despite their impressive academic credentials. In comparing the claims of the '192 patent to the 1987 article and the manual, Davies found that neither the 1987 article nor the manual teaches the steps in Zaias's method because neither one discussed nor focused on hair depilation. He added that the waxing performed in the 1987 article removes both the *441 hair shaft and the papilla. Moreover, Davies stated that the RD-1200 would not reliably cause photothermolysis to the papilla because it fractures the pigment particles. Thus, he found that the overlap in parameters of the RD-1200 and the '192 patent was coincidental.
Davies opined that "neither document, alone or combined with all the prior art ... would have rendered the subject matter of the '192 patent as a whole obvious at the time the invention was made to a person having ordinary skill in the subject matter of the patent." Davies argued that no one, including the authors of the 1987 article, had invented the Zaias method even though the market for a safe and painless hair depilation method was financially lucrative. Finally, Davies reviewed other articles co-authored by Anderson, and found that a 1996 article states that the 1987 articles does not teach hair depilation.
III. Procedural History
On March 11, 1997, plaintiffs filed their Complaint against defendants. On April 11, 1997, plaintiffs filed an Amended Complaint with three counts: (1) Dr. Sandy Milgraum, a dermatologist in New Jersey, is infringing the '192 patent by using the Epilaser® for hair removal; (2) Palomar and Spectrum are infringing the '192 patent by manufacturing, promoting, and selling the Epilaser® for hair removal; and (3) the defendants engaged in unfair competition in violation of New Jersey common law by "improperly, illegally and unfairly" promoting and selling the Epilaser® for use in hair removal prior to FDA approval for such use. Plaintiffs' Amended Complaint seeks injunctive relief and damages.
On August 11, 1997, this Court granted defendants' motion to dismiss plaintiffs' New Jersey common law unfair competition claim to the extent it sought redress for violations of the Food, Drug and Cosmetic Act ("FDCA") or the Federal Drug Administration ("FDA"). The Court also ruled that plaintiff could proceed on the New Jersey common law unfair competition claim so long as the Court did not have to interpret or apply the FDCA or the FDA regulations. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants now move for summary judgment on the first two counts.
DISCUSSION
I. Legal Precepts
A. Standard for Summary Judgment
Summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.CIV. P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir.1986). In making this determination, a court must draw all reasonable inferences in favor of the non-movant. See Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), cert. dismissed, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984). Whether a fact is "material" is determined by the substantive law defining the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); United States v. 225 Cartons, 871 F.2d 409, 419 (3d Cir.1989).
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S. Ct. 2505. Summary judgment must be granted if no reasonable trier of fact could find for the non-moving party. See id.
When the non-moving party bears the burden of proof at trial, the moving party's burden can be "discharged by `showing' that is, pointing out to the District Court that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the moving party has carried its burden of establishing the absence of a genuine issue of material fact, the burden shifts to the non-moving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 *442 S.Ct. 1348, 89 L. Ed. 2d 538 (1986). When the non-moving party's evidence in opposition to a properly-supported motion for summary judgment is merely "colorable" or "not significantly probative," the Court may grant summary judgment. See Anderson, 477 U.S. at 249-50, 106 S. Ct. 2505.
Further, when a non-moving party who bears the burden of proof at trial has failed, in opposition to a motion for summary judgment, to raise a disputed fact issue as to any essential element of his or her claim, summary judgment should be granted because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23, 106 S. Ct. 2548.
B. Summary Judgment in Patent Cases
The fact that this case deals with patent infringement and this motion involves the validity of a patent does not render this case unsuitable for disposition by summary judgment. Although patent infringement cases often raise complex, factual issues, "the rules do not change simply because the case involves patent law." Aid Pack, Inc. v. Beecham, Inc., 641 F. Supp. 692, 694 (D.Mass. 1986), aff'd, 826 F.2d 1071 (Fed.Cir.1987) (citing D.M.I. Inc. v. Deere & Co., 755 F.2d 1570, 1573 (Fed.Cir.1985)). "Summary judgment is appropriate in patent cases as in other cases under Rule 56(c)." Procter & Gamble Co. v. Nabisco Brands, Inc., 711 F. Supp. 759, 761 (D.Del.1989).
In fact, the Federal Circuit has repeatedly upheld the grant of summary judgment in patent infringement cases where there was no genuine issue of material fact. See, e.g., George v. Honda Motor Co., Ltd., 802 F.2d 432, 434 (Fed.Cir.1986); Porter v. Farmers Supply Serv., Inc., 790 F.2d 882, 884 (Fed. Cir.1986). Thus, the Federal Circuit has advised that "[w]here no issue of material fact is present ... courts should not hesitate to avoid an unnecessary trial by proceeding under [Rule] 56." Chore-Time Equip., Inc. v. Cumberland Corp., 713 F.2d 774, 778-79 (Fed.Cir.1983).
"In accordance with Chore-Time, it is incumbent on the trial judge to look beyond mere denials or arguments with respect to issues of scope and content of the prior art, differences between the prior art and the invention in suit, level of skill in the art or other factual issues." Union Carbide Corp. v. American Can Co., 724 F.2d 1567, 1571 (Fed.Cir.1984).
It is with these tenets in mind that the Court considers the defendants' motions for summary judgment.
II. Is the '192 Patent Invalid: Anticipation
A. Basic Test
A product is not patentable unless it is new. Determining whether a product is "new" within the meaning of the patent statute requires comparing the product with the products of the relevant prior art. See Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 619 (Fed.Cir.), cert. dismissed, 474 U.S. 976, 106 S. Ct. 340, 88 L. Ed. 2d 326 (1985). If a single piece of relevant prior art contains all the elements of the patent at issue, the prior art is said to have anticipated the patent. See Structural Rubber Prods. Co. v. Park Rubber Co., 749 F.2d 707, 715-16 (Fed.Cir.1984). "Anticipation is a question of fact." Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1576 (Fed.Cir.1991).
Under 35 U.S.C. § 102(a) and (b), a patent is invalid as anticipated if the claimed invention:
(a) ... was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) ... was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.
Both subsections apply to this case. The Court need not differentiate between the two because the analysis is the same for both subsections.
*443 Courts have interpreted § 102 to require that "each and every element as set forth in the claim [be] found, either expressly or inherently described, in a single prior art reference." Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1570 (Fed.Cir.), cert. denied, 488 U.S. 892, 109 S. Ct. 228, 102 L. Ed. 2d 218 (1988).
Defendants must prove anticipation by clear and convincing evidence because patents are presumed to be valid. See 35 U.S.C. § 282; Texas Instruments Inc. v. United States Int'l Trade Comm'n, 988 F.2d 1165, 1177 (Fed.Cir.1993). "Although this burden remains on the challenger, it may be more easily met where the challenger produces prior art that is more pertinent than that considered by the [PTO]." Ryco, Inc. v. Ag-bag Corp., 857 F.2d 1418, 1423 (Fed.Cir. 1988).
To determine whether a patent is anticipated by prior art under § 102, the Court must undertake a three-step analysis. The first step is to construe the patent claims to determine their meaning in light of the specification and prosecution history. Since Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996), the interpretation of patent claims falls within the exclusive province of the Court. The standard to be applied for claim construction is what one of ordinary skill in the art at the time of the invention would have understood the term to mean. See id. at 986. The process is akin to statutory interpretation and must be viewed through the lens of objectivity with no inquiry as to the subjective intent of the inventor. See General Elec. Co. v. Nintendo Co., Ltd., 983 F. Supp. 512, 519 (D.N.J.1997) (citing Markman, 52 F.3d at 987). Thus, to ascertain the meaning of a patent claim, a court should examine (1) the claims of the patent, (2) the specification, (3) the patent's prosecution history, and (4) extrinsic evidence. See Markman, 52 F.3d at 979.
The claims establish the limits or boundaries of the patent while the specification, of which the claims are a part, contains a written description of the invention that would enable one of ordinary skill in the art to make and use the invention. See id. at 979-80. "For claim construction purposes, the description may act as a sort of dictionary, which explains the invention and may define terms used in the claims." Id. (quoting In re Vogel, 57 C.C.P.A. 920, 422 F.2d 438, 441 (1970)). Indeed, a patentee can be his own lexicographer. See id. at 980 (citing Autogiro Co. of Am. v. United States, 181 Ct. Cl. 55, 384 F.2d 391, 396-98 (1967)). The written description, however, "does not delimit the right to exclude. That is the function and purpose of claims." Id.
Prosecution history is of primary significance to claim construction; it permits scrutiny of the proceedings that occurred at the PTO. See id. at 980. "The court has broad power to look as a matter of law to the prosecution history of the patent in order to ascertain the true meaning of language used in the patent claims." Id. Yet, like the written description, the prosecution history cannot "enlarge, diminish, or vary" claim limitations. Id. (citing Goodyear Dental Vulcanite Co. v. Davis, 102 U.S. 222, 12 U.S. 222, 227, 26 L. Ed. 149 (1880); Intervet Am., Inc. v. Kee-Vet Labs., Inc., 887 F.2d 1050, 1054 (Fed.Cir.1989)).
Lastly, extrinsic evidence through expert testimony lends understanding to the patent boundaries, but also may not vary or contradict the claims themselves. See id. at 980-81. "The court may, in its discretion, receive extrinsic evidence in order `to aid the court in coming to a correct conclusion' as to the `true meaning of the language employed' in the patent." Id. at 980 (quoting Seymour v. Osborne, 78 U.S. 516, 11 Wall. 516, 546, 20 L. Ed. 33 (1870)).
The second step in assessing whether a prior art anticipates a patent requires the Court to compare the properly construed claims with the subject matter described in the prior art reference and identify the corresponding elements disclosed in the allegedly anticipating reference. See Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 782 (Fed.Cir.1985). The third step requires the Court to determine whether the prior art reference is enabling, thereby placing *444 the allegedly disclosed matter in the possession of the public. See Akzo N.V. v. United States Int'l Trade Comm'n, 808 F.2d 1471, 1479 (Fed.Cir.1986), cert. denied, 482 U.S. 909, 107 S. Ct. 2490, 96 L. Ed. 2d 382 (1987). A prior art reference in a printed publication cannot anticipate an invention under § 102 unless it enables one skilled in the art to produce the invention described in the patent. Prior art references are presumed to be enabling. See In re Sasse, 629 F.2d 675, 681 (C.C.P.A.1980). Thus, the owner of the patent bears the burden of proving that there was no enabling technique in the prior art. See General Elec., 983 F.Supp. at 533.
B. Construing the Claims
Defendants assert that the manual and the 1987 article describe the same laser treatment in the '192 patent, and that Zaias failed to inform the PTO about the two pieces of prior art when he applied for his patent. They add that the '192's purported method of hair depilation is shown in the manual. They conclude that the patent is anticipated twice, and therefore is invalid. Defendants also argue that a complete construction of the claims is unnecessary because the prior art is the same as the claims and specification in the '192 patent.
The Court declines the invitation to adopt defendants' cursory approach to the construction of the claims in the '192 patent, and will engage in the prescribed three-step analysis. In this instance, the construction of the claims is not a difficult task because the claims are few in number and clearly and succinctly stated. Claim One is the only independent claim and establishes "a method of hair depilation." The primary steps of the method of hair depilation are to align the laser light applicator, which must have an aperture large enough to surround a hair follicle and papilla, substantially vertically over a hair follicle opening. Once the applicator and aperture are in place, a pulse of laser energy of sufficient wavelength to be absorbed by the melanin of the papilla and of sufficient dose and duration to damage the papilla is to be applied so that the hair cannot be regrown and no scarring occurs.
Claims Two through Six elaborate on Claim One by providing the parameters for the method: an aperture at least three millimeters in diameter; radiant exposure dose between .4 j/cm2 and 10 j/cm2 for less than one microsecond; a Q-switched ruby laser's energy pulse should be used to destroy melanosomes in the papilla; duration of thirty to forty nanoseconds; the wavelength of the laser energy should closely match the absorption spectrum of the melanin. The specification states that the wavelength should be 694 nanometers. Thus, the '192 patent provides the mechanism and the parameters for inducing hair removal.
C. Comparing the '192 patent to the Prior Art
The parties hotly contest the comparison of the 1987 article and the manual with the '192 patent. Defendants assert that the 1987 article and the manual are anticipatory because they provide the same parameters as stated in the '192 patent. Plaintiffs counter that the 1987 article and the manual do not discuss hair depilation or every element in the '192 patent, and therefore cannot be anticipatory. Defendants respond that "to be anticipatory, a prior art reference need only disclose a method within the scope of the claims not the full scope of the claims."
The critical inquiry when comparing the prior art to the '192 patent is whether the claims in the '192 patent create a "new" method.[3] In making that inquiry, the Court follows the "elementary principle of patent law that when, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is `anticipated' if one them is *445 in the prior art." Titanium Metals, 778 F.2d at 782 (finding that claims describing ranges for alloy were anticipated by prior article because ranges in claims covered those in article); see also In re Woodruff, 919 F.2d 1575, 1577 (Fed.Cir.1990) (finding that claims were unpatentable under § 103 because all but one of ranges for gases in claims encompassed ranges in prior patent; also ruling that lone exception was close and that prior patent permitted percentage of gas that was listed in claim's range).
The following chart will assist the analysis in this case:
------------------------------------------------------------------------------------------------
'192 patent 1987 article manual
------------------------------------------------------------------------------------------------
Laser Q-switched ruby Q-switched ruby Q-switched ruby
red red red
------------------------------------------------------------------------------------------------
Aperture 3-8 mm 2.5 mm 5-7 mm
size
------------------------------------------------------------------------------------------------
Wavelength 694 nm 694 nm 698 nm[*]
------------------------------------------------------------------------------------------------
Dosage .4-10 j/cm2 .08 - 1.2 j/cm2 5-10 j/cm2
------------------------------------------------------------------------------------------------
Time 30-40 ns 40 ns 20-40 ns
------------------------------------------------------------------------------------------------
The chart clearly indicates that the manual's parameters are all within the ranges provided for within the '192 patent except for the time or duration. The difference, however, is insignificant because there is a great deal of overlap between the two, and more importantly, the range of 20-40 ns in the manual contemplates the 30-40 ns listed in the '192 patent. As for the 1987 article, the aperture size differs by .5 mm from the minimum of the range in the '192 patent, and the dosage overlaps with that listed in the '192 patent. Like the difference in the duration of the laser light between the manual and the '192 patent, the difference in the dosage is insignificant because of the overlap.
The Court finds that the difference in aperture size does not mandate a conclusion that the 1987 article did not anticipate the '192 patent. When a patent contains a range that varies from the parameter in a prior art, "the applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range." Woodruff, 919 F.2d at 1578 (finding that patentability could not be found in difference in carbon dioxide range between prior art and patent application because Woodruff failed to produce such evidence) (citations omitted); see also In re Ornitz, 53 C.C.P.A. 716, 351 F.2d 1013 (1965) ("Appellants have failed to demonstrate that the ranges of elements or the particular single composition they prefer possess properties distinct from alloys having the ranges of composition of [the prior art's] analysis [].").[4]
Dr. Dover, defendants' expert, opined that the difference in apertures used in the '192 patent and that in the 1987 article "is trivial and insignificant, and it would have been obvious to a person skilled in the field of the use of lasers ... to use an aperture 3 mm or larger instead of 2.5 mm." (Dover Decl. § 9). He also found that Claim One provided that the aperture be of "sufficient area to surround a hair follicle and overlie its papilla," and that an aperture of 2.5 mm could satisfy that requirement. Dr. Davies, plaintiff's expert, did not address the difference in the size of the aperture because he focused on the prior art's failure to discuss hair depilation. The Court concludes that plaintiff's decision to not provide the Court with this type of evidence is because the difference between the apertures is not critical to the anticipation analysis.
Plaintiffs' expert contends that the '192 uses selective photothermolysis to thermally destroy the papilla whereas the manual describes a process of fracturing the pigment *446 particles rather than conducting thermal energy. That contention is erroneous and a misreading of the manual. Page Two of the manual explains that the RD-1200 employs selective photothermolysis, which it describes as "involv[ing] a laser wavelength that is selectively absorbed by a target (tattoo or melanin), of an energy level that effects a change on the target, with a pulse duration that does not conduct thermal energy to surrounding tissue." Thus, the manual clearly states that the RD-1200 employs selective photothermolysis, and the comment about thermal energy deals with the surrounding tissue. Moreover, the discussion of fracturing the pigment particles does not, as plaintiffs' expert suggests, indicate that the RD-1200 does not use heat to eliminate tattoos.
Plaintiffs' position that neither the 1987 article nor the manual orients the laser in a substantially vertical manner is also misguided. Zaias testified at his deposition that if a laser is applied through an aperture plate that is placed in contact with the skin, the laser is positioned substantially vertically over the hair follicle opening. Even though the 1987 article and manual provide that apertures should be applied to the skin rather than a hair follicle, the Court confidently assumes that applying the aperture to the skin is no different than applying it to a hair follicle opening. Thus, the Court finds that the 1987 article and the manual implicitly applied the laser substantially vertically to the target.
1. New Use of an Old Process
Prior to engaging in the enablement analysis, the Court must first assess plaintiff's argument that the focus of the second element of the anticipation analysis should be the difference between the end results of the prior art rather than the similarity in the parameters. Essentially, plaintiff argues that the '192 patent is valid because it is a new use of an old process. Defendants, on the other hand, assert that whether or not the manual or the 1987 article discuss hair depilation is irrelevant because Zaias cannot patent a new benefit of an old process. As the Court will show infra, defendants have misinterpreted the law.
"The term `process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition or matter or material." 35 U.S.C. § 100(b) (emphasis added); see also Chisum, Chisum on Patents § 1.03, at 1-58 ("A process is ... an operation or series of steps leading to a useful result."). Thus, "a process or method which involves only a new use of an old material is patentable." Howes v. Great Lakes Press Corp., 679 F.2d 1023, 1029 (2d Cir.) (finding that invention was patentable because Howes created new use of known process), cert. denied, 459 U.S. 1038, 103 S. Ct. 452, 74 L. Ed. 2d 605 (1982).
Of course, applying an old process to a new use can be patented only if it survives the other standards for patentability. See Chisum, 1.03[8], at 1-777. If a different use of a known process is analogous or cognate to the prior uses, it will have difficulty defeating an argument that the patent is obvious under § 103. See Elrick Rim Co. v. Reading Tire Mach. Co., Inc., 264 F.2d 481, 486-87 (9th Cir.) (finding that using known paint spraying devices for spraying cement on tires was new use because Reading altered old process), cert denied 360 U.S. 920, 79 S. Ct. 1434, 3 L. Ed. 2d 1535 (1959); Chisum, § 1.03[8], at 1-179. Moreover, under 35 U.S.C. § 101, a process is not patentable because it is new and useful; it must arise out of invention or discovery. See, e.g., Elrick Rim, 264 F.2d at 487. One cannot claim to have invented or discovered a process if someone with ordinary professional skill could have developed the process. See, e.g., id.
Defendants rely on Woodruff, supra, 919 F.2d at 1578, and Verdegaal Brothers, Inc. v. Union Oil Co. of California, 814 F.2d 628, 632-33 (Fed.Cir.), cert. denied, 484 U.S. 827, 108 S. Ct. 95, 98 L. Ed. 2d 56 (1987), in arguing that a new use of an old process does not make the new use patentable. In Woodruff, the Federal Circuit relied on, inter alia, Verdegaal for the proposition that "[i]t is a general rule that merely discovering and claiming a new benefit of an old process cannot render the process again patentable." 919 F.2d at 1578. The Court recognizes the apparent contradiction between that statement *447 of the general rule and the law discussed supra, but a closer review of the cases indicates that Woodruff and Verdegaal are consistent with 35 U.S.C. § 100(b) and the cases and treatise cited supra.
In Verdegaal, Verdegaal obtained a patent involving a "process for making certain known urea-sulfuric acid liquid fertilizer products." 814 F.2d at 630. To make the fertilizer, four chemicals are placed together in particular proportions to make a reaction. Id. The claims in Verdegaal's patent stated the proportions of the chemicals, and that the chemicals needed to be combined in a non-reactive heat sink to prevent high temperature buildup. Id. The heat sink was a previously made batch of fertilizer. Id. A third-party's prior patent claimed the same proportions, and taught that the chemicals could be added to recycled fertilizer. Id. at 632.
In determining that the prior patent anticipated Verdegaal's patent, the Federal Circuit rejected Verdegaal's argument that the prior patent failed to recognize the concept that the old fertilizer could serve as the heat sink. Id. at 633. The panel explained that the prior patent need not have explicitly identified the old fertilizer as the heat sink because it was inherent in the process. Id. The panel concluded that the prior patent disclosed the same process of adding the chemicals and using the old fertilizer as a mixing base.
Woodruff involves a similar story. Woodruff applied for a patent involving a process designed to reduce the growth of fungi on fresh fruits and vegetables by placing them in a specified, modified atmosphere. 919 F.2d at 1575. That atmosphere increases the amount of carbon monoxide and decreases the amount of oxygen in ordinary air. Id. A prior patent had disclosed similar ranges of gases for maintaining the fresh appearance of fresh leafy and head vegetables. Id. at 1576. The prior patent was concerned with deterioration changes, including those related to bacteria. Id.
The Federal Circuit ruled that Woodruff's patent was obvious because the ranges of gases were virtually the same, and because Woodruff had not invented a new purpose for performing the claimed method. Id. at 1577. The panel stated that the prior patent's generic purpose, which was to prevent deterioration in fresh vegetables, covered the benefit claimed by Woodruff. Id. After articulating its version of the general rule of new benefits to old processes, the panel recognized that such benefits could be patented where an applicant made a completely new process or method from an obvious compound, id. at 1578 (citing Application of Shetty, 566 F.2d 81 (C.C.P.A.1977)), or an old compound. Id. (citing In re Marshall, 578 F.2d 301 (C.C.P.A.1978)).[5] The panel concluded, however, that Woodruff's application was obvious because the prior patent encompassed the claims in Woodruff's application. Id.
The difference between this case and Verdegaal is the end result of the processes in the patent and the prior art/patent. In Verdegaal, the end results of the process in the patent were the same as that in the prior art/patent. In this case, the end results differ the patent describes hair depilation whereas the prior art involves treating skin. Despite defendants' assertions to the contrary, the difference in end results is significant because the panel in Verdegaal did not discuss enablement. However, the panel's language, i.e., "disclosed process," implied that its ruling on new use dictated a finding of enablement.
The difference between Woodruff and this case is that Woodruff considered obviousness.[6] A court will confront the issue of obviousness only if it finds that the prior art *448 did not enable someone of ordinary skill to produce the '192 patent. Moreover, the panel in Woodruff recognized that a completely new use of an old matter could be patentable.
Although plaintiffs could prevail by showing that their process is new, i.e., they have slightly altered the old process, see Chisum, § 1.03[8], at 1-167, § 1.03[8][b], at 1-171-72, the Court has foreclosed that option by determining that the claims of the '192 patent are described in the prior art. Thus, plaintiffs can only defeat anticipation by showing that the prior art did not enable Zaias to apply the process to hair removal. In other words, plaintiff must show that hair depilation was an unknown subject.
D. Enablement
Defendants argue that plaintiffs have not produced any evidence to show that the prior art was not enabling. They assert that the manual is enabling because it provides more information about the treatment and the laser than does the '192 patent. Moreover, they state that the manual shows actual clinical results whereas Zaias did not conduct any experiments prior to filing his application for the '192 patent. Defendants also contend that the 1987 article is enabling because it contains more information about the use of the Q-switched ruby laser than does the '192 patent. Thus, they conclude that summary judgment should be granted because plaintiffs have not met their burden of showing that the prior art was not enabling. Plaintiffs counter that the settings for hair removal and tattoo removal are different, and that the prior art is not enabling because they could not teach someone skilled in the art to invent the procedure in the '192 patent.
The question this Court must answer is whether a person skilled in the art would have been able to produce the '192 patent after reading the manual and/or the 1987 article. As this Court stated ten years ago: "The publication must sufficiently describe the patented device so that one skilled in the art can recognize and comprehend therefrom the essentials of the claimed invention without need of further research or experimentation." Refac Elecs. Corp. v. R.H. Macy & Co., 9 U.S.P.Q.2d 1497, 1504, 1988 WL 93835 (D.N.J.1988), aff'd, 871 F.2d 1097 (Fed.Cir.1989). In this case, the ordinary person would be someone who has knowledge of or experience with using lasers for treating dermatological issues. Thus, that person includes, but is not limited to, a dermatologist, an engineer, and a nurse who has observed procedures where lasers were used to treat skin.
The experts disagree whether someone skilled in the art could have developed plaintiff's application of the process described in the prior art. This Court finds Zaias's deposition to be more telling than either of the experts' opinions. Zaias conceded in his deposition that he did not conduct any experiments prior to filing his application for a patent, and that the RD-1200 and the manual sparked his idea for removing hair with a Q-switched ruby laser. In fact, Zaias telephoned Dr. Anderson and discussed the RD-1200's potential for hair depilation prior to filing his application for the '192 patent. Those concessions are critical because anyone skilled in the art would recognize that hair is removed when tattoos are removed with lasers. The logical conclusion is that lasers might be able to remove hair if applied in the correct fashion. Most importantly, as stated in Refac, enablement occurs when no experiments or further research is needed. Finally, Zaias's failure to submit the manual to the PTO indicates that he may have been concerned about the novelty of his method. In light of those facts, this Court would be hard-pressed to determine that someone skilled in the art would not look at the manual and think about removing hair.
Plaintiffs' final two arguments for why the manual did not anticipate the '192 patent are unpersuasive. Prior to this action, plaintiffs objected to defendants' use of Dr. Dover as an expert in this case because he had worked as a consultant for Palomar and Spectrum. Defendants responded that they had no relationship with Dr. Dover except for a two-week engagement on a "discreet matter" unrelated to hair removal. Plaintiffs have notified the Court that Dr. Dover appeared in a promotional videotape for defendants for the RD-1200 in 1996. They conclude that defendants' position means that the RD-1200 is *449 unrelated to hair depilation and cannot anticipate the '192 patent. That argument is unpersuasive because as shown supra, a process can be anticipated even if the prior art does not contemplate the new benefit.
In 1996, Dr. Anderson co-authored an article entitled "Damage to hair follicles by normal mode ruby laser pulses" in which the authors stated that "destruction of hair follicles based on the theory of selective photothermolysis has not been previously described."[7] (Schwab Decl.Ex. 4). They also wrote:
Previous studies have shown deep selective damage to isolated pigmented cells in follicles in animals after Q-switched ruby laser exposures.... However, the submicrosecond pulses of Q-switched ruby lasers are probably not ideal for follicle destruction because of insufficient heat transfer during the pulse to other nonpigmented cells of the follicle.
(footnote omitted). Thus, plaintiffs conclude that the 1987 article did not teach hair depilation to someone skilled in the art, i.e., the authors.
Plaintiffs' argument is creative, but unpersuasive. Dr. Anderson's and his co-authors statement that the Q-switched ruby laser is not ideal for hair depilation merely means that they believed that the long pulses of the normal ruby laser would be more effective than the Q-switched ruby laser. They did not state that the Q-switched ruby laser could not remove hair. Even if the authors are correct about the inadequacies of the Q-switched ruby laser, the Court still finds that the manual anticipated the '192 patent because, as shown in the chart supra, the procedures are virtually identical. Like defendants' statements regarding Dr. Dover's consulting position, the authors' statement that destruction of hair follicles by selective photothermolysis had never been described is not dispositive because prior art can anticipate a process without having considered an application. As stated, the Court finds that the manual enabled Zaias to develop his method.
Thus, the Court finds that the '192 patent is invalid because the manual anticipated its method of hair depilation. Whether the 1987 article enabled Zaias to develop his method for hair depilation is a more difficult question. That question and the issue of obviousness, however, is moot given the Court's decision on the manual.
II. Attorneys' fees
Defendants seek attorneys' fees under 35 U.S.C. § 285, which provides that "[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party." "Findings of exceptional case have been based on a variety of factors; for example, willful or intentional infringement, inequitable conduct before the [PTO], vexatious or unjustified litigation, or other misfeasant behavior." Multiform Desiccants, Inc., v. Medzam, Ltd., 133 F.3d 1473, 1481-82 (Fed. Cir.1998).
Defendants have not stated any reason for why this case is exceptional. A conclusory statement that fees are justified does not show by clear and convincing evidence that the case is exceptional. The Court recognizes that Zaias's failure to submit the manual to the PTO could be considered acting in bad faith. Defendants have not produced any evidence, however, to show that Zaias's omission was intentional or willful. Thus, the Court will deny their motion for fees.
CONCLUSION
For the reasons stated supra, defendants' motion for summary judgment is granted on the first two counts of plaintiffs' Complaint.
An appropriate Order is attached.
ORDER
In accordance with the Court's Opinion filed herewith,
It is on this 18th day of May, 1998
*450 ORDERED that defendants' motion for summary judgment is granted on the first two counts of plaintiffs' Complaint.
NOTES
[1] In his declaration, Zaias states that his observation of hair loss in the manual supported his theory that a laser could damage papilla, cause the hair to fall out, and delay or prevent regrowth. (Zaias decl. ¶ 17).
[2] During his deposition, Zaias also testified that he had done experiments prior to filing his patent application. He claims that a hurricane destroyed the results of those experiments. In any event, he found that sixty to eighty percent of the hair grew back. Even though his patent stated that the device accomplished "permanent substantial hair removal," he did not inform the PTO of these results. The Court concludes that the inconsistency in the deposition transcript undermines Zaias's assertion that he performed any experiments because he did not receive the RD-1200 until after he filed his application for a patent and because he did not own another laser.
[3] Defendants assert that the '192 patent cannot be new because laser technology and how to remove hair, i.e., destroy the papilla, were known prior to the application for the '192 patent. Although this argument does not warrant discussion, the Court notes that defendants' use of inflammatory language, i.e., plaintiffs are abusing and deceiving the patent system, does not advance their case or the civility of the law. Persuasive arguments can be made without making incendiary comments about the opposition. This is the Court's call for a kinder and gentler legal community.
[4] Although Woodruff involved an obvious analysis, the Court finds the Federal Circuit's reasoning instructive.
[5] In Marshall, the applicant sought a patent to use a drug for weight loss. The drug had been used in a much smaller dosage to treat peptic ulcers, esophagitis, gastritis, and irritable colon syndrome. The Physicians' Desk Reference ("PDR") for the drug did not discuss weight loss. The Court stated: "If anyone ever lost weight by following the PDR teachings it was an unrecognized accident. An accidental or unwitting duplication of an invention cannot constitute an anticipation." 578 F.2d at 304. As shown in the discussion on enablement infra, the use of a Q-switched ruby laser for hair removal was not an accidental or unwitting duplication of an invention.
[6] The Federal Circuit in Woodruff did not address anticipation because the PTO rejected the patent application under § 103.
[7] Dr. Anderson and some of his co-authors designed the laser Epilaser ®.
[*] The manual also states: "The ruby laser operating at 694 nm is also readily absorbed by the melanin." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263677/ | 461 Pa. 471 (1975)
336 A.2d 883
PHILADELPHIA COMMUNITY CABLE COALITION ASSOCIATION by John F. O'Rourke, Trustee ad Litem, and John A. Zeh, Appellants, and Metrotel Communications, Inc.
v.
TELESYSTEMS CORPORATION et al.
Supreme Court of Pennsylvania.
Argued November 11, 1974.
Decided March 18, 1975.
Rehearing Denied May 19, 1975.
*472 Edward M. Kopanski, Braxton, Johnson & Kopanski, Philadelphia, for appellants.
*473 John J. Runzer, Nancy J. Gellman, Pepper, Hamilton & Scheetz, Philadelphia, for appellees, Telesystems Corp. and Communications Properties, Inc.
Barry E. Ungar, Mann & Ungar, Philadelphia, for appellees, Phila. Cable Television Co. and Mid N.Y. Broadcasting Corp.
Gregory M. Harvey, Morgan, Lewis & Bockius, Philadelphia, for appellees, Bulletin Co. and North Phila. Cable Television Co.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
O'BRIEN, Justice.
This appeal arises from a decree of the Court of Common Pleas of Philadelphia which sustained preliminary objections and dismissed the complaint in equity filed by appellants, Philadelphia Community Cable Coalition Association (Coalition) and John A. Zeh (Zeh), a resident of Philadelphia,[1] against appellees.
This appeal deals with the granting of six cable television franchises in Philadelphia. In 1966 Philadelphia City Council divided the city into six different television cable areas with franchise rights being granted to six different cable television companies. The six ordinances all contained the following identical provisions (except for the names of the franchise holders):
"Section 3. Telesystems Corporation may enter into an agreement with any person now authorized to erect poles, overhead wires or cables and underground wires or cables for the purpose of sharing those facilities. The conditions set forth in Section 2 of this ordinance shall apply to the use of joint facilities insofar as those *474 facilities are used by Telesystems Corporation for television transmission."
* * * * * * * *
"Section 6. The authorization granted by this ordinance may be exercised only by Telesystems Corporation except that it may be assigned to an affiliate or subsidiary of Telesystems Corporation substantially owned by Telesystems Corporation, provided that the assignor and assignee undertake to be bound by the terms and conditions of this ordinance."
On December 14, 1973, appellee Telesystems Corporation (Telesystems) informed City Council that formal agreements had been entered into among itself, appellees Philadelphia Cable Television Co. (Philadelphia Cable) and Bulletin Company (Bulletin), by which Telesystems would operate the television cable network in the two franchise areas previously allocated to Philadelphia Cable and Bulletin. The agreements among the parties indicated that Telesystems was a twenty-one per cent owner of Bulletin, with an option to acquire the remaining seventy-nine per cent, and that Telesystems would in the future acquire one hundred per cent ownership of Philadelphia Cable.
On January 14, 1974, appellants Coalition and Zeh filed a complaint in equity against three franchise operators: Telesystems, Philadelphia Cable and Bulletin. This complaint sought to enjoin the proposed operation by Telesystems within the areas originally granted to Philadelphia Cable and Bulletin. The gravamen of the complaint is that the above agreement was in violation of the franchise granted by City Council and that such agreement would create a monopoly, to the detriment of Coalition and Zeh.
On January 21, 1974, a hearing was held on appellees' preliminary objections; the chancellor granted appellees' motion to dismiss for lack of standing on the part of appellants and this appeal followed.
*475 Appellants argue that they do in fact have standing to contest the corporate actions of appellees. Appellants contend that the Act of June 19, 1871, P.L. 1360, § 1, 15 P.S. § 117, grants them standing. We agree. 15 P.S. § 117 provides:
"In all proceedings in courts of law or equity of this commonwealth, in which it is alleged that the private rights of individuals or the rights or franchises of other corporations are injured or invaded by any corporation claiming to have a right or franchise to do the act from which such injury results, it shall be the duty of the court in which such proceedings are had, to examine, inquire and ascertain whether such corporation does in fact possess the right or franchise to do the act from which such alleged injury to private rights, or to the rights and franchises of other corporations, results, and if such rights or franchises have not been conferred upon such corporation, such courts, if exercising equitable power, shall, by injunction, at suit of the private parties or other corporations, restrain such injurious acts; and if the proceedings be at law for damages, it shall be lawful therein to recover damages for such injury as in other cases." (Emphasis supplied.)
This statute grants standing to individuals, groups of individuals or other corporations which alleged that their private rights are injured or invaded by a corporate act in excess of a corporation's charter or franchise. Appellants alleged in their complaint that the take-over by Telesystems of the franchise areas of Philadelphia Cable and Bulletin would create a monopoly interest in one-half of the wards of the City of Philadelphia and thereby create a restraint of trade in the pricing and servicing of cable television which would injure them.
An examination of the case law surrounding the above-quoted statute indicates that an allegation of injury *476 in a complaint is sufficient in law to grant standing to persons situated similarly to appellants. See Gingrich v. Blue Ridge Memorial Gardens, 444 Pa. 420, 282 A. 2d 315 (1971). See also Edwards v. Pittsburg Junction Railroad Company, 215 Pa. 597, 64 A. 798 (1906). Moreover, the granting of standing only recognizes that appellants have alleged sufficient facts to proceed to a hearing. Standing does not relieve appellants of the burden of proving injury or invasion of their private rights, because of appellee's alleged actions in excess of its franchise rights granted by the Philadelphia City Council.
Decree vacated. Case remanded for proceedings consistent with this opinion. Each party to bear own costs.
ROBERTS, J., filed a dissenting opinion in which JONES, C.J., and POMEROY, J., join.
POMEROY, J., filed a dissenting opinion in which JONES, C.J., and ROBERTS, J., join.
ROBERTS, Justice (dissenting).
On the basis of a statute clearly inapplicable to this case, the majority concludes that appellants have standing to bring an action against the six corporations holding city-granted franchises to develop cable television in Philadelphia. Appellants having asserted no valid ground affording them standing to institute this action, I dissent.
The majority decides that section 1 of the Act of June 19, 1871, P.L. 1360, 15 P.S. § 117 (1967)[1] grants appellants *477 standing. We interpreted that section in Gingrich v. Blue Ridge Memorial Gardens, 444 Pa. 420, 282 A.2d 315 (1971), where Mr. Chief Justice Jones wrote for a unanimous Court:
"The 1871 Act does not usurp the power of the Commonwealth to inquire into ultra vires acts of a corporation or to forfeit a corporation charter; the statute simply grants an individual or corporate body the right in a court of equity to inquire whether or not a corporation is exceeding its charter powers, and, thereby, inflicting an injury upon such individual as distinguished from the public. Moreover, the individual or corporate body must demonstrate to the court of equity that the acts in excession of its charter power directly invade his rights as distinguished from consequential injuries."
Id. at 424, 282 A.2d at 317.
Clearly, under that decision, unless appellants allege that they have sustained injury in some capacity other than as members of the public, they have not established standing under the Act. Appellants concede in their brief that their alleged injury is in fact shared by the community at large. According to Gingrich, this admission is fatal to appellants' claim of standing under the Act of 1871.
The only other basis upon which appellants claim standing is section 1 of the Act of May 3, 1927, P.L. 515, *478 17 P.S. § 305, 1962.[2] This section permits a citizen to bring an action to enjoin encroachments upon sidewalks in front of certain edifices. On this record the claim is patently frivolous.
I would affirm the decision of the chancellor sustaining appellees' preliminary objections.
JONES, C.J., and POMEROY, J., join in this dissent.
POMEROY, Justice (dissenting).
The appellants in their complaint have not alleged how any rights or interests of theirs would be injured by appellees' proposed action. I must therefore dissent from the Court's action today.
The Act of June 19, 1871, P.L. 1360, § 1, 15 P.S. § 117, cited by the majority, by its very terms requires that in order for parties to seek relief under that statute it must be "alleged that the private rights of individuals or the rights or franchises of other corporations are injured or invaded". In the case of Gingrich v. Blue Ridge Memorial Gardens, 444 Pa. 420, 282 A.2d 315 (1971), we interpreted this requirement in the following manner: "The statute simply grants an individual or corporate body the right in a court of equity to inquire whether or not a corporation is exceeding its charter powers, and, thereby, *479 inflicting an injury upon such individual as distinguished from the public." (Emphasis added.) Id. at 424, 282 A.2d at 317.[*]
Appellant Philadelphia Community Cable Coalition avers in its complaint, as an injury, that "The citizens would suffer". The complaint makes clear the Coalition's conviction that the proposed acts of appellees would be detrimental to the community; it seeks an injunction to vindicate the community's interest. Its brief explains that the acts complained of "infringe upon the rights of the individual taxpayer and the community at large as represented by [the Coalition]". (Emphasis added.) Thus, in its view, the interests of the 40-member Coalition and those of the community are the same. The Coalition's president testified (at a hearing on the prayer for preliminary injunction) that the group had not sought, and did not intend to seek, a cable television franchise. Coalition has clearly not asserted any injury different from that which it believes the public at large will suffer. It thus has no standing under the Act of 1871.
Appellant Zeh is in no better position. As a resident of one of the wards covered by the franchise ordinances, he claims he will be damaged by appellee's proposed action in that he would be denied his right to have public hearings into the qualifications of the cable television company which is to operate in his area. Without passing on the merits of whether any such right exists, it is apparent that Zeh, like the Coalition, has failed to allege *480 that any right of his, distinct from that of the community at large, is about to be invaded or injured by appellees. He also, in my opinion, lacks standing to seek this injunction.
Accordingly, I would affirm the decree of the lower court sustaining appellees' preliminary objections.
JONES, C.J., and ROBERTS, J., join in this dissent.
NOTES
[1] Metrotel Communications, Inc., a co-plaintiff in the court below, has not appealed the dismissal of the complaint.
[1] That section provides:
"In all proceedings in courts of law or equity of this commonwealth, in which it is alleged that the private rights of individuals or the rights or franchises of other corporations are injured or invaded by any corporation claiming to have a right or franchise to do the act from which such injury results, it shall be the duty of the court in which such proceedings are had, to examine, inquire and ascertain whether such corporation does in fact possess the right or franchise to do the act from which such alleged injury to private rights, or to the rights and franchises of other corporations, results, and if such rights or franchises have not been conferred upon such corporation, such courts, if exercising equitable power, shall, by injunction, at suit of the private parties or other corporations, restrain such injurious acts; and if the proceedings be at law for damages, it shall be lawful therein to recover damages for such injury as in other cases."
For the purpose of this dissent, I will assume that this section applies to limitations on corporate power contained in a franchise granted by a municipality as well as to those imposed by the corporate charter itself.
[2] That section provides:
"The courts of common pleas of the several counties of this Commonwealth, in addition to the powers and jurisdictions heretofore possessed and exercised, shall have the jurisdiction and powers of a court of chancery, so far as relates to the prevention, restraint, and abatement of encroachments on public sidewalks in front of residences, churches, hotels, apartment houses, or retail stores contrary to law and prejudicial to the interests of the community, upon the complaint of any municipality, or any citizen thereof, alleging injury thereby, without regard to whether or not such citizen has suffered damage or injury which is special to himself, where the said municipality has failed or refused to institute action for the prevention or restraint of such encroachments in front of residences, churches, hotels, apartment houses, or retail stores contrary to law, within thirty days after written notice thereof to such municipality by or on behalf of such citizen."
[*] For similar statements of the requirements of the Act, see Penna. R.R. Co. v. Greensburg, Jeannette & Pittsburg Street Railway Co., 176 Pa. 559, 578, 35 A. 122, 130 (1896) ("The act of 1871 applies to direct interference with rights, not consequential injury to interests . . ."); Andel v. Duquesne Street Railway, 219 Pa. 635, 639, 69 A. 278, 279 (1908) ("The private rights of individuals referred to in this act are rights of property of some character"). See also Blankenburg v. Phila. Rapid Transit Co., 228 Pa. 338, 341, 77 A. 506 (1910); Edwards v. Pittsburg Junction R.R. Co., 215 Pa. 597, 603, 64 A. 798 (1906). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/827015/ | Order Michigan Supreme Court
Lansing, Michigan
September 6, 2011 Robert P. Young, Jr.,
Chief Justice
143047 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
WHRJ, L.L.C. and REI ISLAND LAKE Mary Beth Kelly
OWNER, L.L.C., Brian K. Zahra,
Plaintiffs/Counter- Justices
Defendants-Appellees,
v SC: 143047
COA: 295299
Wayne CC: 09-008314-CZ
CITY OF TAYLOR,
Defendant/Counter-Plaintiff/
Third-Party Plaintiff-Appellant,
and
NATIONAL CITY BANK,
Third-Party Defendant-Appellee,
and
REAL ESTATE INTERESTS GROUP, INC.,
Third-Party Defendant.
_________________________________________/
On order of the Court, the application for leave to appeal the March 29, 2011
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 6, 2011 _________________________________________
d0829 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338044/ | 627 S.E.2d 391 (2006)
277 Ga. App. 649
BERRY et al.
v.
CITY OF EAST POINT et al. (Two Cases).
Nos. A06A0253, A06A0254.
Court of Appeals of Georgia.
February 17, 2006.
*394 Bobby L. Berry, pro se.
Melvin A. Pittman, pro se.
Fincher & Hecht, Gregory K. Hecht, Jonesboro, Hunton & Williams, Benjamin F. Johnson IV, Atlanta, S. Ralph Martin, Jr., Atlanta, for appellees.
BLACKBURN, Presiding Judge.
In these related cases, Bobby L. Berry and Melvin A. Pittman ("Intervenors"), pro se, intervened in a proceeding brought by the State of Georgia against the City of East Point ("City") and the East Point Building Authority ("Building Authority") to validate bonds in the amount of $54,000,000. Intervenors were members of the board of the Building Authority and were the two dissenting members in the board's vote to issue the bonds. In Case No. A06A0253, Intervenors appeal an order by the Fulton County Superior Court validating the bonds. In Case No. *395 A06A0254, Intervenors appeal an order by the Fulton County Superior Court requiring them to post a $625,000 surety bond, pursuant to OCGA § 50-15-2, to cover the costs incurred by the Building Authority due to added delay, in the event the Authority prevailed in Intervenors' appeal of the bond validation order. Because the trial court properly required Intervenors to post a bond pursuant to the Public Lawsuits Act, and the Intervenors did not post such a bond, we affirm the order in Case No. A06A0254, and dismiss Intervenors' appeal in Case No. A06A0253.
The undisputed record shows that the Building Authority sought to issue revenue bonds in the amount of $54,000,000 to finance certain improvements to its storm water and sanitary waste water facilities ("sewer project"). The purpose of the sewer project is, in part, to comply with a consent order between the City and the Georgia Environmental Protection Division which required the City to address historical sewer spills and prevent future ones. The consent order established a timetable for construction and created stipulated penalties for violations of the consent order.
The sewer project facilities would be owned by the Building Authority and leased to the City for an amount sufficient to pay the principal and interest on the bonds. The City would levy ad valorem taxes as necessary to make the payments required under the lease agreement.
After a bond validation hearing in which the Intervenors participated, the trial court entered an order validating the bond, which the intervenors appealed in Case No. A06A0253. Following a subsequent hearing, the trial court issued an order pursuant to the Public Lawsuits Act,[1] requiring the Intervenors to post a $625,000 surety bond if they decided to pursue an appeal of the validation order. Intervenors did not post the bond, and Intervenors appealed the order requiring a surety bond in Case No. A06A0253.
Case No. A06A0254
1. Intervenors contend that the trial court erred in requiring them to post a surety bond pursuant to the Public Lawsuits Act.[2] We disagree.
The Public Lawsuits Act gives courts the authority to require a bond of any party who opposes a public improvement project in a public lawsuit. The purpose of the act is to protect the public from increased financial costs caused by the filing of non-meritorious or frivolous litigation against the project.... As codified, the act permits any political subdivision in a public lawsuit to petition for a court order that the opposing party or intervenors be dismissed unless they post a bond.... The bond requirement is not limited to appeals, but may be imposed by the trial court whenever it determines that a bond would be in the public's interest.... If no bond is filed within ten days of an order, the opposing party or intervenor shall be dismissed by operation of law, but may appeal the order.... On appeal, we must determine whether the trial court abused its discretion in requiring the intervenors to post a [$625,000] surety bond. The issue is whether the trial court correctly concluded that it was in the "public interest" to require a surety bond in this validation proceeding.
(Footnotes omitted.) Haney v. Dev. Auth. of Bremen.[3]
"[I]n order to determine if the trial court abused its discretion in ordering the imposition of a surety or supersedeas bond, the appellate court must first determine whether the claims raised by the intervenors are meritorious." Hay v. Newton County.[4] In a bond validation hearing, the role of the trial court is to determine whether the bond proposal is "`sound, feasible, and reasonable.'" *396 Carter v. State of Ga.[5] Such determinations are questions of fact and "will not be set aside if there is any evidence to support" them. (Punctuation omitted.) Hay v. Newton County.[6]
2. Intervenors contend that the trial court erred in not deciding certain matters of law, in that the court's validation order failed to specifically rule on each of their arguments. We disagree. The court's order contains findings addressing each necessary element of the validation proceeding and explicitly stated that the court had considered and dismissed Intervenors' motion and petition for non validation. Therefore, the trial court's order did not err by failing to rule on Intervenors' claims. See, e.g., Portis v. State.[7]
3. Intervenors contend that the Building Authority violated its internal competitive bidding procedures when it selected bond counsel and the underwriters for the bond proceeding. "In bond validation suits under our law any question that goes to the power to issue and validity or regularity of the issuance of such bonds may be properly raised." (Punctuation omitted.) Dade County v. State of Ga.[8] However, a dispute as to the process for selection of the outside counsel and underwriter is not material to the merits of the bond proposal. Therefore, this enumeration is without merit.
4. Intervenors also contend that the trial court erred in validating the bond, because they dispute representations and warranties made in the proposed lease agreement, which states that the City had no knowledge of pending or threatened legal actions that would affect the ability of the City to perform its obligations under the lease. Intervenors assert that this is a misrepresentation affecting the validity of the proposed lease agreement, in that Intervenors assert that a prior lawsuit (not involving the City of East Point) involving the City of Atlanta's ability to collect storm water fees could jeopardize the City of East Point's ability to pay the principal and interest on the bonds.
Intervenors do not cite specific pending or threatened litigation (other than the threat of a challenge to the bond validation itself) that would materially affect the ability of the City to perform its obligations under the lease. Furthermore, the alleged misrepresentations are contained in the representations and warranties in an unexecuted lease, which is subject to revision until the time the lease is executed. Therefore, an inaccuracy, if any, can be cured and does not in and of itself make the bond proposal invalid.
5. Intervenors next contend that the bond proposal was not valid because the Building Authority had not properly registered with the Georgia Department of Community Affairs, as required by OCGA § 36-80-16(e) and (f), which provide:
(e) All local government authorities authorized to operate in the State of Georgia must register annually with the Department of Community Affairs.
(f) Any local government authority which fails to register with the Department of Community Affairs shall not incur any debt or credit obligations until such time as it meets the registration requirement. Failure to register shall not have any adverse affect on any outstanding debt or credit obligation.
(Emphasis supplied.)
Here, the Building Authority admits that it had not complied with the registration requirement at the time the Board voted to propose the bond. However, as found by the trial court, evidence showed no violation of OCGA § 36-80-16(f), because the Authority demonstrated that it had properly registered before the bond proposal was validated by the trial court. Therefore, the procedural deficiency, if any, had been cured before the validation hearing.
*397 6. Intervenors next challenge the City's authority to levy taxes to make the payments required under the lease with the Building Authority. The bond proposal would require the City to make lease payments to the Building Authority, which the Building Authority would then use to pay the principal and interest on the bond. Intervenors contest this arrangement for three reasons: (a) it would violate Article IX, Section V, Paragraph I(a) of the Georgia Constitution in that it creates "new debt" without a referendum, (b) it would constitute a pledge of the City's full faith and credit, in violation of OCGA § 36-82-66, which provides that bond holders shall not "have the right to compel any exercise of the taxing power" of the issuer, and (c) the arrangement would unlawfully allow the City to levy taxes above the purported limit of 15 mills. We disagree.
(a) Creation of New Debt. The Georgia Constitution prohibits municipalities from creating "new debt without the assent of a majority of the qualified voters" of the municipality. Ga. Const.1983, Art. IX, Sec. V, Par. I(a). However, here, the bond proposal creates a contractual obligation on the part of the City to make lease payments to the Building Authority. As this is a valid contract between the two entities which are authorized to undertake the contemplated sewer project arrangement, it falls into the "intergovernmental contract" exception to the above rule. See Ga. Const.1983, Art. IX, Sec. III, Par. I(a). Therefore, the City's payment "for the use of the [sewer project] is a debt, but it is a debt authorized under the constitution." (Punctuation omitted.) Clayton County Airport Auth. v. State of Ga.[9]
(b) Pledge of Taxing Power. Intervenors also contend that the bond proposal would compel the City to raise taxes in contravention of OCGA § 36-82-66, which provides, in relevant part: "No holder or holders of any such bonds shall ever have the right to compel any exercise of the taxing power of the governmental body to pay any such bonds or the interest thereon." Here, the City would pledge its full faith and credit to make payments required under the lease with the Building Authority.
Although the bonds are obligations of the [Building] Authority and the [City] cannot pledge its full faith and credit to pay them, the [City] does have the authority under the intergovernmental clause of the Constitution, to enter into contracts with the Authority and to pledge its full faith and credit and levy taxes to meet its contractual obligations pursuant to the law of contracts.
(Citation and punctuation omitted.) Clayton County Airport Auth., supra, 265 Ga. at 26(2), 453 S.E.2d 8. Therefore, the pledge of the taxing power is permissible, and the trial court did not err in so ruling. See Reed v. State of Ga.[10]
(c) Limit on Taxation. Intervenors contend that the trial court erred when it ruled that the City's authority to levy taxes to make payments under the lease is not limited by a provision of the City charter that limits the City's authority to levy ad valorem taxes to 15 mills on each dollar of taxable property. We disagree.
The relevant provision of the City's charter, adopted in 1972, limits the City's authority to levy ad valorem taxes on property to 15 mills per dollar of taxable value.[11] However, the act creating the Building Authority, adopted in 1983, explicitly authorizes the City to
obligate itself to pay the amounts required under any contract entered into with the Authority from funds received from taxes to be levied and collected for that purpose to the extent necessary to pay the obligations contractually incurred ... and, when such obligation is made to make such payments from taxes to be levied for that purpose, then the obligation shall be mandatory to levy and collect such taxes from year to year in an amount sufficient to *398 fulfill and fully comply with the terms of such obligation.[12]
(Emphasis supplied.) This language "shall be liberally construed for the accomplishment of its purposes."[13] To the extent that the emphasized language conflicts with the earlier enacted 15-mill limitation on the City's taxing authority, the later-enacted provision must govern. Pawnmart, Inc. v. Gwinnett County[14] ("[i]t is well-settled in Georgia that the rule for construing statutes which may be in conflict is that the most recent legislative expression prevails") (punctuation omitted). Indeed, the Act by its own terms repeals "[a]ll laws and parts of laws in conflict." [15] "Furthermore, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent, to resolve any inconsistency between them." (Punctuation omitted.) Metzger v. Americredit Financial Svcs.[16] Accordingly, we hold that the trial court did not err in validating this arrangement in the bond proposal.
7. Intervenors contend that the process by which the Building Authority approved the bond proposal was improper. First, Intervenors allege that a dispute between the Building Authority and the City over the payment of prior invoices for attorney fees was used by the City to coerce the Building Authority to vote in favor of issuing the bond. Intervenors cite to a letter from the City requesting the Building Authority to issue the bonds and stating that the proceeds from the bonds would cover a one-time payment of $1,212 for certain prior legal expenses of the Building Authority. The letter is worded in the form of a "request" from one governmental body to another, and the court was authorized to find no evidence of "coercion or intimidation," as alleged by the Intervenors.
Intervenors also allege that procedural irregularities occurred in the Building Authority's meeting and vote on the bond proposal, including violations of the Open Meetings Act and the Building Authority's bylaws. There was, however, evidence from the Secretary of the Building Authority which showed that the Authority's meeting and vote on the bond proposal were properly conducted and that the public participation requirements were met. "[O]n appeal [an appellate] court will not set aside a trial court's decision as to an issue of fact in a bond validation hearing if there is any evidence to support it." Alexander v. Macon-Bibb County Urban Dev., etc.[17] Therefore, in light of evidence that the Building Authority properly considered and approved the bond proposal, we discern no error.
8. Intervenors allege that the trial court erred in not timely submitting their appeal to the Court of Appeals, despite the fact that, by their own admission, they did not file the transcript within 30 days of their notice of appeal as required by OCGA § 5-6-42.[18] Intervenors correctly point out that OCGA § 5-6-43(a) requires the clerk of the trial court to transmit the record and transcript to the appellate court within five days of the date the transcript was filed. The clerk of the trial court apparently did not do so in this case. However, as Intervenors seek to prevent the validation of the bond proposal, and the trial court's order was stayed on appeal, we discern no harm caused to Intervenors by the delay of the clerk of the trial court to transmit the appeal to this Court. Further, as "[a]ppellants are not accountable for delays caused by clerks of court," we see no reason to hold appellees accountable for such delays. Crown Diamond *399 Co. v. N.Y. Diamond Corp.[19] We note that, in accordance with OCGA § 50-15-3, we have expedited this appeal.
9. Intervenors next cite testimony by appellees' expert, the City's Public Works Director, that he could not recall whether a study was done of the City's sewer system, and, without pointing to any specific requirement for a study, contend that the trial court erred in validating the bond proposal despite this fact. First, we note that the testimony complained of was elicited after the trial court validated the bond, so the trial court could not have erroneously ignored it to issue the validation order. Second, a trial court's determination as to the soundness, feasibility, and reasonableness of a bond proposal "will not be set aside if there is any evidence to support" it. (Punctuation omitted.) Hay v. Newton County, supra, 273 Ga.App. at 423, 615 S.E.2d 234. Here, there was evidence to support the trial court's conclusion that the bond proposal was passed by the proper legislative bodies and within their scope of authority. Accordingly, this enumeration fails.
10. Finally, the Intervenors challenge the trial court's refusal to grant their motion for joinder. Intervenors moved for joinder despite the fact that they were already properly participating in the bond validation action under OCGA § 36-82-77(a). They were heard by the trial court at two separate hearings, one on the merits of the bond validation and one on the appellees' motion to require a surety bond pursuant to the Public Lawsuits Act. Each time, the Intervenors fully availed themselves of the opportunity to participate offered to them by the trial court. Also, in each case, Intervenors availed themselves of the appellate process and filed briefs with this court. Accordingly, Intervenors have fully participated in the bond validation process, and this enumeration is without merit.
Intervenors' remaining enumerations are duplicative of the issues addressed above and are therefore moot. Because we determined Intervenors' claims lacked merit, we affirm the judgment requiring them to post a surety bond.
Case No. A06A0253
Because the trial court properly required Intervenors to post a surety bond, and they did not, we dismiss the appeal in Case No. A06A0253. See Hay v. Newton County, supra, 246 Ga.App. at 48(3), 538 S.E.2d 181.
Judgment affirmed in Case No. A06A0254. Appeal dismissed in Case No. A06A0253.
MIKELL and ADAMS, JJ., concur.
NOTES
[1] OCGA § 50-15-1 et seq.
[2] OCGA § 50-15-2.
[3] Haney v. Dev. Auth. of Bremen, 271 Ga. 403, 404-406(1)(2) 519 S.E.2d 665 (1999).
[4] Hay v. Newton County, 246 Ga.App. 44, 46(2), 538 S.E.2d 181 (2000).
[5] Carter v. State of Ga., 93 Ga.App. 12, 19(7), 90 S.E.2d 672 (1955).
[6] Hay v. Newton County, 273 Ga.App. 423, 615 S.E.2d 234 (2005).
[7] Portis v. State, 149 Ga.App. 50, 52, 253 S.E.2d 441 (1979).
[8] Dade County v. State of Ga., 75 Ga.App. 330, 334(2)(c), 43 S.E.2d 434 (1947).
[9] Clayton County Airport Auth. v. State of Ga., 265 Ga. 24, 25(1), 453 S.E.2d 8 (1995).
[10] Reed v. State of Ga., 265 Ga. 458, 459(1), 458 S.E.2d 113 (1995).
[11] Ga. L. 1972, p. 2201, § 111.
[12] Ga. L. 1983, p. 4309, § 5.
[13] Ga. L. 1983, p. 4314, § 17.
[14] Pawnmart, Inc. v. Gwinnett County, 279 Ga. 19, 20(2), 608 S.E.2d 639 (2005).
[15] Ga. L. 1983, p. 4315, § 22.
[16] Metzger v. Americredit Financial Svcs., 273 Ga.App. 453, 459, 615 S.E.2d 120 (2005).
[17] Alexander v. Macon-Bibb County Urban Dev., etc., 257 Ga. 181, 183(2), 357 S.E.2d 62 (1987).
[18] As the Intervenors' failure to timely file a transcript was not addressed by the trial court or raised on appeal, we do not address that issue here.
[19] Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga.App. 674, 676(2), 530 S.E.2d 800 (2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338938/ | 510 S.E.2d 350 (1998)
235 Ga. App. 671
GARMON
v.
The STATE.
No. A98A1649.
Court of Appeals of Georgia.
December 4, 1998.
Mark J. Kadish, Atlanta, Rhonda L. Byers, Athens, for appellant.
David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.
POPE, Presiding Judge.
Following a bench trial, the trial court convicted Sammy Garmon of trafficking in methamphetamine. Garmon appeals, challenging the denial of his motion to suppress evidence of the methamphetamine and the sufficiency of the evidence supporting his conviction. We conclude that the court properly denied Garmon's motion to suppress, that the evidence was sufficient to convict, and we affirm.
*351 1. As grounds for his motion to suppress, Garmon asserted that police obtained evidence of the methamphetamine following an arrest not supported by probable cause. In addressing this assertion, we construe the evidence in the light most favorable to the trial court's decision. Sawyer v. State, 227 Ga.App. 493, 494(2), 489 S.E.2d 518 (1997).
Viewed in this light, the evidence reveals that in July 1995, a Douglas County Jail inmate informed Investigator Mike Howell of the Douglas County Sheriff's Department that a man called "Speed" had sold methamphetamine to another individual. The informant told Howell he believed "Speed's" real name was Sammy Garmon and that he drove a black Chevrolet truck. Howell testified that after investigating the information, he also learned that Garmon "may be an acquaintance" of another individual who purportedly was a methamphetamine dealer.
Howell investigated the information and, in August 1995, obtained a photograph of Garmon from police files relating to a prior driving under the influence arrest. In mid-August, Howell and another investigator saw the black Chevrolet truck registered to Garmon outside a pool hall. The investigators entered the pool hall where they observed Garmon conduct what appeared to be a hand-to-hand drug transaction. The investigators did not further explore the apparent transaction, however, and according to Howell his investigation of Garmon ceased a short time later.
In an unrelated investigation into an illegal sports betting operation, Howell obtained a wiretap warrant to monitor phone calls made to the residence of an individual named Michael Wilson. During the wiretap investigation, which began on December 20, 1995, the officers overheard conversations which indicated a person named "Sammy" was participating in illegal gambling and narcotics activity. Howell testified regarding the specifics of several conversations which involved "Sammy's" drug and gambling activities. Specifically, on one occasion an individual called the house asking if Wilson had any "white stuff," and Wilson responded that "he would have to wait until Sammy called him back." During approximately three other phone calls, the speakers stated that Sammy had won or lost a certain amount of money.
On December 29, Howell obtained a search warrant for Wilson's house to obtain evidence of crimes involving gambling and controlled substances, specifically documents, records, notes, recordings, controlled substances, U.S. currency, and telephone billing records. In the six-page affidavit attached to the warrant, Howell detailed the mechanics of the gambling operation, the details of which he had learned through monitoring phone calls to Wilson's residence. The affidavit listed several individuals who were involved in the sports betting operation and detailed the volume of activity9,000 calls in a two-month periodas well as other signs of gambling activity which Howell had observed. Howell's affidavit also stated that he believed "controlled substances may be found as well because during monitored conversations Wilson has stated that he enjoys consuming marijuana." Howell stated that he believed "that such information will be presently located at the above residence because this weekend there are going to be several professional and college football games to be played between now and 1/2/96." Howell's affidavit set forth the need for a "no-knock" warrant; he explained that "[i]n a case such as this, documents and records are easily and quickly destroyed by means of fire. Sometimes gambling records are kept on special paper that burns easily, based on what Affiant has been told by other officers experienced in such investigations. Items can be flushed down the toilet."
On December 30, a couple of days before Garmon's arrest, the Douglas County Sheriff's Department set up a surveillance on Michael Wilson's residence and observed a truck parked in Wilson's driveway. When officers ran the tag on the truck, they learned it was registered to a man who sold methamphetamine.
The officers' plan was to execute the search warrant on the evening of January 2, 1996. The raid was planned to coincide with the National Championship Football Game, one of the largest betting games of the year, which was also scheduled for that night. At about 8:15 p.m. on January 2, before the *352 search warrant was executed, the officers were monitoring the wiretap on Wilson's phone and overheard a conversation between "Sammy" and "Dan" in which the men were talking about gambling and drugs. The officers had previously received information from the IRS that "Sammy" was Sammy Joe Garmon and "Dan" was Dan Boone. According to Howell, in the January 2 phone conversation "Sammy" and "Dan" made a side bet. About ten minutes after hearing that conversation, Howell arrived at Wilson's residence and set up surveillance on Wilson's home. Three to five minutes after Howell got to Wilson's residence, he saw an unidentified man (later identified as Garmon) and woman leave the house and get into a pickup truck.
Howell testified that "[d]ue to the fact that they were in the process of getting everybody together to do the search warrant execution, we were stopping the vehicles that were leaving the house." Accordingly, Howell instructed another investigator, Deputy Bearden, to follow the man and woman, perform a "traffic stop" on the vehicle, and detain its occupants. Bearden began following the car, but because Bearden was in an undercover car, it was necessary for him to call for a patrol car to actually stop the truck. The truck was stopped approximately two miles from Wilson's home, and Bearden approached the vehicle. Upon approaching the pickup truck, Bearden noticed that the driver's "eyes were very glassy, and his speech was slurred." Bearden did not smell any alcohol and suspected that the driver was under the influence of drugs. Bearden testified, however, that the driver was not speeding or weaving and that he was not investigating the driver for driving under the influence. Bearden asked the driver for a license and insurance card, both of which identified the driver as Sammy Garmon. When Bearden notified Howell that Garmon was the driver, Howell responded that he "had information on [Garmon] that [Garmon] was a meth dealer, and [Bearden] needed to check him pretty close."
Following Bearden's conversation with Howell, Bearden asked Garmon if he would give consent to a search of the vehicle. Although Garmon initially said "yes," he immediately changed his answer to "no." Bearden then called a canine unit to perform a "free air search around the vehicle." While they were waiting for the canine unit, Bearden patted down Garmon down for safety reasons. During his pat-down, Bearden discovered what appeared to be two gambling sheets in Garmon's left back pocket, $8,417 in his right front pocket, along with a knife or some knives.
Approximately five minutes later the canine unit arrived, and after walking around the pickup truck, the dog signaled the possible presence of drugs near the driver's side door. The dog's handler then opened the passenger side door, and the dog alerted on a tissue box located on the passenger side floorboard. The officers looked in the box and found a rocky, powdery substance that they suspected was a narcotic. Bearden asked Garmon if the substance was methamphetamine, and Garmon responded affirmatively.
Following the discovery of the methamphetamine, the officers placed Garmon and his female passenger, Patricia Garrett, in the back of a patrol car. Upon searching Garrett's pocketbook, Bearden found a sock containing some loose methamphetamine and syringes.
After being charged with trafficking in methamphetamine, Garmon moved to suppress the evidence obtained following the stop. Here he argues that the court improperly denied the motion to suppress in that: the initial stop by Deputy Bearden was improper and that the officers' subsequent actions in detaining Garmon and having him exit his vehicle were improper. We find that the initial stop by Deputy Bearden was justified; that the officers' subsequent actions were also justified; and that the trial court's denial of the motion to suppress was proper.
"On reviewing a trial court's ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court's findings on disputed facts and credibility must be accepted unless clearly erroneous." (Citations and punctuation omitted.) Fritzius v. State, 225 Ga.App. 642, 644, 484 S.E.2d 743 (1997).
*353 Although we were unable to locate Georgia cases which involved identical facts, several cases guide our inquiry into the validity of the warrantless search here. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), arose after police officers, who were about to execute a search warrant on a house, saw the resident of the house, Summers, leaving the premises. The officers detained Summers during the search and, after finding contraband in the house, arrested him. During a search of Summers' person, the officers found additional contraband. Summers moved to suppress evidence of the contraband found on his person, arguing that the detention and search violated his Fourth Amendment rights. Although the trial court agreed and suppressed the evidence, the United States Supreme Court reversed, concluding that the officers were permitted to detain Summers while they searched his home.
In concluding that the detention was justified, the Supreme Court stated that their assessment focused on both the law enforcement interest and the nature of the articulable facts supporting the detention. The court stated that the legitimate law enforcement interest in preventing flight, the interest in minimizing the risk of harm to officers, and the interest in preventing destruction of evidence were among the law enforcement interests at issue. Michigan v. Summers, 452 U.S. at 702-703, 101 S.Ct. 2587. The Supreme Court then discussed the nature of the articulable and individualized suspicion on which the police base the detention of the occupant of a home subject to a search warrant, stating: "[t]he existence of a search warrant, however, also provides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime.... The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant." (Emphasis supplied.) Id. at 703-704, 101 S.Ct. 2587.
In Fritzius v. State, 225 Ga.App. 642, 484 S.E.2d 743, the validity of a warrantless search in light of a warrant which had been issued for a home was also at issue. In Fritzius, a police narcotics unit was preparing to execute a search warrant for drug violations on a mobile home occupied by a man named Henry Fallaw. As the warrant was about to be executed, an officer observed two men leave the home, enter a vehicle and drive away. An officer was instructed to stop the vehicle and "find out if Fallaw, who was named in the warrant, was in the car." Id. at 644, 484 S.E.2d 743. Accordingly, the officer stopped the vehicle approximately two miles away from the home and subsequently discovered contraband in the car. Fallaw was the driver of the car. Fritzius, the passenger and the vehicle owner, moved to suppress evidence of the contraband on the ground that it was the fruit of an unlawful stop. The trial court denied Fritzius' motion to suppress the evidence, and this Court affirmed.
Citing Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340, the Fritzius court stated: "[w]hen a person is leaving a premises which is about to be searched pursuant to a warrant, a brief, momentary detention by law enforcement personnel is permitted when supported by articulable suspicion or probable cause." Fritzius v. State, 225 Ga.App. at 644, 484 S.E.2d 743. The court analyzed Summers, applied it to the facts of the case, and stated: "[i]n determining whether a search or seizure is constitutionally prohibited, the ultimate test for the validity of the police's conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment. It would appear reasonable within the meaning of the Fourth and Fourteenth Amendments for a police officer, knowing that certain persons and premises were the subject of the immediate execution of a search warrant, to detain temporarily a vehicle containing occupants who had just departed the premises to be searched in order to identify the occupants and to see if one of them was a person named in the warrant. Under such circumstances, the detention would be minimally intrusive and neither an arbitrary nor capricious exercise of police power." (Citations, *354 punctuation and emphasis omitted.) Id. at 646, 484 S.E.2d 743.
Also relevant to our inquiry is Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which focuses on the "articulable suspicion" element of the inquiry which was discussed in Michigan v. Summers. In Terry, the court stated: "[m]omentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such actiona founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing." (Citations and punctuation omitted.) Fritzius v. State, 225 Ga.App. at 643, 484 S.E.2d 743.
In the instant case, it was reasonable within the meaning of the Fourth and Fourteenth Amendments for the officers, knowing that Wilson's premises were to be the subject of the immediate execution of a search warrant, to detain temporarily the vehicle containing Garmon in order to identify the occupants and see if one of them was the person they had just overheard discussing gambling and drugs on the phone. In light of the fact that the warrant was issued for January 2specifically because of the volume of gambling that would occur on that day, it was reasonable to follow the car from the house. Under such circumstances, the detention was minimally intrusive and was neither an arbitrary nor capricious exercise of police power. See Bales v. State, 216 Ga.App. 856, 456 S.E.2d 112 (1995); Setser v. State, 209 Ga.App. 57, 58(1), 432 S.E.2d 652 (1993); compare State v. Crank, 212 Ga.App. 246, 249, 441 S.E.2d 531 (1994). Both the law enforcement interest in preventing the destruction of evidence and the nature of the articulable facts supporting the detention establish that the stop was proper.
The officers' actions subsequent to the stop were also justified. Officer Bearden's pat-down of Garmon was reasonable and justified under the circumstances. See generally Davis v. State, 232 Ga.App. 450, 451, 501 S.E.2d 241 (1998). Additionally, the "free air search" was supported by articulable suspicion: Garmon had just left Wilson's residence, and once Bearden ascertained Garmon's identity, the earlier investigation of Garmon's involvement in methamphetamine gave the officer additional reasonable articulable suspicion. See Pitts v. State, 221 Ga. App. 309, 311(2), 471 S.E.2d 270 (1996) Fritzius v. State, 225 Ga.App. at 646, 484 S.E.2d 743 ("the existence of an articulable suspicion can be based on the collective knowledge of law enforcement officials" and "the detaining officer was entitled to rely on the information given him by a fellow officer in the formation of an articulable suspicion").
2. Garmon also asserts that notwithstanding any error in the trial court's denial of his motion to suppress, there was insufficient evidence to establish that he possessed the methamphetamine found in his truck. Garmon contends that the evidence showed that his passenger, Patricia Garrett, had equal access to the contraband and that the trial court therefore erred in denying his motion for directed verdict. Again, we disagree.
"`The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant's ownership or possession of the vehicle.'" (Emphasis in original.) Pittman v. State, 208 Ga.App. 211, 214(2), 430 S.E.2d 141 (1993).
In the instant case, Garmon's possession of the truck was not the sole evidence that he possessed the methamphetamine found in the vehicle. Rather, evidence showed that Garmon possessed over $8,000 in cash when he was stopped and that he identified the substance as methamphetamine when asked by Deputy Bearden. Under these circumstances, it was for the factfinder to determine whether Garmon possessed the contraband.
Judgment affirmed.
*355 ANDREWS, C.J., and ELDRIDGE, J., concur.
BEASLEY, J., concurs specially.
McMURRAY, P.J., and RUFFIN, J., dissent.
BLACKBURN, J., not participating.
BEASLEY, Judge, concurring specially.
1. Appellant Garmon is barking up the wrong tree and thereby leading off the track for a proper resolution of his constitutional challenge to the car stop. He would find the prey of success if Fritzius-Summers[1] were the proper tree.
I agree with Garmon and the dissenting opinion that the boundaries of reasonableness for police seizures set in Michigan v. Summers were exceeded by the police when they stopped Garmon several miles from the residence for which a warrant authorized a search. I did not join in the majority in Fritzius v. State, and in this case the facts express no more of a justifiable governmental interest indicating a need for the seizure than they did in Fritzius.
In fact, when the stop was made, the police did not know who the two people were or what connection they had with the residence they had just left. The no-knock warrant was for the "residence of Michael Joel Wilson" and "the motor vehicles on said premises... being in the possession and control of Michael Joel Wilson," and if any named articles were found, they and "Michael Joel Wilson" were to be brought before a judicial officer. Thus, in the first place, the warrant itself did not encompass the seizure distanced from the residence and did not contemplate that the person was Wilson.
Secondly, none of the government interests identified in Summers was articulated by the police in this case, none of them appeared from the circumstances, and no others were offered other than that the decision had been made to stop any vehicles which left the house. But why? The question was not answered. The Fourth Amendment was compromised under a Michigan v. Summers analysis.
But that is not the end of the hunt for the proper constitutional quarry. Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the detention was a permissible vehicle stop.
"Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct[.] [See Terry v. Ohio.] ... Investigative stops of vehicles are analogous to Terry-stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination."[2] The objective facts must indicate "a founded suspicion..., some basis from which the court can determine that the detention was not arbitrary or harassing."[3] Under Terry, "a police officer who lacks probable cause may momentarily detain a suspicious individual in order to determine his identity or to maintain the status quo while obtaining more information."[4]
In Whren v. United States,[5] the Supreme Court rejected a subjective test to determine reasonableness of a motor vehicle stop under the Fourth Amendment. What is stated by the officers as the reason for the stop is not determinative of its constitutionality.[6] It depends *356 on an evaluation of the objective facts surrounding the stop. Do they give rise to "at least articulable and reasonable suspicion" of criminal conduct so as to justify an investigative stop? If there are "specific, articulable facts sufficient to give rise to" such a suspicion, the stop is valid.[7]
Facts which gave rise to an articulable suspicion of criminal conduct occurring or having just occurred and involving at least the male occupant of the vehicle, who was seen driving, were at least these. The truck was stopped not more than 20 minutes after the police monitored a telephone conversation in which a Sammy and a Dan talked about their gambling and made a side bet. Based on information the police had from the IRS, they believed that Sammy was Sammy Joe Garmon, whom they had seen on a previous occasion at a pool hall conduct what appeared to be a drug sale. The name "Sammy" had come up in several of the telephone conversations monitored earlier in December. On one occasion, the resident of the house about to be searched told a requester of drugs that "he would have to wait until Sammy called him back."
So, when a male person left the house where the gambling transaction had occurred moments earlier, in a truck belonging to a known drug dealer (Billy Joe Kilgore, who sold methamphetamine), the police could have a reasonable belief that he was either Sammy Garmon or Dan, the males who had engaged in the bet. If it was Sammy Garmon, there was a reasonable possibility that he would be in possession of drugs.
It would also be reasonable to believe, alternatively, that it was the owner of the truck, Kilgore, and because of his livelihood and their knowledge that Wilson, the resident of the house, liked drugs, that he possessed drugs in the vehicle or had just completed a drug delivery to Wilson.
Thirdly, considering the ongoing gambling operation that was known via the telephone monitoring, it was reasonable to believe that the persons leaving had information about it or were actually involved in it.
Stopping the vehicle two or three miles from the house rather than at the house was justifiable also. It was not, in this sense, a stale stop. Had the driver seen police closing in on him, he could have alerted the occupants of the house by horn blow or possibly by car phone that the police were on the premises. Much of the evidence of criminal activity which the police were authorized by the search warrant to seize could be quickly and easily destroyed. In addition, if police approached the truck while it was still visible from the house, this activity would have informed the occupant to police presence and allowed frustration of the search warrant's execution. Even signaling the car to stop somewhere close to the house would not have allowed enough time for the other officers to announce their presence at the door with the warrant and secure the house for the search. A premature police car presence and activated blue light in the truck occupants' view would have allowed the truck occupants to make a car phone call to the house before the police were ready to announce their presence. It would be reasonable to suspect that persons engaged in gambling or drug transactions might have a car phone.
Based on these objective facts, there was at least an articulable suspicion which warranted the stop and investigatory detention. The trial court is properly affirmed in this regard.
2. As to Division 2 of the majority opinion, I fully concur.
RUFFIN, Judge, dissenting.
Because I believe that the stop of Garmon's vehicle was improper, I respectfully dissent.
*357 Neither Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), nor Fritzius v. State, 225 Ga.App. 642, 484 S.E.2d 743 (1997), cited by the majority, supports the stop in this case. In Summers, police officers were about to execute a search warrant on a house when they encountered and detained its resident, Summers, leaving the premises. The officers detained Summers during the search, and after finding contraband in the house, arrested him. During a search of Summers' person, the officers found additional contraband. Summers moved to suppress evidence of the contraband found on his person because it resulted from a detention which violated his Fourth Amendment rights. Although the trial court agreed and suppressed the evidence, the United States Supreme Court reversed, concluding that the officers were permitted to detain Summers while they searched his home.
In addressing the propriety of the detention, the Supreme Court found that the resulting intrusion on Summers' privacy and restraint on his liberty were less severe than that caused by the search of his home. Summers, supra at 701, 101 S.Ct. 2587. In this regard, the Court reasoned that the premises search was a "substantial invasion of the privacy of the persons who resided there ... [and that most citizens] would elect to remain in order to observe the search of their possessions." (Emphasis supplied.) Id. at 701, 101 S.Ct. 2587. In addition, the Court found the detention justified because law enforcement officials have a legitimate interest in preventing flight if contraband is found during the search. Id. at 702, 101 S.Ct. 2587. The Court further justified the detention on the ground that "the orderly completion of the search may be facilitated if the occupants of the premises are present. Their self-interest may induce them to open locked doors or locked containers to avoid the use of force that is not only damaging to property but may also delay the completion of the task at hand." (Emphasis supplied.) Id. at 703, 101 S.Ct. 2587.
It is clear from Summers that, in approving the detention of Summers, the Court relied exclusively on reasons dependent upon his residence in the home. Because Summers lived in the home that was being searched, the intrusions on his privacy and liberty interests were less objectionable, the officers could prevent his flight if contraband was found and he could facilitate the officers' search and minimize any unnecessary intrusion.
We recently applied these same factors in approving a vehicle stop in Fritzius, supra. In Fritzius, police were about to execute a search warrant on a mobile home occupied by a man named Henry Fallaw when an officer observed two men leave the home, enter a vehicle and drive away. An officer was instructed to stop the vehicle and "find out if Fallaw, who was named in the warrant, was in the car." Id. at 644, 484 S.E.2d 743. In accordance with these instructions, an officer stopped the vehicle approximately two miles away from the home and subsequently discovered contraband in the car. Fritzius, the vehicle owner, moved to suppress evidence of the contraband on the ground that it was the fruit of an unlawful stop. The trial court denied Fritzius' motion to suppress the evidence, and on appeal, this Court affirmed.
The Fritzius majority reasoned that if the Court in Summers allowed police to detain the resident at the premises, then police could similarly stop a car two miles away from the premises and determine if the owner was present in the vehicle. The Fritzius majority reasoned that: "It would appear reasonable within the meaning of the Fourth and Fourteenth Amendments for a police officer, knowing that certain persons and premises were the subject of the immediate execution of a search warrant, to detain temporarily a vehicle containing occupants who had just departed the premises to be searched in order to identify the occupants and to see if one of them was a person named in the warrant. Under such circumstances, the detention would be minimally intrusive and neither an arbitrary nor capricious exercise of police power." (Emphasis supplied.) Id. at 646, 484 S.E.2d 743.
Neither Summers nor Fritzius authorized the stop of Garmon's vehicle in the present case. The evidence is clear that Garmon neither resided in the premises being searched nor was he stopped immediately outside the premises as was the defendant in Summers. And, unlike Fritzius, where the officer stopped the car for the sole and specific *358 purpose of identifying the occupants to see if one of them was named in the warrant, the evidence in this case clearly established that Deputy Bearden was instructed to stop the vehicle and detain its occupants, without regard to whether one of the occupants was the homeowner, Wilson.
Because Garmon did not reside in the premises being searched, his detention resulted in a substantial intrusion into his privacy and liberty interests. Indeed, Garmon was not named in the warrant, there is no evidence he had any interest in the contents of the home being searched and there appears no reason why he would elect to be present during the search of the home. See Summers, supra at 701, 101 S.Ct. 2587. Furthermore, assuming contraband was found in the home, Garmon's previous mere presence in the residence would have been insufficient to attribute possession of the contraband to him and the risk of his flight would thus not have been a factor. See Williams v. State, 207 Ga.App. 782, 784(4), 429 S.E.2d 153 (1993); Summers, supra at 702, 101 S.Ct. 2587. Finally, because Garmon did not reside there, he could not facilitate the officers' search, and accordingly had no interest in assisting the officers in this regard. See id. at 703, 101 S.Ct. 2587. Because there existed no valid justification for stopping Garmon's automobile, I would find the stop unreasonable and reverse his conviction.
I am authorized to state that Presiding Judge McMURRAY joins in this dissent.
NOTES
[1] Fritzius v. State, 225 Ga.App. 642, 484 S.E.2d 743 (1997); Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981).
[2] (Citations and punctuation omitted.) Jorgensen v. State, 207 Ga.App. 545, 546, 428 S.E.2d 440 (1993).
[3] (Citations and punctuation omitted.) State v. McFarland, 201 Ga.App. 495, 496, 411 S.E.2d 314 (1991).
[4] State v. Corbett, 205 Ga.App. 554, 556, 423 S.E.2d 38 (1992).
[5] 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
[6] United States v. McKie, 951 F.2d 399, 402(II) (D.C.Cir.1991): "Terry requires only that the facts establishing reasonable suspicion be `articulable'as opposed to `inchoate'not that the officer making the stop precisely and individually articulate the facts that added up to suspicion in his mind. The Terry standard being one of objective reasonableness, we are not limited to what the stopping officer says or to evidence of his subjective rationale; rather, we look to the record as a whole to determine what facts were known to the officer and then consider whether a reasonable officer in those circumstances would have been suspicious. [Cit.]"
[7] Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Johnson v. State, 230 Ga.App. 535, 537(1), 496 S.E.2d 785 (1998); United States v. McKie, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338939/ | 333 S.C. 351 (1998)
510 S.E.2d 220
The STATE, Respondent,
v.
Willie James ERVIN, Appellant.
No. 2902.
Court of Appeals of South Carolina.
Heard November 4, 1998.
Decided November 16, 1998.
*352 Deputy Chief Attorney Joseph L. Savitz, III, of South Carolina Office of Appellate Defense, of Columbia, for Appellant.
Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General Caroline Callison Tiffin, all of Columbia; and Solicitor W. Townes Jones, IV, of Greenwood, for Respondent.
*353 ANDERSON, Judge:
Willie James Ervin was convicted of kidnapping and assault with intent to commit first degree criminal sexual conduct. He was sentenced to life imprisonment without the possibility of parole for both convictions, to be served concurrently. Ervin appeals only his conviction for assault with intent to commit first degree criminal sexual conduct. We reverse.
FACTS/PROCEDURAL BACKGROUND
Ervin's indictment provided:
That Willie James Ervin did in Greenwood County on or about the 10th day of July 1996, wilfully and unlawfully assault with intent to commit criminal sexual conduct in attempting to accomplish sexual battery upon the person of Donna Babb.
The only applicable code section appearing on the indictment was S.C.Code Ann. § 16-3-656 (1985). At Ervin's trial, the judge amended the indictment to charge attempted criminal sexual conduct in the first degree; however, he charged the jury on the offense of "assault with the intent to commit criminal sexual conduct in the first degree." Ervin did not object at trial to the amendment of the indictment.
ISSUE
Did the Circuit Court lack subject matter jurisdiction due to a defective indictment?
LAW/ANALYSIS
Ervin argues the amendment of his indictment and the submission to the jury of "assault with the intent to commit criminal sexual conduct in the first degree" deprived the trial court of subject matter jurisdiction. We agree.
Pursuant to S.C.Code Ann. § 17-19-100 (1985),
[i]f (a) there be any defect in form in any indictments or (b) on the trial of any case there shall appear to be any variance between the allegations of the indictment and the evidence offered in proof thereof, the court before which the trial shall be had may amend the indictment (according to the proof, if the amendment be because of a variance) if *354 such amendment does not change the nature of the offense charged.
To ascertain whether the amendment changed the nature of the offense with which Ervin was charged, we must first look to determine what, if any, offense was charged in the original indictment.
South Carolina Code Ann. § 16-3-656 (1985) was typed on the indictment. Section 16-3-656 provides: "Assault with intent to commit criminal sexual conduct described in the above sections shall be punishable as if the criminal sexual conduct was committed." (emphasis added). The phrase "above sections" refers to § 16-3-652, Criminal sexual conduct in the first degree; § 16-3-653, Criminal sexual conduct in the second degree; § 16-3-654, Criminal sexual conduct in the third degree; and § 16-3-655, Criminal sexual conduct with minors. These offenses contain different elements and specify different punishments.
Criminal sexual conduct in the first degree requires a sexual battery accomplished with aggravated force or under circumstances where the victim of the sexual battery is also the victim of forcible confinement, kidnapping, robbery, extortion, burglary, housebreaking, or any other similar offense or act. See § 16-3-652(1)(a)(b). A violation of § 16-3-652 is punishable by imprisonment for up to thirty years. See § 16-3-652(2).
Criminal sexual conduct in the second degree is properly charged when aggravated coercion is used to accomplish the sexual battery. See § 16-3-653(1). It is punishable by imprisonment for up to twenty years. See § 16-3-653(2).
Criminal sexual conduct in the third degree specifies the actor must use force or coercion without aggravating circumstances to accomplish the sexual battery. See § 16-3-654(1)(a). Third degree criminal sexual conduct also occurs if the actor engages in sexual battery with the victim and the actor knows or has reason to know the victim is "mentally defective, mentally incapacitated, or physically helpless and aggravated force or aggravated coercion was not used to accomplish sexual battery." S.C.Code Ann. § 16-3-654(1)(b). Violations of this section are punishable by up to ten years imprisonment. See S.C.Code Ann. § 16-3-654(2).
*355 Criminal sexual conduct with minors is divided into two degrees. See § 16-3-655(1)-(3). First degree criminal sexual conduct with a minor occurs if the actor engages in sexual battery with a victim less than eleven years of age. See § 16-3-655(1). Second degree criminal sexual conduct with a minor occurs if the actor engages in sexual battery with (a) a victim who is fourteen years of age or less but who is at least eleven years of age or (b) a victim who is at least fourteen years of age but who is less than sixteen years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim. See § 16-3-655(2)-(3).
An indictment survives legal scrutiny if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer and whether he may plead an acquittal or conviction thereon. Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998). Under South Carolina Code Ann. § 17-19-20 (1985), an indictment passes legal muster if it "charges the crime substantially in the language of the common law or of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood and, if the offense be a statutory offense, that the offense be alleged to be contrary to the statute in such case made and provided." Accord State v. Tabory, 262 S.C. 136, 202 S.E.2d 852 (1974) (offense intended to be charged must be described with sufficient particularity that conviction or acquittal thereupon may be pleaded in bar to any subsequent prosecution; indictment phrased substantially in language of statute which creates and defines offense is ordinarily sufficient); State v. Jacobs, 238 S.C. 234, 119 S.E.2d 735 (1961) (indictment is ordinarily sufficient if it is in language of statute); State v. McIntire, 221 S.C. 504, 71 S.E.2d 410 (1952) (true test of sufficiency of indictment is whether it contains necessary elements of offense intended to be charged and sufficiently apprises defendant of what he must be prepared to meet); State v. Perry, 87 S.C. 535, 70 S.E. 304 (1911) (An "offense should be so plainly stated in the indictment as to enable the court looking alone to the indictment and the verdict to impose the sentence prescribed by law.").
*356 Ervin's original indictment did not properly allege the elements of assault with intent to commit first degree criminal sexual conduct. Elementally, the offense of assault with intent to commit first degree criminal sexual conduct is analyzed:
(1) An assault;
(2) Criminal intent to commit criminal sexual conduct in the first degree;
(3) The State is not required to prove conduct showing criminal sexual conduct in the first degree;
however, the State must prove the intent to commit criminal sexual conduct in the first degree.[1]
Reviewing the language of the original indictment, we come to the ineluctable conclusion it does not aver all elements of assault with intent to commit first degree criminal sexual conduct. The fatal flaw in the original indictment as to the offense of assault with intent to commit first degree criminal sexual conduct is the absolute omission of any allegation relating to the commission of sexual battery with aggravated force or under circumstances where the victim of the sexual battery is also the victim of forcible confinement, kidnapping, robbery, extortion, burglary, housebreaking, or any other similar offense or act. Having reached the conclusion Ervin's original indictment only charged him with a lesser offense, assault with intent to commit criminal sexual conduct in the third degree, it is clear the trial court's amendment of the indictment to assault with intent to commit first degree criminal sexual conduct changed the nature of the offense with which Ervin was charged.
The South Carolina Supreme Court reversed a conviction based on facts similar to the case sub judice in State v. Riddle, 301 S.C. 211, 391 S.E.2d 253 (1990). The trial court permitted *357 an amendment to Riddle's indictment during the course of his trial. Initially, Riddle was indicted for assault with intent to commit third degree criminal sexual conduct. At the close of evidence, the indictment was amended to charge assault with intent to commit first degree criminal sexual conduct. On appeal, the Supreme Court explained:
S.C.Code Ann. § 17-19-100 (1976) permits amendment of an indictment provided the nature of the offense charged is not changed. Here, the amendment increases the lesser charge of assault with intent to commit third degree criminal sexual conduct to the greater charge of assault with intent to commit first degree criminal sexual conduct. Punishment for third degree may not exceed ten years, while first degree is punishable by up to thirty years.
The amendment clearly exceeded the terms of the statute.
Riddle, 301 S.C. at 212, 391 S.E.2d at 253 (emphasis in original).
Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997), is a revisit to the amendment issue. At Hope's trial, the judge allowed the State to amend Hope's indictment from assault with intent to commit third degree criminal sexual conduct to assault with intent to commit first degree criminal sexual conduct. The Hope Court found the amendment clearly changed the nature of the offense.
In State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987), the Court readdressed the amendment of an original indictment true billed by the Grand Jury. Munn appealed from his conviction for criminal sexual conduct in the second degree. He was indicted for criminal sexual conduct in the second degree pursuant to S.C.Code Ann. § 16-3-653 (1976). The trial judge charged the jury, however, only on criminal sexual conduct with a minor in the second degree pursuant to S.C.Code Ann. § 16-3-655(3) (1976). The Court ruled:
A defendant in a criminal case is entitled to be tried only on the charges set forth in the indictment. S.C.Code Ann. § 17-19-10 (1976). The test of sufficiency of an indictment is whether or not it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to defend. S.C.Code Ann. § 17-19-20 (1976); State v. Tabory, 262 S.C. 136, 202 S.E.2d 852 (1974). *358 Munn, 292 S.C. at 499, 357 S.E.2d at 462. The Supreme Court held the amendment deprived the trial court of subject matter jurisdiction. Second degree criminal sexual conduct with a minor is not a lesser-included offense of second degree criminal sexual conduct because it contains the additional requirement the victim be a minor.
Similarly, assault with intent to commit first degree criminal sexual conduct is not a lesser-included offense of assault with intent to commit third degree criminal sexual conduct because it requires the additional element of an aggravating circumstance. Munn edifies the bench and bar as to the lack of subject matter jurisdiction when an original indictment is fatally defective.
The latest pronouncement by our Supreme Court in regard to the sufficiency of an indictment when reviewed under a subject matter jurisdiction analysis is Granger v. State, 333 S.C. 2, 507 S.E.2d 322 (1998). Granger was indicted for trafficking in cocaine under an indictment reading Granger "was knowingly in actual or constructive possession of more than ten (10) grams of Crack Cocaine." Id. at 3, 507 S.E.2d at 323 (emphasis in original). During his plea, the quantity of crack cocaine was identified as 58.44 grams. Concomitantly, the Circuit Judge sentenced Granger under the provision dealing with this mathematical quantity. On appeal, Granger claimed the indictment only put him on notice he could be sentenced for trafficking between 10 and 28 grams of cocaine. The Court disagreed with this argument and distinguished Granger's case from other cases dealing with amendments to an indictment:
Moreover, this case is distinguishable from other cases of this Court dealing with amendments to an indictment. Under S.C.Code Ann. § 17-19-100 (1976), an indictment may be amended at trial only if the amendment does not change the nature of the offense charged. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997). In Hopkins v. State, 317 S.C. 7, 451 S.E.2d 389 (1994), this Court held the amendment to an indictment changing the offense from felony driving under influence (DUI) causing great bodily injury to felony DUI causing death, changed the nature of offense, as punishment was increased from 10 to 25 years. Accord State v. Riddle, 301 S.C. 211, 391 S.E.2d 253 (1990) (amendment to indictment to increase offense from 3rd degree CSC *359 to 1st Degree CSC, and increase potential punishment from 10 to 30 years).
Id. at 5, 507 S.E.2d at 324 (emphasis in original).
Here, the trial court lacked subject matter jurisdiction to try Ervin for assault with intent to commit first degree criminal sexual conduct. "A defendant in a criminal case is entitled to be tried only on the charges set forth in the indictment." Munn, 292 S.C. at 499, 357 S.E.2d at 462. See also State v. Beachum, 288 S.C. 325, 342 S.E.2d 597 (1986) (subject to certain minor exceptions, trial court lacks subject matter jurisdiction to convict defendant for offense when there is no indictment charging him with that offense when jury is sworn). Although Ervin did not object at trial, issues related to subject matter jurisdiction may be raised at any time. See Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998).
The State claims this Court need not review Ervin's conviction because of the "concurrent sentence doctrine." This doctrine is discretionary. See Mariscal v. United States, 449 U.S. 405, 101 S.Ct. 909, 66 L.Ed.2d 616 (1981). In view of the lack of subject matter jurisdiction, we decline to invoke the "concurrent sentence doctrine" in this case.
CONCLUSION
Accordingly, Ervin's conviction for assault with intent to commit first degree criminal sexual conduct is hereby
REVERSED AND REMANDED.
HOWELL, C.J., and STILWELL, J., concur.
NOTES
[1] South Carolina Code Ann. § 16-3-652 (1985) provides:
(1) A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:
(a) The actor uses aggravated force to accomplish sexual battery.
(b) The victim submits to sexual battery by the actor under circumstances where the victim is also the victim of forcible confinement, kidnapping, robbery, extortion, burglary, housebreaking, or any other similar offense or act. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337743/ | 124 Ga. App. 334 (1971)
183 S.E.2d 622
BAIER
v.
THE STATE.
46175.
Court of Appeals of Georgia.
Argued June 2, 1971.
Decided July 9, 1971.
Rehearing Denied July 26, 1971.
Garland & Garland, Edward T. M. Garland, Robert G. Fierer, for appellant.
Lewis R. Slaton, District Attorney, Joel M. Feldman, Tony H. Hight, for appellee.
JORDAN, Presiding judge.
This is an appeal from a conviction and sentence for burglary.
The accused was apprehended at approximately 3:11 a. m. on March 26, 1970, in an apartment complex where an alleged rape occurred, and while being held as a suspect for this offense, for which he now stands acquitted, he became a suspect for the burglary incident. About 11 or 11:30 a. m. a young woman in a nearby complex reported the discovery of an intruder in her apartment during the early morning hours, describing a person having physical characteristics similar to the accused. Using 2:35 a. m. as the known time when she and her great-aunt completed an inspection of the apartment and determined that apparently nothing had been disturbed, she fixed the time of discovery as about 15 minutes earlier. She had been in the bathroom and upon opening the door confronted the intruder face to face, stared at him for about 15 seconds, screamed at him to "get out of the house," and chased him as he ran from the apartment, disappearing into the night. Pursuant to her report of the incident an investigator brought three black and white photographs to her for identification, two of which depicted the accused, including one with a mustache added. The young woman tentatively identified the pictures of the accused as depicting the intruder, pointing out that the mustache was incorrectly drawn. The investigator testified that *335 she withheld positive identification until she could see the suspect in person.
Following this photographic identification the investigator asked the young woman to go to the county jail to identify the suspect. According to the investigator she was seated in the waiting room of the county jail, where there were a number of other persons, when a deputy sheriff brought the accused to the door and stopped, and the accused continued towards the investigator and sat down. The young woman then left the room. She made a positive courtroom identification, and also testified that while she was at the jail she would look at the door each time someone entered, and that when the accused entered she immediately recognized him as the intruder in her apartment.
The accused testified that he was told at the jail that the investigator wanted to talk to him, that the person accompanying him took him to the room and pointed to the investigator, who had talked to him twice previously, that the only other person in the room was the young woman, who sat for a few minutes and left, and that the investigator, upon being asked, told him he did not know who she was. He further testified that it was from this investigator at this time that he learned that his wife had hired a lawyer for him, that the investigator told him he had a right to have a lawyer with him before interrogation, and that he told the investigator he would not make a statement unless his lawyer was there.
The enumerations include assertions of error on the overruling of a motion to suppress the identification testimony based on Sixth and Fourteenth Amendment grounds. Held:
1. Applying the guidelines established by the Supreme Court of the United States, cited and discussed, infra, we are of the opinion that the pretrial identification procedures here used, i.e., an impermissibly suggestive photographic confrontation, followed by a suggestive in-person confrontation at a critical stage of the proceedings conducted without counsel, disclose an inextricably related identification process making it impossible to determine that the courtroom identification is untainted thereby and had an independent origin in the face-to-face confrontation by the eyewitness at the scene of the burglary. Accordingly, *336 we think the trial judge erred in overruling the motion to suppress the identification testimony.
In United States v. Wade, 388 U.S. 218 (87 SC 1926, 18 LE2d 1149), the Supreme Court ruled that the Sixth Amendment guarantee covers the right to counsel at a critical pre-trial confrontation where the results might well determine the fate of an accused and where the absence of counsel might derogate from his right to fair trial, and that courtroom identification by a witness to whom the accused was exhibited in the absence of counsel before trial must be excluded unless it can be established that the evidence had an independent origin or that the error in admitting the identification was harmless.
In Gilbert v. California, 388 U.S. 263 (87 SC 1951, 18 LE2d 1178), the Supreme Court applied the holding in the Wade case supra, and additionally stated a per se exclusionary rule to testimony which is the direct result of an exploitation of a primary illegality.
In Stovall v. Denno, 388 U.S. 293 (87 SC 1967, 18 LE2d 1199), the court had before it a case involving a confrontation of a single suspect before a seriously wounded person in a hospital room. In recognizing the confrontation there conducted as imperative, the court noted that the practice of showing suspects singly is widely condemned, and expressed the rule (p. 302) that a violation of due process of law in conducting a confrontation depends on the totality of the surrounding circumstances.
In Simmons v. United States, 390 U.S. 377 (88 SC 967, 19 LE2d 1247), the court reiterated the views expressed in the Stovall case supra, in a case involving photographic identification, stating (p. 384) that "each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." While the court determined that the procedure there used may have in some respects fallen short of the ideal, it noted that the perpetrator was still at large, and that in the circumstances there was little chance the procedures used led to misidentification *337 of Simmons. Six photographs were used, and there was no evidence to show that the witness knew of the progress of the investigation, or that the investigators in any other way suggested which persons were under suspicion. This is decidedly different from the circumstances in the present case, where the suspect was already in custody for other reasons, and only three pictures were used, two of which depicted the suspect, and one which had been altered in a manner which might suggest that it depicted the suspect.
2. In view of the foregoing the remaining enumerations require no consideration.
Judgment reversed. Quillian and Evans, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337745/ | 257 S.C. 1 (1971)
183 S.E.2d 893
B. Kenneth TOWNSEND, Jr. and John Abney Townsend, Respondents,
v.
George W. SINGLETON, Appellant.
19282
Supreme Court of South Carolina.
September 1, 1971.
*2 William Douglas Gray, of Watkins, Vandiver, Kirven, Long & Gable, Anderson, for Appellant.
*3 John A. Townsend, Esq., of Suitland, for Respondents.
*4 September 1, 1971.
MOSS, Chief Justice.
B. Kenneth Townsend, Jr., and John Abney Townsend, the respondents herein, instituted this action on November 11, 1969, against George W. Singleton, the appellant herein, for the breach of contract and lease agreement, alleging that they were entitled to recover rent in arrears and damages to leased premises.
It is alleged in the complaint that the respondents on September 27, 1963, entered into a contract and lease agreement whereby the appellant leased a parcel of land for a period of five years commencing on October 1, 1963, and terminating on October 1, 1968, at a rental of $90.00 per month. It is further alleged upon the expiration of the *5 foregoing lease, a new lease agreement was entered into by the parties, covering the same premises, for a period commencing on November 1, 1968 and expiring on February 1, 1969 at a rental of $150.00 per month. This second lease provided that the appellant would vacate the premises on February 1, 1969, and comply with the provisions contained in paragraph eight of the original lease, which was as follows:
"It is further understood and agreed that by virtue of the type and kind of manufacturing operations presently conducted by the Lessee, that there has been and probably will continue to be certain deleterious substances and rubber waste materials deposited upon a portion of the surface of the land hereby rented, and it is expressly agreed by and between the parties the George W. Singleton, the Lessee, upon the termination of the Lease for any cause, will remove or will cause to be buried at a reasonable depth below the surface all such deleterious substances, rubber waste materials or otherwise which may have been discharged upon the surface of the said land."
It is further alleged that the appellant continued to hold over and remain in possession of the leased premises. It is further alleged that due to such holding over, the appellant is due and owing the respondents the sum of $1,200 for rent in arrears. It is further alleged that the appellant failed to comply with the provisions of paragraph eight of the original lease, hereinabove quoted, and his failure in this respect caused the respondents damage in the amount of $2,000. It was further alleged that the respondents have incurred and are entitled to recover attorneys' fees in the amount of $800.00, by reason of the breach of the contract and lease agreement by the appellant.
The answer of the appellant, in so far as the issues on this appeal are concerned, was a general denial.
This case came on for trial before the Honorable Frank Eppes, Presiding Judge, without a jury. The testimony was taken and on May 25, 1970, the trial judge, based upon *6 his findings of fact and conclusions of law, granted judgment in favor of the respondents in the amount of $2,486.00 made up as follows: recovery for use of property, $1,500; recovery for contractual damages to property, $50.00; recovery for tortious damages to property, $136.00; and punitive damages (attorneys' fees) $800.00. The appellant prosecutes an appeal to this court from said order.
This action was one at law and was, by agreement, tried by the judge without a jury, and his findings of fact have the same force and effect of a jury verdict upon the issues, and are conclusive upon appeal when supported by competent evidence. Beheler v. National Grange Mut. Ins. Co., 252 S.C. 530, 167 S.E. (2d) 436. We consider the exceptions in the light of this rule.
It appears from the testimony that the respondents own a tract of land containing eighteen acres and the lease by the respondents to the appellant covered approximately three acres thereof. It appears that the appellant has occupied the leased premises for a number of years under successive rental and lease agreements. When he first leased the premises there was located thereon a residence, which he occupied as a home, and a garage in which he conducted his leather processing business. Thereafter the appellant, in connection with his business, placed upon the leased premises a quonset hut, an office building, and a shop building in which he installed his machinery for processing leather. The machinery was placed and installed on either a concrete floor or concrete blocks. The appellant, in order to facilitate truck travel, placed several loads of gravel upon the driveways leading to his plant. Waste material from the leather processing operation was poured on the gravel driveways so trucks would not mire down. The appellant testified that in January of 1969 he, in preparation for vacating the leased premises, had the waste material removed from the premises.
It is undisputed that on January 16, 1969, the appellant vacated the residence house and surrendered the possession *7 thereof to the respondents and shortly thereafter the respondents' agent entered the vacated house and commenced repairing and refurbishing same.
It is undisputed that the appellant paid the agreed rental for the months of November and December 1968, and January 1969, as was provided in the lease agreement. Even though the last lease agreement expired by its own terms on February 1, 1969, the appellant paid to the respondents the sum of $150.00 as rent for the month of February 1969 and such was accepted by them. It further appears that some time after June 15, 1969, one of the respondents demanded of the appellant the rent for his occupancy of the premises and that he comply with his obligation under the terms of the lease. The demand was refused.
The appellant, in his own testimony, admitted that he moved the first of his two buildings from the leased premises about the middle of May, 1969, and that he continued to use the premises for his manufacturing operations until the middle of July, 1969.
John A. Townsend, one of the respondents, testified that he visited the leased premises in mid June of 1969 and there found the appellant's quonset hut, various materials and supplies, various timber, refuse and hardened rubber waste materials on the ground adjacent to the manufacturing area; two broken well caps and the fence surrounding the lot was down in several places. This witness also testified that he revisited the premises immediately prior to the trial on January 20, 1970, and found the area to be in approximately the same condition as it was when he visited the premises in June of 1969, except the quonset hut was gone.
James H. Wade, Jr., called as a witness in behalf of the appellant, testified that he visited the leased premises in September of 1969, and he found that a part of the quonset hut had not been removed and that the foundation for one of the machines inside the garage had not been removed. *8 He further testified that there was some question as to whether or not the substance he found on the ground should be removed. Upon a revisit to the premises, about six weeks later, the witness found that the remains of the quonset hut had been removed but the base for the machine was still there. He also stated that the waste materials had not been removed or buried.
One Robert B. Davis, who was engaged in landscaping and the construction of houses, testifying in behalf of the respondents, said he visited the area where the appellant had carried on his leather processing operation. This witness testified in detail as to what he found on the premises and gave as his opinion, that it would cost $480.00 to clear the area by removing the debris therefrom and making necessary repairs to the pump and fences.
The appellant testified, without objection, that he offered to pay $20.00 per month as rent for the leased premises through September of 1969, rather than the $150.00 per month provided for in the lease, and cited as his reason that he had vacated and was not occupying the residence thereon.
The first question to be determined is whether the trial judge erred in concluding that the appellant was a holdover tenant for three consecutive three month periods under the same terms and conditions as were contained in the previous lease between the parties which expired on February 1, 1969.
The general rule was, prior to the enactment of Section 41-1 et seq. of the Code, that where a tenant holds over after the expiration of the term provided for in his lease, with the consent of the landlord, a new tenancy arises to which the provisions of the expired lease are applicable. 49 Am. Jur. (2d), Landlord and Tenant, Section 1133, P. 1084; Dorrill v. Stephens, 4 McCord 59; Fronty v. Wood, 2 Hill 367; and National Bank of S.C. v. People's Groc. Co., 153 S.C. 118, 150 S.E. 478.
The General Assembly of this State, in 1946, passed an Act defining the law relative to landlord and tenant and providing *9 remedies in relation thereto. This Act is codified in Section 41-1 et seq. of the 1962 Code of Laws.
In Section 41-62 it is provided:
"When there is an express agreement, either oral or written, as to the term of the tenancy of a tenant for term or for years such tenancy shall end without notice upon the last day of the agreed term."
Section 41-54 provides:
"When a person enters upon or uses the premises of another without agreement or without the permission of the owner or by trespass the owner may at his option waive such tort and treat and deem such person a tenant at will. In such case the landlord shall have and be entitled to a reasonable rental for the use and occupation of such premises and all remedies for the enforcement of his rights in respect thereto as in other cases of tenancy at will."
Section 41-1 (3) provides:
"Every person other than the owner of real estate, excepting a domestic servant and farm laborer, using or occupying real estate without an agreement, either oral or in writing, shall be deemed a `tenant at will'."
It is provided in Section 41-64 that all tenants at will shall vacate the premises occupied upon twenty days written notice.
It is the position of the appellant that he was a tenant at will within the meaning of the quoted statutes and was not a tenant for three successive three-month terms under the same provisions and conditions of the three months lease that expired on February 1, 1969 and the respondents would be entitled only to a reasonable rental for the premises occupied by him after March 1, 1969.
Admittedly, the three months written lease expired on February 1, 1969 and, by oral agreement, the appellant occupied the rented premises during the month of February 1969, for which an agreed rental was *10 paid. After such termination, one continuing to occupy the premises, absent a new agreement, express or implied, comes squarely within the definition of a tenant at will. After February of 1969 the appellant was clearly a person occupying and using the real estate of the respondents without an agreement. As such, the statutes above quoted declare his status to that of a tenant at will and thereby abrogates the common law rule stated in the case of National Bank of S.C. v. People's Groc. Co., 153 S.C. 118, 150 S.E. 478. See also 49 Am. Jur. (2d) Landlord and Tenant, Sections 1137 and 1138, and the annotation in 152 A.L.R. 1395.
It follows that the trial judge was in error in finding that the appellant was a holdover tenant bound by the terms of the prior lease. The statutes to which we have referred make no exception, in case of a tenant holding over, to the provision that a tenancy terminates on the last day of the term.
In view of what we have said, we must remand this case to the lower court for the purpose of ascertaining a reasonable rental for the premises occupied by the appellant after March 1, 1969.
It was provided in the original lease that upon the termination thereof, that the appellant would remove or cause to be buried all deleterious substances and rubber waste materials which may have been discharged upon the surface of the leased premises. It was provided in the second lease that if the foregoing obligation was not met by the appellant, the monthly rental rate should continue for such reasonable time as the respondents could arrange to have the deleterious substances and rubber waste materials removed from the said premises at the expense of the appellant.
It appears from the evidence that the appellant did not remove the waste materials from the leased premises at the termination of the lease. The trial judge awarded judgment to the respondents in the amount of $50.00, that being the cost of the removal of the waste materials left upon the leased premises and, in addition thereto, found that two months *11 was a reasonable period for the respondents to arrange to have the property cleared of the waste materials and accordingly, for this reason, awarded them an additional two months rent at $150.00 per month. The appellant challenges this ruling on the ground that two months was an unreasonable length of time for the respondents to arrange to have the waste materials removed from the premises, particularly in view of the conclusion that the cost of such removal was only $50.00.
In view of the contention made by the appellant, it becomes necessary to determine whether or not two months was a reasonable time within which the respondents could arrange to have the waste materials removed from the leased premises. The expression "reasonable time" has no precise definition but what constitutes such depends entirely on the facts and circumstances of each particular case.
One of the respondents testified that upon the termination of the lease with the appellant that they intended to sell the property and not to lease or rent under any conditions to any person. It follows that the respondents lost no rent by reason of the waste materials remaining upon the premises. Likewise, there is no testimony of the loss of any sale of the property because of the presence of the waste materials upon the premises. There is no testimony on behalf of the respondents that they at any time attempted to arrange to have the waste materials removed, nor the length of time it would take to accomplish the removal thereof. The respondents seek to excuse themselves from not promptly having the waste material removed on the ground that both of them were residing outside of the State of South Carolina. The respondents have offered no evidence tending to show that they were in any manner damaged by reason of the waste materials remaining on the premises after the termination of the lease.
It is our conclusion that the trial judge was in error in allowing the respondents to recover rent for two months *12 after the expiration of the lease and in holding that such was a reasonable time for the respondents to arrange to have the waste materials removed from the premises. What was a reasonable time under the circumstances will be a question for determination upon a retrial of this case. Since the written lease terminated on February 1, 1969, and the oral rental agreement expired on March 1, 1969, it appears that this provision of the lease became inoperative after the expiration of a reasonable time from March 1, 1969.
The next question for determination is whether there was any evidence to sustain the trial judge's finding that there was tortious damage to the leased premises by the appellant. We find no evidence to establish such. It follows that the trial judge was in error in allowing such.
The respondents take the position that they have been damaged because they incurred the expense of employing attorneys to prosecute this action in their behalf. The trial judge awarded the respondents' attorneys' fees in the amount of $800.00. The appellant alleges that this was error and that attorneys fees are not recoverable as an item of damage in the absence of contractual or statutory liability therefor.
The contract between the parties contained no provision for the payment of attorneys' fees in the event of a breach thereof. Likewise, we have no statute permitting the recovery of attorneys' fees for the breach of a landlord and tenant contract.
We have held that recoverable damages do not include the expense of employing counsel except when so provided for by contract or statute. First Nat. Bank of Chillicothe v. McSwain, 93 S.C. 30, 75 S.E. 1106; United States Rubber Co. v. White Tire Co., 231 S.C. 84, 97 S.E. (2d) 403 and Rimer v. State Farm Mut. Auto Ins. Co., 248 S.C. 18, 148 S.E. (2d) 742.
The respondents argue that the $800.00 award, while designated by the trial judge as attorneys' fees, was an award, in fact, of punitive damages.
*13 This brings us to the question of whether awarding of punitive damages could properly be made in this case. We think not. The respondents in their complaint did not allege or claim that the appellant was guilty of any malicious conduct nor, have they offered any proof of any such conduct. It follows that the trial judge was in error in awarding attorneys' fees to the respondents. He should have held, under the facts of this case, and under the rule above announced, that the respondents were not entitled to recover attorneys' fees.
The trial judge awarded $50.00 as the cost for the removal of the waste materials from the leased premises. We find no evidence in the record fixing the cost of the removal of the waste materials at this figure. There is no evidence that the respondents incurred any expense for this purpose.
The judgment of the lower court is reversed and this case remanded thereto for a new trial in conformity with the views herein expressed.
Reversed and remanded.
LEWIS, BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2577277/ | 285 F. Supp. 2d 120 (2002)
Ellen DEVLIN, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. CIV. 399CV1863PCD.
United States District Court, D. Connecticut.
March 14, 2002.
*121 Harold R. Cummings, Cummings & Lanza, South Windsor, CT, Kevin Ladieu, Law Offices of Nicholas T. Kocian, Thomas P. Cella, Howard, Kohn, Sprague & Fitzgerald, Hartford, CT, for Plaintiff.
Christine L. Sciarrino, U.S. Attorney's Office-NH, Lauren M. Nash, U.S. Attorney's Office, New Haven, CT, Robin D. Smith, U.S. Department of Justice, Washington, CT, for Defendant.
RULING ON MOTION FOR RECONSIDERATION
DORSEY, District Judge.
Defendant moves for reconsideration of the denial of summary judgment. For the reasons set forth herein, reconsideration is granted and defendant's motion for summary judgment is granted.
I. BACKGROUND
Michael Murratti completed a form designating as beneficiaries his mother, Margaret M. Devlin, to receive 60% and his nephew, David M. Spinato, to receive 40% of the proceeds upon his death from the *122 Federal Employees' Group Life Insurance program ("FEGLI"). This form was properly filed in his official personnel file. Murratti received Federal Employees' Compensation for two separate motor vehicle accidents, which ultimately rendered him permanently disabled.
On May 2, 1990, Murratti sought to change his 40% FEGLI beneficiary designation from his nephew to plaintiff, his sister. The form changing beneficiaries was completed and filed at his place of employment although it was required to be forwarded directly to the Office of Personnel Management ("OPM") because he was receiving compensation benefits. The designation of beneficiaries was not filed with OPM prior to Murratti's death. Upon his death, both plaintiff and Spinato submitted claims for the FEGLI proceeds to Metro-politan Life Insurance Company ("MetLife"), the underwriter for FEGLI. After the United States Postal Service denied her claim for negligence in handling the change of beneficiary form, plaintiff commenced the instant action claiming that the United States Postal Service is liable under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Defendant now seeks reconsideration of the ruling denying its motion for summary judgment.
II. DISCUSSION
Plaintiff sues under the FTCA, claiming that government employees acted negligently within the course of their employment, thereby injuring plaintiff. Defendant argues that plaintiff is not entitled to relief under the FTCA because her claim does not constitute "injury or loss of property," thus her claim does not come within the purview of the federal government's waiver of sovereign immunity.
A. Standard of Review
A party moving for summary judgment must establish that there are no genuine issues of material fact in dispute and that he is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In determining whether a genuine issue has been raised, all ambiguities must be resolved and all reasonable inferences be drawn against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). The nonmovant cannot rest on the pleadings, Anderson, 477 U.S. at 256, 106 S. Ct. 2505, but must supplement the pleadings with affidavits, depositions, and answers to interrogatories, Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
B. Analysis
The FTCA waives the sovereign immunity of the federal government for claims of negligence by its employees. See Coulthurst v. United States, 214 F.3d 106, 108 (2d Cir.2000). Plaintiff bears the burden of proving that her claims fall within an applicable waiver of sovereign immunity. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). The FTCA waives its sovereign immunity for claims satisfying the following six elements:
"[1] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance *123 with the law of the place where the act or omission occurred."
FDIC v. Meyer, 510 U.S. 471, 477, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994) (quoting 28 U.S.C. § 1346(b)(1)).
The ruling denying the motion for summary judgment concluded Connecticut tort law would permit an action under the circumstances if the United States were a private party. Such a claim, however, is limited to claims involving "injury or loss of property," see 28 U.S.C. § 1346(b)(1), regardless of whether plaintiff could pursue a similar claim against a private actor under the laws of Connecticut. See Cal. v. United States, 307 F.2d 941, 944 (9th Cir. 1962). Although the scope of the waiver of sovereign immunity is defined to some extent by reference to state law, see Smith v. United States, 507 U.S. 197, 201, 113 S. Ct. 1178, 122 L. Ed. 2d 548 (1993), the reference in § 1346(b)(1) to "injury or loss of property" is a question of federal statutory construction. The reference has been considered a separate element necessary to satisfy the relevant waiver of sovereign immunity. See Meyer, 510 U.S. at 477, 114 S. Ct. 996. To interpret the phrase as otherwise and permit any cause of action in negligence allowed under state law would reduce the phrase to surplusage. See Mertens v. Hewitt Assocs., 508 U.S. 248, 258, 113 S. Ct. 2063, 124 L. Ed. 2d 161 (1993).
The term "property" is not defined by the FTCA. A term not defined by the FTCA is to be construed "in accordance with its ordinary or natural meaning." Meyer, 510 U.S. at 476, 114 S. Ct. 996. "Property" is defined as "[t]hat which is peculiar or proper to any one person; that which belongs exclusively to one" or "ownership; the unrestricted and exclusive right to a thing; the right to dispose of a thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it." BLACK'S LAW DICTIONARY 1216 (6th ed.1990). It has also been defined as "anything of material value owned or possessed[; or] ... [t]hat to which a person has a legal title.... It may include everything which is the subject of ownership." Verdon v. Transamerica Ins. Co., 187 Conn. 363, 366-67, 446 A.2d 3 (1982) (citations omitted; internal quotation marks omitted). The waiver of sovereign immunity thus addressed "the ordinary `common law' type of tort, such as personal injury or property damage caused by the negligent operation of an automobile." Dalehite v. United States, 346 U.S. 15, 25 n. 10 73 S. Ct. 956, 97 L. Ed. 1427 (1953) (quoting Hearings before House Committee of Judiciary, 77th Cong., 2d Sess., on H.R.5373 and H.R.6463, p. 24.)
Plaintiff's does not claim that she has a legal claim as beneficiary of the insurance policy. As a matter of law, she has no such claim.[1] She claims that acts of the federal government impaired her expected property interest. It has been said that "[a]n expectancy is only the bare hope of succession to the property of another, such as may be entertained by an heir apparent.... Such a hope is inchoate. It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist." Krafick v. Krafick, 234 Conn. 783, 797, 663 A.2d 365 (1995) (citation omitted; internal quotation marks omitted). Plaintiff's inchoate interest cannot satisfy the definition of property pursuant to § 1346(b)(1). See Charles Burton Builders, Inc. v. United States, 768 F. Supp. 160, 162 (D.Md.1991) ("[I]n order to be covered by the FTCA there must have been a physical impact of some type *124 on the plaintiff or its property ....") Although the result is unfortunate, jurisdiction over plaintiff's claim may only be sustained if she establishes that it falls within an applicable waiver of sovereign immunity, which must be strictly construed in favor of the sovereign, see Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 261, 119 S. Ct. 687, 142 L. Ed. 2d 718 (1999).[2] Having failed to establish that her claim falls within such a waiver, this Court does not have jurisdiction to hear her claim. Defendant's motion for summary judgment is granted.
III. CONCLUSION
The motion for reconsideration (Doc. 34) is granted. For the reasons discussed above, the previous ruling (Doc. 27) is vacated and defendant's motion for summary judgment is granted. The Clerk shall close the file.
SO ORDERED.
NOTES
[1] On May 11, 2000, decedent's nephew was granted a declaratory judgment that he, not plaintiff, was the beneficiary and entitled to the proceeds of the life insurance policy.
[2] Although the claim addressed in Metropolitan Life Ins. Co. v. Atkins, 225 F.3d 510, 513 (5th Cir.2000), is similar to the present claim, the decision centers on whether the claim was properly characterized as negligent misrepresentation, for which sovereign immunity has not been waived, or the negligent performance of an operational task, for which sovereign immunity has been waived. The Court did not address whether the claimed loss satisfied the definition of "injury or loss of property." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263795/ | 479 F.Supp. 880 (1979)
REALCO SERVICES, INC., et al.
v.
Thomas J. HOLT et al.
Civ. A. No. 77-4097.
United States District Court, E. D. Pennsylvania.
September 5, 1979.
*881 *882 Andrew C. Hecker, Jr., Hecker & Maginnis, Philadelphia, Pa., for plaintiffs.
Arnold Levin, Adler, Barish, Daniels, Levin & Creskoff, Frederick C. N. Littleton, Philadelphia, Pa., for defendants.
MEMORANDUM AND ORDER
NEWCOMER, District Judge.
The Court has twelve motions currently before it for decision in this case. Local Rule of Civil Procedure 16(b) states that no attorney shall "present to the Court vexatious motions . . . or shall otherwise so multiply the proceedings in a case as to increase unreasonably and vexatiously the costs thereof." After review of each of the twelve motions outstanding, the Court does not believe that any can be called "vexatious". On the other hand, many are not substantial enough to require discussion and will be dealt with in the accompanying Order. Certainly some might better have been resolved among counsel or perhaps withdrawn after further reflection. The Court notes the provisions of Local Rule 16 only to alert counsel that in the future the Court will refuse to consider any vexatious motions, and will, under the implied authority of Local Rule 16(c), order them stricken from the record.
By Memorandum and Order dated May 30, 1979, the Court ordered plaintiffs' lead counsel disqualified from further representation of the plaintiffs in this case. Most of the briefing of the instant motions was done by disqualified counsel. Nevertheless, the defendants will not be prejudiced by the Court's considering any of the pleadings of former counsel. Most of the motions involve purely legal issues which do not relate in any way to the prior representation. The briefs present arguments that any competent lawyer might have made in the circumstances of this case.
The discovery requests made by plaintiffs' former counsel present a more difficult question, because in theory the prior representation of certain of the defendants might have enabled counsel to "know what to ask for". After a careful review of the requests, however, the Court has found none that appears to be based on special knowledge. Given the facts in the plaintiffs' possession and the allegations of the complaint, any competent lawyer might have made similar requests.
Any prejudice to the defendants confidentiality interests was adequately cured by the May 30, 1979, Order of Disqualification.
I.
The Objections of First Pennsylvania Bank, N.A., to a Deposition Subpoena are sustained, because of plaintiffs' failure to comply with Rule 30(b)(6) F.R.Civ.P. Plaintiffs' counsel may revise the subpoena to cure any defects, and shall attempt to negotiate a mutually agreeable scope for the subpoena with counsel for the Bank. Cf. Local Rule 25(d). For the guidance of counsel, the Bank's objections Nos. 1 and 2 appear meritorious; objection No. 3 appears not to be meritorious; and objection No. 4 *883 is mooted insofar as any of the non-parties referred to therein have been made parties. Objection No. 4 may properly be made the subject of negotiations on the issue of burdensomeness.
II.
The plaintiffs' Motion to Compel Answers to Interrogatories is granted as to Interrogatories 1(g-1), 2, 3, 4, 7, 8, 9, 10 and 11. The defendants shall file full and complete and responsive answers within thirty days of the date of this Order, or the Court will impose sanctions.
The interrogatories in question go to the heart of the case. After consideration of a similar motion to compel the Court has already ordered them to be answered. The defendants, however, filed patently insufficient answers, including objections unsupported by adequate explanations therefor, and unsupportable attempts to rely on Rule 33(c), F.R.Civ.P. These interrogatories must be answered and this litigation shall proceed, and the Court will take all appropriate steps to enforce timely compliance with this Order.
Interrogatory No. 5 stands on a slightly different footing, since it is really a request for production of documents. The request is massive, but the documents sought are relevant to the subject matter of this lawsuit. Rule 26(b)(1), F.R.Civ.P.
Nevertheless, the request as framed appears burdensome. Without prejudice to the plaintiffs' right to renew their request for items not granted, the Court orders the defendants to produce the documents requested in sub-paragraphs a, b, c, d, e, f, g, j, m, o, q, r, s of Interrogatory 5 within sixty (60) days of the date of this Order.
III.
The plaintiffs' Motion to Strike Various Affirmative Defenses is denied. The Court has not been briefed, and will not speculate, as to whether a finding that the alleged maritime contracts did not exist would deprive it of subject matter jurisdiction, assuming (without deciding) incomplete diversity of citizenship. However, the presence of defenses disclaiming diversity do not prejudice the plaintiffs, and in the event that admiralty jurisdiction is found not to exist, such defenses will obviously be relevant.
IV.
The plaintiffs' Motion to Dismiss the First and Second Counterclaims is granted.
The First Counterclaim alleges that the plaintiffs' agreement to join in this suit is a combination or conspiracy in restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. For such a claim to lie, the defendants must allege that the plaintiffs' action is a "sham", intended not to pursue legitimate remedies in this Court, but instead unlawfully to harm the defendants' businesses. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). An example of such a claim might be where a group of plaintiffs jointly begin a commercial action simply to be in a position to dismiss the suit in exchange for the defendant's agreeing to enter into a price-fixing conspiracy with them.
The instant counterclaim, however, does not allege that the plaintiffs' primary purpose in bringing this litigation was to destroy the defendants' businesses. California Motor Transport, supra, establishes a scienter requirement for the type of antitrust violation alleged here. In that case the Supreme Court balanced the plaintiffs' First Amendment right of access to the courts (and the chilling effect that potential antitrust liability might have on that right) against the purposes of the Sherman Act, and held that the First Amendment does not protect court actions when "the real intent of the conspirators was not to invoke the processes of the administrative agencies and courts, but to discourage [the legitimate competitive activities of their competitors]. Such an intent would make the conspiracy `an attempt to interfere with the business relationships of a competitor and the application of the Sherman Act would be justified.' Eastern Railroad Conference *884 v. Noerr Motor Freight, 365 U.S. [127] at 144 [, 81 S.Ct. 523, 5 L.Ed.2d 464]." California Motor Transport, supra., 404 U.S. at 518, 92 S.Ct. at 615 (Stewart, J., concurring; the qualification was apparently adopted by the majority, 404 U.S. at 515, 92 S.Ct. 609) (emphasis in original).
The counterclaim at issue is very carefully and precisely drafted. The defendants have not alleged that the plaintiffs' primary (or "real") intent in filing suit was to injure the defendants' businesses. The counterclaim does, however, carefully allege that the "primary purpose" of the defendants and third-party defendants, Semack, Kavula and Castelbuono in procuring suit was to "destroy the business" of the defendants. The pivotal paragraph is Paragraph 195, where it is alleged that the plaintiffs "knew or had reason to know" of the primary purpose of Semack, Kavula and Castelbuono. Nowhere is it alleged that the plaintiffs intended to destroy the defendants' businesses. Significantly, there is no allegation that the plaintiffs and defendants are competitors, nor that the plaintiffs had any reason to wish to harm the defendants beyond the harm inflicted by recovery of a judgment.
As a rule, conspiracy must be pleaded with specificity. See, e. g., Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972). Such specificity is especially important where fundamental First Amendment rights may be chilled by the allegation. This Court has grave doubts about the wisdom of recognizing any but the most serious and carefully articulated claims of anticompetitive behavior in a counterclaim such as this. Virtually any two co-plaintiffs in a commercial lawsuit are vulnerable to the charge that they "conspired and agreed" to "harm the defendant's business" by bringing suit in the first place. Without a requirement that a party allege (in good faith compliance with Rule 11, F.R.Civ.P.) a primary intent to harm another's business, nearly every two-plaintiff commercial lawsuit could become an antitrust suita result that could not have been contemplated by Congress in enacting the Sherman Act.
The counterclaim must also be dismissed on an alternative ground. The plaintiffs assert that the defendants and they are not competitors, and the counterclaim itself does not allege that the parties are competitors. In their Answer to the Motion to Dismiss, the defendants implicitly admit as much. Hence, their claim does not properly invoke the "sham" exception first recognized in Eastern Railroad Presidents' Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961):
"There may be situations in which a . . campaign, ostensibly directed toward influencing governmental action is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified." (emphasis added)
365 U.S. at 144, 81 S.Ct. at 533.
In California Motor Transport, supra, the complaint alleged that the purpose of the conspiracy in filing vexatious lawsuits was to "[put] their competitors, including plaintiff, out of business . . ." 404 U.S. at 511, 92 S.Ct. at 612. Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 97 S.Ct. 2881, 53 L.Ed.2d 1009 (1977), and Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973) cited by the defendants, also involved competitors.
It is crucially important that Noerr and California Motor Transport recognized the possibility of an exception to First Amendment immunity, not a First Amendment exception to Sherman Act liability. Especially where First Amendment rights are involved, courts should be careful not to expand an exception beyond its original scope, absent some clear indication from the Supreme Court that the exception is not so limited. Thus far, the exception has been limited indeed, as the holding in Noerr (upholding immunity) made obvious.
In California Motor Transport, the Court recognized an exception to First Amendment immunity where the alleged sham lawsuits posed an immediate and direct *885 threat to a competitor and to competition. However, the Court also specifically reaffirmed that the First Amendment rights of association and petition include joint access to the courts for groups of commercial plaintiffs. It can hardly be inferred from that holding that other alleged restraints of trade not involving competitors are sufficient to invoke the exception so long as allegations of "sham-ness" are made. If such allegations were sufficient to trigger the sham exception, the Sherman Act exception would swallow the First Amendment rule.
Because the "sham" lawsuit exception has not been extended to include the type of claim asserted here, the claim must be dismissed with prejudice. Cf. Miller & Son Paving, Inc. v. Wrightstown Twp. Civic Assoc., 443 F.Supp. 1268 (E.D.Pa.1978), aff'd, 595 F.2d 1213 (3d Cir. 1979).
The Motion to Dismiss the Second Counterclaim is not opposed by the defendants. The claim (malicious prosecution) has not matured, and is dismissed without prejudice.
V.
The Motion of Defendants Semack, Kavula and MTS Agencies, Inc. to Dismiss the Cross-Claims and Third-Party Claims is denied.
Rule 4(f), F.R.Civ.P., is a federal grant of jurisdiction over the persons of Rule 14 or Rule 19 defendants who are located within 100 miles of the courthouse. The "minimum contacts" requirement of due process need not be satisfied independently. Coleman v. American Isbrandtsen Lines, Inc., 405 F.2d 250 (2d Cir. 1968).
The defendants' antitrust crossclaim is colorable. Semack, Kavula and MTS Agencies are alleged to have conspired to procure litigation against the defendants for the primary purpose of destroying the defendants' businesses. It is not alleged that the third-party defendants actually filed suits themselves. Given that fact, little, if any, First Amendment immunity attaches to the third-party defendants' conduct, and that alleged conduct is actionable under the Sherman Act.
One possible difficulty in establishing such a claim requires comment. Semack and Kavula appear to be officers of MTS Agencies. It is well established that a conspiracy cannot be based on an agreement between a corporation and its officers, agents or employees. Morton Buildings of Nebraska v. Morton Buildings, Inc., 531 F.2d 910, 917 (8th Cir. 1976) and cases cited. Cf. Goldlawr, Inc. v. Shubert, 276 F.2d 614, 617 (3d Cir. 1960). A possible exception to the rule exists where the employees are acting beyond the scope of their employment or for their personal interests. Johnston v. Baker, 445 F.2d 424 (3d Cir. 1971). However, the Court has no clear picture of the structure of MTS Agencies nor of Semack's and Kavula's activities, and the defendants, as non-moving parties, are entitled to rely on their opponents' failure to make a record.
The cross-claim may also fail to state a cause of action if Semack, Kavula and MTS Agencies are not competitors of those with whom they have conspired, Mastandrea v. Gurrentz International Corp., 65 F.R.D. 52 (W.D.Pa.1974), but, again, the record is unclear on that point. Any further action by the Court must await further development of the facts.
One factual representation made by counsel for the defendants in his answering papers requires clarification. At p. 5 of defendants' Answer to the Motion to Dismiss counsel represented that Holt, Gloucester Shipping and Worldwide Marine "have never had any equity or debt interest in nor were they officers or directors of MTS or Agencies". The contract under discussion in the Memorandum contained an understanding that as of May 6th, 1977, Holt and the named companies had no such interest, and the Holt affidavit at Paragraph 14 simply restates the terms of the contract. Neither document states that no such interests have ever existed.
The Court assumes that any ambiguity was unintentional, and not intended to mislead *886 the Court or the parties. However, on an issue that is so central to this litigation, the Court must order either an amendment to the Holt affidavit stating that neither Gloucester, Worldwide nor Holt has ever had any debt, equity or managerial (officer or director) interests in MTS and MTS Agencies, or a statement from counsel retracting the statement at p. 5 of the brief.
Finally, the releases executed in favor of Semack, Kavula and MTS Agencies cannot be given effect at this stage of the case. If the defendants' allegations of material breaches of the agreement of which the releases were allegedly a part are true, the defendants may be able to avoid the effect of the releases, Diesel Heat and Power, Inc. v. Dixon Marine Industrial Power Transmission, Inc., 232 F.2d 217 (5th Cir. 1956), especially if the consideration recited in the releases was not the true consideration for their execution. Thus, the third party defendants' Motion to Dismiss the Cross-Claims and Third-Party Claims on grounds of release must be denied.
VII.
The defendants' motion for Leave to Amend the Third-Party Complaint is denied. The motion is, in reality, a Motion for Leave to Join a Third-Party under Rule 14(a), and is as such untimely under Local Rule of Civil Procedure 24(a). That Rule makes mandatory (except in extraordinary situations), the filing of a third-party complaint within six months of the date of the defendants' answer. The Rule has not been complied with here, and no extraordinary circumstances exist which justify disregarding it.
In any event, leave to join must be denied on the merits. Joinder of counsel for MTS Agencies would inject unnecessary and unmanageable complications into the case. Issues of attorney-client and work product privilege would all but stall the discovery process, especially considering the past record of the present parties on discovery matters. Furthermore, the attorney-client issues would create serious difficulties at trial.
Plaintiffs' counsel have already been disqualified with concomitant delay. Joinder of the third parties' counsel would be likely to exacerbate that delay while all of the partners in the third-party defendant law firm retained counsel.
Finally, there is no indication whatsoever that the defendants cannot obtain complete relief from the alleged coconspirators (Semack, Kavula and MTS Agencies) who are already in the case. Under the circumstances, joinder would be unreasonable, and must be denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263814/ | 479 F.Supp. 259 (1979)
Calvin RICHARDSON and Thywenston G. Swain, Plaintiffs,
v.
NORFOLK SHIPBUILDING AND DRYDOCK CORPORATION, Defendants.
Civ. A. No. 79-245-N.
United States District Court, E. D. Virginia, Norfolk Division.
September 24, 1979.
*260 Ralph Rabinowitz, Rabinowitz, Rafal & Swartz, Norfolk, Va., for plaintiffs.
John B. King, Jr., Vandeventer, Black, Meredith & Martin, Norfolk, Va., for defendants.
*261 MEMORANDUM OPINION
CLARKE, District Judge.
Plaintiffs Richardson and Swain filed a Complaint in this Court on March 1, 1979, seeking damages against Norfolk Shipbuilding and Drydock Corporation (hereinafter "Norfolk Shipbuilding") for personal injuries sustained on May 4, 1978, while they were sandblasting a Navy vessel undergoing repair at defendant's shipyard. The Complaint asserts alternative causes of action against Norfolk Shipbuilding: (1) an action as seamen under the Jones Act, 46 U.S.C. § 688; and (2) if plaintiffs are not considered to be seamen, an action for "shipowner's occasioned negligence which proximately contributed to plaintiffs' injuries." Complaint at ¶¶ 1, 6. The Court's jurisdiction is based upon 28 U.S.C. § 1333 (admiralty) and 28 U.S.C. § 1331 (federal question).
This matter is now before the Court on Motions for Summary Judgment filed pursuant to Rule 56, Federal Rules of Civil Procedure, by plaintiffs and defendant. The plaintiffs seek summary judgment against the defendant on the issue of liability, leaving to the jury the determination of the amount of damages. Plaintiffs assert that undisputed facts show that their injuries were caused by the negligence of a crane rig operator of a derrick barge, which is a vessel as a matter of law. Accordingly, Norfolk Shipbuilding, the vessel owner, is liable as a matter of law for the negligence of its employee operating the crane. Norfolk Shipbuilding has responded to plaintiffs' Motion for Summary Judgment by filing its own Motion for Summary Judgment contending that, as a matter of law under the undisputed facts of the case, plaintiffs are not entitled to recover on either of the two asserted causes of action because (1) plaintiffs are not seamen within the meaning of the Jones Act, and (2) plaintiffs are barred by the Longshoremen and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. § 905, from bringing an action for the "shipowner's occasioned negligence." Defendant also has filed a Motion to Strike plaintiffs' demand for a jury trial, if the Court determines that plaintiffs cannot pursue their action under the Jones Act but can continue with their negligence action against defendants. Before addressing the merits of these motions, the facts of the case will be briefly reviewed.
I. Factual Background
The plaintiffs, Calvin Richardson and Thywenston G. Swain, were employed as sandblasters by Norfolk Shipbuilding on May 4, 1978, the day that the alleged injuries occurred. Plaintiffs did not have a permanent job assignment but received their assignments when they reported to work each day. Upon reporting to work at the paint shop of Norfolk Shipbuilding that day, the plaintiffs were assigned to work on board the U.S.S. NASHVILLE, a Navy vessel undergoing repair at the shipyard. After reporting aboard the NASHVILLE, Richardson and Swain were advised that their sandblasting work was to be done on the angles underneath the flight deck. Since the NASHVILLE was not in drydock and since the sandblasting task was to be performed on the offshore side of the vessel (away from the pier side), it was necessary for a crane to hoist Richardson and Swain to the job in a workers' tray. They were to perform their work while suspended in the tray alongside the NASHVILLE. The crane used for this purpose was a yard derrick moored alongside the NASHVILLE and owned by defendant Norfolk Shipbuilding.
The yard derrick in question consists of a crane mounted on a flat barge. The barge is not self-propelled but must be moved by tug from place to place. The crane on the barge is operated by the same individuals who operate shorebased cranes, which perform some of the same functions as the yard derricks. There is no indication that the yard derricks have regular assigned crews, and the defendant contends that the crane operators on both the shorebased and the yard derrick cranes are ship repairmen rather than seamen. The crane operator of the yard derrick on May 4, 1978, was M. A. Fedock, an employee of Norfolk Shipbuilding, *262 assigned to the crane department at the shipyard.
Richardson and Swain, with their sandblasting equipment, entered the workers' tray from the flight deck of the NASHVILLE. The tray had been lifted by the crane to the flight deck, and at no time did either plaintiff come in contact with the barge itself, other than being in the tray. At all times during this maneuver, the yard derrick itself was moored and not being moved to different locations.
While plaintiffs were engaged in the sandblasting operation alongside the NASHVILLE, the tray fell, struck the deck of the barge, and allegedly injured the plaintiffs. The crane operator, in his deposition of July 18, 1979, indicated that he was responsible for engaging the brake of the crane; that although he thought the brake was engaged, it was not; and that the tray fell because the brake was not properly engaged. Dep. of Michael Andrew Fedock at 10 (lines 19-25), at 11 (lines 1-22, 25), at 12 (lines 1-4). Plaintiffs received compensation for their alleged injuries under the LHWCA.
On the basis of the foregoing facts, as well as the affidavits and briefs filed, the Court will first examine whether plaintiffs are seamen under the Jones Act, thereby entitling them to relief under that Act. The Court will then determine whether plaintiffs can bring an action for shipowner's negligence. If plaintiffs can maintain the negligence action, the Court will then rule on plaintiffs' Motion for Summary Judgment, and if necessary, on defendant's Motion to Strike the demand for a jury trial.
II. The Jones Act Claim
In order to bring a cause of action under the Jones Act, 46 U.S.C. § 688,[1] the plaintiff must be a "seaman." See, e. g., Whittington v. Sewer Construction Co., 541 F.2d 427 (4th Cir. 1976). The Court in Whittington delineated the requirements for establishing that an individual is a "seaman" under the Jones Act:
The term "seaman" when used in a jurisdictional sense refers to one who is a "member of the crew" of a vessel. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940). . . . To qualify as a "member of the crew" under the Jones Act one must be more or less permanently attached to a vessel or fleet; he must be one whose duties serve "naturally and primarily as an aid to navigation" in the broadest sense, and the vessel must be in navigation.
541 F.2d at 433, 436 (footnotes omitted).
Under the above jurisdictional test, plaintiffs do not qualify as "seamen." They were not more or less permanently attached to a vessel, either the yard derrick or the NASHVILLE. Rather, they were employed by the shipyard as sandblasters; they lived, ate, and slept on shore in their own residences; and they received their work assignments on a daily rotational basis. The law requires more than the temporary relationship between the vessel and the worker which existed in the present case. See, e. g., Whittington v. Sewer Construction Co., supra at 436 (laborer assigned to work on barge for day with primary responsibility for demolition of bridge not a "seaman"); Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 37 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976) (individual assigned on a temporary, daily basis not a "seaman"); Burns v. Anchor-Wate Co., 469 F.2d 730, 733 (5th Cir. 1972) (individual neither took meals nor slept on barges and performed no function necessary to operate barge); Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42, 46 (5th Cir. 1960) (welder who lived, ate, and slept at home not a "seaman"). See also Senko v. La Crosse Dredging *263 Corp., 352 U.S. 370, 372, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957); Norton v. Warner Co., 321 U.S. 565, 573, 64 S.Ct. 747, 88 L.Ed. 931 (1944).
Since the facts of this case clearly show that the plaintiffs did not have the requisite permanent attachment to a vessel to qualify, as a matter of law, as "seamen" under the Jones Act, the Court need not examine the other two requisites delineated in Whittington v. Sewer Construction Co., supra. However, the Court does note that the facts also show that plaintiffs were not aboard the yard derrick barge, or the NASHVILLE, to aid in its navigation. They were performing sandblasting and repair tasks to the NASHVILLE from the suspended tray on the crane of the yard derrick when they were allegedly injured, and they were in no way connected with the navigation of a vessel.[2]See, e. g., Whittington v. Sewer Construction Co., supra; Griffith v. Wheeling Pittsburgh Steel Corp., supra; Burns v. Anchor-Wate Co., supra.
III. Shipowner's Negligence Claim Under the LHWCA
Plaintiffs received compensation for their alleged injuries under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901 et seq. Norfolk Shipbuilding contends that such compensation bars this action against them because § 5 of the Act, 33 U.S.C. § 905, provides:
(a) The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death . . .
(b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.
Plaintiffs, however, assert that they can still sue their employer, Norfolk Shipbuilding, despite the fact that they received compensation benefits under the LHWCA, because the alleged negligence of defendant was "vessel owner occasioned negligence" and because § 905(b) specifically permits recovery for such negligence. Moreover, plaintiffs rely upon the case authority which permits an action against the compensating employer when "vessel owner occasioned negligence" is involved. In re Allied *264 Towing Corp., 416 F.Supp. 1207 (E.D. Va.1976), aff'd sub nom., Allied Towing Corp. v. Tatem, 580 F.2d 702 (4th Cir. 1978); Smith v. M/V Captain Fred, 546 F.2d 119 (5th Cir. 1977); Griffith v. Wheeling Pittsburgh Steel Corp., supra. See Edmonds v. Compagnie Generale Transatlantique, ___ U.S. ___, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979). Accordingly, since this Court in In re Allied Towing Corp., supra, already has recognized that the compensating employer can be sued for vessel occasioned negligence, it need only determine whether the present action falls within this narrow exception.[3]
In order "to have a cause of action, it must be established that ship occasioned negligence occurred and was a cause of the injury." In re Allied Towing Corp., supra at 416 F.Supp. 1207, 1209. The Court agrees with plaintiffs that the yard derrick barge in question is a vessel as a matter of law. See e. g., Ellis v. United States, 206 U.S. 246, 249, 27 S.Ct. 600, 51 L.Ed. 1047 (1907) (dredge and scows); Ex parte Easton, 95 U.S. 68, 24 L.Ed. 373 (1877) (canal barge); Summerlin v. Massman Construction Co., 199 F.2d 715 (4th Cir. 1952) (derrick barge); Jeffrey v. Henderson Brothers, 193 F.2d 589 (4th Cir. 1951) (dredge barge). Moreover, Norfolk Shipbuilding admittedly owns the yard derrick, leaving only a determination of whether the alleged negligence of the crane operator is imputable to the vessel and thereby to its owner, Norfolk Shipbuilding.[4]
While § 905(b) refers to "negligence of a vessel," the term "vessel" is defined in the LHWCA, 33 U.S.C. § 902(21), as follows:
The term "vessel" means any vessel upon which or in connection with which any person entitled to benefits under this chapter suffers injury or death arising out of or in the course of his employment, and said vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crew member.
Therefore, under the Act, if the crane operator was functioning as a crew member of the vessel, as plaintiffs contend,[5] by definition his negligence is that of the vessel,[6]*265 and the vessel's owner, Norfolk Shipbuilding, is liable for the vessel occasioned negligence.[7] On the other hand, if the crane operator was providing repair services and not serving as the vessel's crew member, then § 905(b) specifically disallows a negligence action against the vessel "if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel."[8] In effect, then the vessel is liable only for its own negligence and not that of those providing repair, ship building, or stevedoring services. See, e. g., Griffith v. Wheeling Pittsburgh Steel Corp., supra at 521 F.2d 31, 40-44; Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 507 (2d Cir. 1976).
In determining whether Mr. Fedock, the crane operator, was serving as a ship repairman or a crew member on the yard derrick, it is necessary again to apply the test of whether the worker in question had a more or less permanent connection with a vessel in navigation and whether the worker was aboard primarily to aid in navigation. See, e. g., Bellomy v. Union Concrete Pipe Co., 297 F.Supp. 261 (S.D.W.Va.1969), aff'd, 420 F.2d 1382 (4th Cir. 1970), cert. denied, 400 U.S. 904, 91 S.Ct. 144, 27 L.Ed.2d 142 (1970).[9]
In applying this test to Mr. Fedock, it is clear that he was not a crew member of the yard derrick as plaintiffs have contended. He did not have a more-or-less permanent connection to the yard derrick; he was an employee of the crane department at Norfolk Shipbuilding with duties to operate both shorebased and yard derrick barge cranes. Fedock did not have a regular assignment to the yard derrick in question, but rather he had only operated the crane since 8:00 a. m. on the morning of the accident. Dep. of Michael Andrew Fedock at 5-6. Moreover, he was not aboard to aid in navigation;[10] rather, he was aboard to operate the crane. In effect, then, Fedock's responsibilities on the yard derrick related to the repair work being performed on the U.S.S. NASHVILLE; he operated the crane that held and maneuvered the sandblasters, thereby enabling them to perform the repairs to the NASHVILLE. The repairs to the off-shore side of the NASHVILLE could not have been performed without the crane operator, who was a ship *266 repairman like the plaintiffs.[11] Moreover, the Benefits Review Board, an administrative board charged with interpreting the LHWCA in relation to compensation claims asserted thereunder, recently has held that a crane operator on a derrick barge was a harbor worker and not a crew member of the barge. Crauthers v. Northwestern Construction Co., 9 BRBS 880 (1979).[12]
Therefore, if the crane operator is not a crewman, and does not fall within any of the categories set forth in the definition of vessel in 33 U.S.C. § 902(21) of the LHWCA,[13] his alleged negligence cannot be imputed to the vessel, thereby constituting vessel occasioned negligence as the basis of a cause of action. Furthermore, as the Court already has articulated, if the crane operator is a harbor worker serving in a ship repairer function, 33 U.S.C. § 905(b) of the Act specifically bars an action for ship repairer negligence. Since plaintiffs cannot bring an action against the compensating employer under § 905(a) and since § 905(b) excludes an action against the vessel for ship repairer negligence, the Court GRANTS summary judgment for the defendant.
The Court does further note, however, that while this case involves an unusual factual situation which does not fit precisely into the language of the statute precluding an action for ship repairer's negligence because the vessel undergoing or receiving the actual repair services did not cause the alleged injuries,[14] the legislative history to the 1972 Amendments to the LHWCA clearly shows that Congress only intended to provide longshoremen employed directly by a vessel with a right to maintain an action against that vessel for injuries due to the negligence of the vessel's crew or unsafe conditions on board the vessel, not for the negligence of independent stevedores or ship repairmen. See Griffith v. Wheeling Pittsburgh Steel Corp., supra at 521 F.2d 31, 40-45; Napoli v. Hellenic Lines, Ltd., supra at 507.[15] As already indicated *267 in this Opinion, no allegations or facts support any contention that the crane operator was a crew member or that any unsafe condition existed on board the vessel, such as the brake was not property maintained, repaired, or working. In the present case, the yard derrick was performing a repair function, as was the crane operator. This alleged vessel owner negligence is in effect the operational negligence of the operator of the crane on the derrick barge. The only basis for contending that vessel owner negligence is involved is that the crane which was being used was mounted on a barge rather than on the pier. This is not the type of situation envisioned by Congress in 1972 when it carved out a narrow exception to the general rule that the right to receive compensation is an injured employee's exclusive remedy against his employer in § 905 of the Act.[16]
In summary, the Court GRANTS defendant's Motion for Summary Judgment on both the Jones Act claim and the shipowner's negligence claim. Therefore, it is not necessary for the Court to consider plaintiff's Motion for Summary Judgment on the issue that the crane operator was negligent was a matter of law, leaving only a determination of damages, or to consider defendant's Motion to Strike plaintiffs' demand for a jury trial.
NOTES
[1] This section states in pertinent part:
Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply . . ..
[2] The term "in navigation" has been broadly construed to encompass a vessel "as an instrument of commerce or transportation on navigable waters." Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 37 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976), citing 2 M. Norris, The Law of Seamen § 668 at 301 (3d ed.1970). The vessel does not need to be moving or involved in actual navigation; it just needs to be on navigable waters. Id. Under this broad construction, the yard derrick in question, assuming it is a vessel, see text of opinion infra, was "in navigation." The Court does not, however, need to consider this fact further since the plaintiffs do not meet the other two requirements to qualify as "seamen" under the Jones Act.
[3] In enacting the 1972 Amendments to the LHWCA, Congress increased the benefit levels and sought to return the focus of the Act toward compensation. Accordingly, this Court has stated: "In light of the compensation system available to employees, the breadth of liability should be extremely narrow." In re Allied Towing, supra at 416 F.Supp. 1207, 1209. Moreover, the increased benefits narrowed the cause of action against the vessel, eliminating suits by harbor workers for breach of the duty of seaworthiness and confining the action against the vessel to one for negligence. See Id. at 1208 n. 1. See also H.R.Rep. No. 1441, 92d Cong., 2d Sess., reprinted in [1972] U.S. Code Cong. & Admin.News, pp. 4698, 4703:
Accordingly, the Committee has concluded that, given the improvement in compensation benefits which this bill would provide, it would be fairer to all concerned and fully consistent with the objective of protecting the health and safety of employees who work on board vessels for the liability of vessels as third parties to be predicated on negligence, rather than the no-fault concept of seaworthiness. . . .
[4] The action under § 905(b) appears to be one in rem against the vessel. The term vessel, however, is defined in § 902(21) to include the vessel owner. Therefore, the use of the phrase in § 905(b), "against [the] vessel," evidently does not preclude an in personam action against the vessel owner. G. Gilmore & C. Black, The Law of Admiralty, 450 (2d ed.1975); 1A Benedict on Admiralty § 115 (7th ed.1977). However, whether the action is one in rem or in personam does not present a problem which warrants further consideration in this case at this time.
[5] Plaintiffs have not alleged that the crane operator was serving in any capacity on the barge other than as a crew member. The Court notes, however, that Mr. Fedock was not serving in any of the other capacities covered by the definition of vessel in § 902(21); in particular, he was not the "operator" of the barge, only of the crane on the barge. The facts show that the barge was not self-propelled but was moved to different locations by tug. Therefore, Mr. Fedock could not be the "operator" of the barge itself.
[6] See also Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 210, 83 S.Ct. 1185, 1188, 10 L.Ed.2d 297 (1962), in which the Supreme Court stated that "[t]here is no distinction in admiralty between torts committed by the ship itself and the ship's personnel while operating it . . .."
[7] See note 4 supra.
[8] This Court recognized the two-fold test established by the statute in order for an action to be proscribed because of ship repairer negligence: "First, the injured employee must have been employed for the purpose of repair services. Second, the negligence must have been that of employees engaged in providing repair services." In Re Allied Towing Corp., supra at 416 F.Supp. 1207, 1209. In the present case, the injured employees were clearly employed for the purpose of providing sandblasting repair services to the U.S.S. NASHVILLE. See part II of this Opinion, supra. Therefore, the Court need only further consider whether the crane operator was "engaged in providing repair services."
[9] Application of this test under the LHWCA by the courts has usually been to determine whether an individual is covered by the Act in terms of whether he is an "employee" under the Act and thereby entitled to compensation for his injury. "Employee" is defined in 33 U.S.C. § 902(3):
The term "employee" means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.
By definition, then, the term "employee" under the LHWCA includes a repairman and excludes a crewman. Accordingly, the courts have applied a uniform test, applicable to both the Jones Act and the LHWCA, to determine an individual's status as a harbor worker or a crewman/seaman. See, e. g., Bellomy v. Union Concrete Pipe Co., supra. Although this test is being applied in a different context in this caseto determine a worker's status for purposes of § 905(b)the definition of "employee" in § 902(3) is applicable to § 905(b), and the same and only prevailing test to determine a worker's status is applicable in both contexts.
[10] Under the broad definition of "in navigation," the yard derrick barge in question was "in navigation." See note 2 supra. However, since the crane operator does not meet the other requisites to qualify as a crew member of the barge, the determination of a vessel in navigation is not necessary.
[11] See note 8 supra. Also, plaintiffs received compensation for their injuries under the LHWCA, thereby qualifying as employees under the Act. See note 9 supra and accompanying text for definition of "employee," which includes "a ship repairman," and for the applicable test to determine coverage of the LHWCA. Since the tests to determine status of an individual as a crew member or a repairman are, in effect, the same under both the Jones Act and the LHWCA, the Court resolved the status of the plaintiffs as repairmen in part II of this Opinion, supra.
[12] See note 9 supra.
[13] See note 5 supra.
[14] The statute, 33 U.S.C. § 905(b) uses the language "no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel." (emphasis added).
[15] The House Report states:
Permitting actions against the vessel based on negligence will meet the objective of encouraging safety because the vessel will still be required to exercise the same care as a land-based person in providing a safe place to work. Thus, nothing in this bill is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition.
So, for example, where a longshoreman slips on an oil spill on a vessel's deck and is injured, the proposed amendments to Section 5 would still permit an action against the vessel for negligence. To recover he must establish that: 1) the vessel put the foreign substance on the deck, or knew that it was there, and willfully or negligently failed to remove it; or 2) the foreign substance had been on the deck for such a period of time that it should have been discovered and removed by the vessel in the exercise of reasonable care by the vessel under the circumstances. The vessel will not be chargeable with the negligence of the stevedore or employees of the stevedore.
Under this standard, as adopted by the Committee, there will, of course, be disputes as to whether the vessel was negligent in a particular case. Such issues can only be resolved through the application of accepted principles of tort law and the ordinary process of litigationjust as they are in cases involving alleged negligence by land-based third parties. The Committee intends that on the one hand an employee injured on board a vessel shall be in no less favorable position vis a vis his rights against the vessel as a third party than is an employee who is injured on land, and on the other hand, that the vessel shall not be liable as a third party unless it is proven to have acted or have failed to act in a negligent manner such as would render a land-based third party in nonmaritime pursuits liable under similar circumstances.
. . . . .
The Committee has also recognized the need for special provisions to deal with a case where a longshoreman or ship builder or repairman is employed directly by the vessel. In such case, notwithstanding the fact that the vessel is the employer, the Supreme Court in Reed v. S. S. Yaka, 373 U.S. 410 [83 S.Ct. 1349, 10 L.Ed.2d 448] (1963) and Jackson v. Lykes Bros. Steamship Co., 386 U.S. 731 [87 S.Ct. 1419, 18 L.Ed.2d 488] (1967), held that the unseaworthiness remedy is available to the injured employee. The Committee believes that the rights of an injured longshoreman or ship builder or repairman should not depend on whether he was employed directly by the vessel or by an independent contractor. Accordingly, the bill provides in the case of a longshoreman who is employed directly by the vessel there will be no action for damages if the injury was caused by the negligence of persons engaged in performing longshoring services. Similar provisions are applicable to ship building or repair employees employed directly by the vessel. The Committee's intent is that the same principles should apply in determining liability of the vessel which employs its own longshoremen or ship builders or repairmen as apply when an independent contractor employs such persons.
H.R.Rep. No. 1441, 92d Cong., 2d Sess., reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 4704-05 (footnotes omitted). For a comprehensive review of the history and background of the 1972 Amendments to the LHWCA, see Landon v. Lief Hoegh & Co., 521 F.2d 756 (2d Cir. 1975), cert. denied, 423 U.S. 1053, 96 S.Ct. 783, 46 L.Ed.2d 642 (1976).
[16] See text of H.R.Rep. No. 1441 quoted in note 15 supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2577336/ | 643 F. Supp. 2d 521 (2009)
In re SADIA, S.A. SECURITIES LITIGATION.
No. 08 Civ. 9528(SAS).
United States District Court, S.D. New York.
July 29, 2009.
*522 Curtis Victor Trinko, Esq., Law Offices of Curtis V. Trinko, LLP, New York, NY, Catherine A. Torell, Esq., Cohen, Milstein, Sellers & Toll, P.L.L.C., New York, NY, Lester R. Hooker, Esq., Maya Saxena, Esq., Christopher Steven Jones, Esq., Saxena White P.A., Boca Raton, FL, for Plaintiffs.
Lawrence Steven Hirsh, Esq., Jonathan Dick Siegfried, Esq., John Eric Schreiber, Esq., James P. Smith, III, Esq., Dewey & LeBouef, LLP, New York, NY, John J. Gross, Esq., Christopher L. Nelson, Esq., Katharine M. Ryan, Esq., Barroway Topaz Kessler Meltzer & Check, LLP, Radnor, PA, Joseph E. White, Esq., Milberg, LLP, Boca Raton, FL, for Defendant Sadia, S.A.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
I. INTRODUCTION
Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds, Alan Hyman, Phil Carey, Steve Geist, and Peter Strieker ("Plaintiffs") bring this securities fraud action on behalf of all persons who purchased or otherwise acquired Sadia, S.A. ("Sadia" or "the Company") American Depository Receipts ("ADRs") from April 30, 2008 to September 26, 2008 (the "Class Period") to recover losses that resulted from the purchase of artificially inflated stock. Plaintiffs assert claims pursuant to Section 10(b) of the Securities Exchange Act of 1934, and Rule *523 10b-5 promulgated thereunder, against Sadia and several of its current and former officers.[1] Plaintiffs also assert claims under Section 20(a) of the Act against the Individual Defendants. Sadia now moves to dismiss the Complaint.[2] For the reasons set forth below, Sadia's motion is denied.
II. BACKGROUND[3]
Sadia is a major Brazilian corporation whose primary business is the production and distribution of refrigerated and frozen food products to retailers throughout Latin America, the Middle East, Asia, and Europe.[4] In addition to the Brazilian Sao Paulo Stock Exchange and the Spanish Market for Latin-American Stocks in Euros, Sadia's stock trades as ADRs on the New York Stock Exchange.[5] Like other major exporting companies, Sadia engages in currency hedging to mitigate lost profits when foreign currency paid to it on future sales contracts declines against the value of its native currency before the transactions have been completed.[6] Currency hedging is generally used as a precautionary measure, similar to an insurance policy, to enable exporting companies to reasonably predict the value that they will receive for future sales.[7]
The Complaint alleges that during the Class Period, Sadia entered into currency hedging contracts that were both larger than necessary to insure the Company's losses on future sales and in violation of the Company's internal hedging policy.[8] Plaintiffs contend that Sadia's currency hedging activity was, in reality, a "high risk bet" that carried the Company to the brink of financial ruin when the Brazilian real (R$) depreciated in value against the U.S. dollar.[9] The costs of Sadia's gamble were realized in September 2008, when the real plunged more than twenty percent against the dollar.[10] After the close of trading on September 25, 2008, Sadia announced that it had liquidated various currency hedging contracts, resulting in a loss of approximately R$760 million (U.S. $410 million).[11] Over the next two days, the price of Sadia's ADRs dropped from $15.27 per share to $7.99 per share, as various credit rating agencies downgraded the Company's credit rating.[12] On September 26, Sadia announced that it had fired defendant Adriano Lima Ferreira as its CFO, replacing him with defendant Welson *524 Teixeira.[13] Less than two weeks later, on October 6, 2008, Sadia accepted the resignations of defendants Walter Fontana Filho and Eduardo Fontana d'Avila.[14]
III. LEGAL STANDARD
A. Motion to Dismiss
When reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must "accept as true all of the factual allegations contained in the complaint"[15] and "draw all reasonable inferences in the plaintiff's favor."[16] However, the court need not accord "[l]egal conclusions, deductions or opinions couched as factual allegations ... a presumption of truthfulness."[17]
In deciding a motion to dismiss, the court is not limited to the face of the complaint. The court "may [also] consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference, legally required public disclosure documents filed with the SEC, and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit."[18]
1. Pleading Requirements
"Federal Rule of Civil Procedure 8(a)(2) requires ... `a short and plain statement of the claim showing that the pleader is entitled to relief.'"[19] To survive a 12(b)(6) motion to dismiss, the allegations in the complaint must meet the standard of "plausibility."[20] A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."[21] Plausibility "is not akin to a probability requirement;" rather plausibility requires "more than a sheer possibility that a defendant has acted unlawfully."[22] Pleading a fact that is "merely consistent with a defendant's liability" does not satisfy the plausibility standard.[23]
2. Securities Fraud
"Securities fraud claims are subject to heightened pleading requirements that the plaintiff must meet to survive a motion to dismiss."[24] These heightened pleading requirements are imposed by Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act (the "PSLRA").[25]
*525 a. Rule 9(b)
A complaint alleging securities fraud must satisfy Rule 9(b)'s requirement that "the circumstances constituting fraud ... be stated with particularity."[26] "This pleading constraint serves to provide a defendant with fair notice of a plaintiffs claim, safeguard his reputation from improvident charges of wrongdoing, and protect him against strike suits."[27] To comply with the requirements of Rule 9(b), a plaintiff must: "(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent."[28] "Allegations that are conclusory or unsupported by factual assertions are insufficient."[29]
b. The PSLRA
The PSLRA requires plaintiffs to state with particularity "both the facts constituting the alleged violation, and the facts evidencing scienter, i.e., the defendant's intention to deceive, manipulate, or defraud."[30] The PSLRA specifies that the plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind."[31] When evaluating allegations of scienter, the court must look at the complaint as a whole and "take into account plausible opposing inferences."[32]
"[A]n inference of scienter must be more than merely plausible or reasonableit must be cogent and at least as compelling as any opposing inference of nonfraudulent intent."[33] In other words, a plaintiff must present a "strong inference" of scienter.[34] The inference need not, however, be "irrefutable, i.e., of the `smoking-gun' genre, or even the most plausible of competing inferences."[35] The inquiry on a motion to dismiss is as follows: "When the allegations are accepted as true and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference?"[36] "If the plaintiff alleges a false statement or omission, the PSLRA also requires that `the complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, *526 the complaint shall state with particularity all facts on which that belief is formed.'"[37]
B. Section 10(b) and Rule 10b-5
In order to state a claim under Rule 10b-5 for misrepresentations, a "plaintiff must allege that the defendant (1) made misstatements or omissions of material fact, (2) with scienter, (3) in connection with the purchase or sale of securities, (4) upon which the plaintiff relied, and (5) that the plaintiffs reliance was the proximate cause of its injury."[38] With respect to the first element, the complaint must "state with particularity the specific facts in support of [plaintiffs'] belief that [defendants'] statements were false when made."[39] In situations "[w]here plaintiffs contend defendants had access to contrary facts, they must specifically identify the reports or statements containing this information."[40] Mere "allegations that defendants should have anticipated future events and made certain disclosures earlier than they actually did do not suffice to make out a claim of securities fraud."[41]
Certain statements are protected by the PSLRA's safe harbor provision and the bespeaks caution doctrine. Under the PSLRA's safe harbor provision, forward-looking statements are deemed immaterial and non-actionable when they are accompanied by "meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statements."[42] However, statements are not protected where defendants "had no basis for their optimistic statements and already knew (allegedly) that certain risks had become reality."[43] Similarly, under the judicially created bespeaks caution doctrine, "alleged misrepresentations ... are deemed immaterial as a matter of law [if] it cannot be said that any reasonable investor could consider them important in light of adequate cautionary language...."[44] Under the "truth-on-the-market" doctrine, information already known on the market is also immaterial.[45] Statements may also be deemed immaterial as merely vague expressions of optimism or puffery.[46] Lastly, pleadings *527 based on fraud by hindsight are not actionable as a matter of law.[47]
Scienter can be pled by "alleging facts (1) showing that the defendants had both motive and opportunity to commit the fraud or (2) constituting strong circumstantial evidence of conscious misbehavior or recklessness."[48] "Sufficient motive allegations entail concrete benefits that could be realized by one or more of the false statements and wrongful nondisclosures alleged."[49] "Motives that are generally possessed by most corporate directors and officers do not suffice; instead, plaintiffs must assert a concrete and personal benefit to the individual defendants resulting from the fraud."[50] "To prove liability against a corporation ... a plaintiff must prove that an agent of the corporation committed a culpable act with the requisite scienter, and that the act (and accompanying mental state) are attributable to the corporation."[51]
"Where motive is not apparent, it is still possible to plead scienter by identifying circumstances indicating conscious behavior by the defendant, though the strength of the circumstantial allegations must be correspondingly greater."[52] Under this theory of scienter, a plaintiff must show that the defendant's conduct is "at the least, conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it."[53] "To state a claim based on recklessness, plaintiffs may either specifically allege defendants' knowledge of facts or access to information contradicting defendants' public statements, or allege that defendants failed to check information they had a duty to monitor."[54]
IV. DISCUSSION
A. Actionable Misstatements and Omissions
The Complaint alleges that Sadia's statements and public filings during the Class Period were fraudulent because they: (1) mischaracterized the amount and extent of the Company's exposure under its currency hedging contracts; (2) failed to disclose that Sadia's hedging activity *528 violated the Company's internal hedging policy; (3) misrepresented the existence of adequate controls to prevent excessive hedging; and (4) disguised the Company's true financial condition. Sadia moves to dismiss plaintiffs' section 10(b) and Rule 10b-5 claim on the ground that the Complaint fails to identify any actionable misstatements or omissions concerning Sadia's hedging activity.[55] As Rule 10b-5 requires that plaintiffs plead each alleged misrepresentation or omission with specificity, I address each of plaintiffs' claims in turn.
1. Amount and Extent of Sadia's Exposure Under Its Currency Hedging Contracts
Plaintiffs contend that Sadia misrepresented the amount and extent of the Company's exposure under its currency hedging contracts by repeatedly referring to the contracts as "nominal" in its public filings:
The Company, within its hedge strategy, uses currency futures contracts (U.S. dollars, Euros and Pounds), as a form of mitigating exchange rate risk over operating and financial assets and liabilities. The nominal amounts of these contracts are not recorded in the interim financial information.[56]
As an initial matter, it is axiomatic that the term "nominal" in the context of a financial disclosure refers to the notional amounts of the currency hedging contracts as opposed to their actual value. Accordingly, it is not plausible that a reasonable investor would interpret Sadia's use of "nominal" as meaning negligible or insubstantial. Moreover, to the extent that plaintiffs contend that they were unfamiliar with this usage of "nominal," they should have been able to glean the term's meaning from the context of the sentence in which it was used.
However, this clarification does not dispose of plaintiffs' claim. Plaintiffs also assert that Sadia's public filings mischaracterized the Company's hedging activity as risk-reducing and non-speculative. The financial disclosures that Sadia filed with the SEC on April 30, 2008 and July 31, 2008 each described the Company's hedging activity as a "form of mitigating exchange rate risk."[57] Additionally, the Form 20-F that Sadia filed with the SEC on June 27, 2008 ("Form 20-F"), reporting the Company's results for the 2007 fiscal year, provided:
The financial department has incorporated a Hedging and Investment Policy which was reviewed and approved by the Financial Committee. These policies prohibit speculative trading and oblige the Company to diversify its counterparties. Sadia periodically provides reports to senior management about potential risks and actions taken to mitigate them.
* * *
The foreign currency swap contracts that are entered by the Company are aimed to mitigate potential losses on the Company's external revenues derived from the devaluation of the dollar. The Company does not use swap contracts for trading on speculative purposes.[58]
*529 Finally, plaintiffs argue that Sadia's public filings were materially misleading because the Company's loss of R$760 million "dwarfed the Value at Risk figures that the Company repeatedly disclosed during the Class Period."[59] Plaintiffs note that Sadia's April 6-K reported an estimated VAR of just under R$200 million:
At March 31, 2008, the VAR-Value at Risk for the operational assets and liabilities and financial instruments exposed to exchange rate variations for one year with [ninety-five percent] confidence, amount to R$ 187,711, representing 6.10% of shareholders' equity.[60]
Likewise, the Company's July 6-K reported a VAR of R$241,700, or approximately 7.68 percent of shareholders' equity.[61]
Sadia argues that although its public filings described its currency hedging activity as non-speculative, no reasonable investor would have interpreted these descriptions as implying that the Company's exposure was insubstantial. First, Sadia notes that each of its public filings disclosed the total amount of all of the Company's currency hedging contracts:
As of March 31, 2008 the contracted amounts in force totaled R$3,120,782 (R$2,251,459 on December 31, 2007) and the valuation of these contracts to fair value would result in a gain of R$112,776 (loss of R$63,645 on December 31, 2007), composed by a gain in the amount of R$49,817 accounted for as financial income, and a gain in the amount of R$62,959 as operating income.[62]
Similarly, the Company's July 6-K provided:
As of June 30, 2008 the contracted amounts in force totaled R$6,438,079 (R$3,120,782 as of March 31, 2008) and the valuation of these contracts to fair value would result in a gain of R$208,050 (loss of R$22,766 as of June 30, 2007), composed by a gain in the amount of R$108,406 (loss of R$21,811 as of June 30, 2007) accounted for as financial income, and a gain in the amount of R$99,642 (loss of R$955 on June 30, 2007) as operating income.[63]
Second, Sadia points out that its public filings also reported the Company's interim gains and losses on its currency hedging contracts. Immediately following the paragraph referring to the "nominal amounts" of the Company's currency hedging contracts, Sadia's April 6-K stated:
The realized income of future contracts, for the period ended on March 31, 2008, generated a gain of R$79,794 (R$4,224 for the same period in 2007), represented by [a] gain in the amount of R$30,512 (loss in the amount of R$147 in the same period in 2007) accounted for as financial income in "Monetary Variations Assets," and a gain in the amount of R$49,282 (R$4,371 in the same period of 2007) as operating income in "Gross operating revenue".[64]
Additionally, the Company's July 6-K reported a gain of R$152,263,000 for the six-month period ending June 30, 2008.[65] Sadia *530 argues that based on the amounts of these disclosures, any reasonable investor would have recognized that its currency hedging contracts were a volatile investment, subject to both substantial gains and substantial losses.
Third, Sadia argues that the VAR calculations contained in its public filings were not misleading because each filing explicitly stated that the amounts of the Company's currency hedging contracts were "not recorded in the interim financial information."[66] Sadia notes that both its April 6-K and July 6-K stated that the VAR figures were calculated "for one year with [ninety-five percent] confidence."[67] Accordingly, Sadia asserts that plaintiffs could not have reasonably mistaken these calculations as precise indicators of the Company's vulnerability to market risks.[68]
Notwithstanding Sadia's arguments, I find that plaintiffs have met their pleading burden with respect to Sadia's mischaracterizations of its currency hedging exposure. Sadia repeatedly characterized its currency hedging activity as risk-reducing and non-speculative. These representations were both consistent throughout the Class Period and in line with the common use of currency hedging contracts. While Sadia's public filings disclosed the total amount of all of the Company's currency hedging contracts, these disclosures were neither conspicuous nor in close proximity to the Company's description of the currency hedging contracts as risk-reducing and non-speculative.
Moreover, while Sadia's public filings also disclosed the Company's interim gains and losses on its currency hedging contracts, these figures are essentially meaningless in isolation from the Company's gains and losses on its futures sales contracts. Because the stated purpose of Sadia's currency hedging contracts was to offset potential losses on the Company's future sales contracts, a substantial gain on the Company's currency hedging contracts would not necessarily indicate a substantial profit.[69]
Finally, with respect to the VAR calculations, I am not persuaded that Sadia's disclaimer that "the nominal amounts of [the currency hedging] contracts are not recorded in the interim financial information"[70] was so clear as to eliminate any potential confusion. First, the disclaimer does not specifically state that the amounts of the Company's currency hedging contracts are not reflected in the VAR estimates. Second, the disclaimer neither immediately precedes nor directly follows the VAR calculation in any of the Company's Class Period filings.
Third, I find Sadia's argument that the VAR calculations were not intended to appear to shareholders as precise indicators of the Company's vulnerability to market risks unconvincing. As an initial matter, the only legitimate reason to include these calculations was to provide the Company's shareholders with an accurate picture of Sadia's market vulnerability. Further, because Sadia was aware that the VAR calculations did not reflect the amounts of its currency hedging contractsand that these contracts exposed the Company to substantial riskSadia was presumably also aware that the VAR calculations did *531 not track the Company's exposure to market risks with any considerable degree of certainty. In this light, Sadia's representation that the VAR estimates were calculated with ninety-five percent confidence appears particularly deceptive. Accordingly, it is plausible that a reasonable investor could have been misled by Sadia's characterizations of the Company's exposure under its currency hedging contracts.[71]
2. Compliance with Sadia's Internal Hedging Policy
Plaintiffs also contend that Sadia's public filings were fraudulent because they failed to reveal that the Company had entered into currency hedging contracts in violation of its internal hedging policy.[72] In their brief, plaintiffs attempt to supplement their allegations by drawing upon documentary evidence that was discovered after the filing of the Complaint.[73] However, as plaintiffs concede that they did not rely on these documents in drafting their Complaint,[74] these documents cannot be considered in deciding Sadia's motion to dismiss.[75]
Sadia asserts that its currency hedging contracts were in compliance with the Company's internal hedging policy when it filed its July 6-K on July 31, 2008.[76] Specifically, Sadia cites to a statement made by its investor relations manager ("IRM") during a September 26, 2008 conference call in which the manager assured investors that the Company's "exposure in June... was fully in compliance with the [Company's] finance policy."[77] Sadia's reliance on this statement is misplaced for two reasons. First, the September conference call took place after Sadia had suffered its R$760 million loss and nearly two full months after it had filed its July 6-K. Second, the IRM's statement, at best, raises an issue of fact that cannot be decided at the motion to dismiss stage.
Sadia further argues that even if plaintiffs could establish that it had entered into currency hedging contracts in violation of its internal hedging policy, allegations that a corporation violated its own internal policy "amount to nothing more than a charge that [the company's] business was mismanaged," and therefore cannot form the basis of Rule 10b-5 claim.[78]*532 However, there is considerable authority for the proposition that a company's failure to follow an internal policy can form the basis for an inference of recklessness.[79] Additionally, In re Citigroup, Inc. Securities Litigation, upon which Sadia relies, is distinguishable from the case at bar because Sadia's alleged failure to adhere to Company policy was intended to deceive its own shareholders, not investors in the securities of other companies.[80]
Finally, Sadia asserts that even if it failed to reveal that it had violated its own internal hedging policy, plaintiffs were not misled by this omission because Sadia never publicly disclosed the details of its internal hedging policy.[81] This argument fails for two reasons. First, Sadia's contention that it never publicly disclosed its internal hedging policy is directly contradicted by the Complaint's quotation from a July 31, 2008 conference call, in which a Sadia spokesperson explicitly referenced the Company's internal hedging policy.[82]Second, where, as here, an alleged omission forms the basis of the plaintiffs' claim, plaintiffs are not required to affirmatively plead facts establishing the element of reliance.[83] Accordingly, plaintiffs' allegations regarding Sadia's failure to reveal that it had entered into currency hedging contracts in violation of its internal hedging policy suffice to state a Rule 10b-5 claim.[84]
3. Existence of Adequate Internal Controls
Plaintiffs also claim that Sadia's statements and public filings, including the Sarbanes-Oxley certifications that Sadia filed with the SEC on June 27, 2008, misrepresented the existence of adequate controls to monitor the Company's exposure to exchange rate variations.[85] As a preliminary matter, Sadia asserts that the Sarbanes-Oxley certifications that it filed with the SEC attested to the accuracy of the financial information disclosed in the Company's public filings, not the adequacy of the Company's internal controls for monitoring its currency hedging activity.[86] However, the Sarbanes-Oxley certification cited in the Complaint plainly required Sadia's certifying officers to disclose:
Any fraud, whether or not material, that involves management or other employees who have a significant role in the *533 company's internal control over financial reporting.[87]
Here, the Complaint alleges that Sadia's senior officers knowingly concealed that the Company had entered into substantial high-risk currency hedging contracts in violation of its internal hedging policy.[88] Therefore, to the extent that plaintiffs base their allegations on the representations made in the Sarbanes-Oxley certifications, they have met their pleading burden.
However, plaintiffs' latter claimthat Sadia represented it had adequate controls to monitor its currency hedging activity when it actually did notis belied by the allegations in the Complaint. First, the Complaint alleges that defendants were aware that Sadia's statements and public filings were fraudulent because they "permanently and closely monitored their positions, risk and potential exposure in financial instruments."[89]Second, plaintiffs assert that defendants knew that Sadia was engaged in hedging activity in excess of its internal policy precisely because of the sufficiency of the Company's system for reporting "Out-of-Policy" warnings.[90]Third, plaintiffs unwittingly concede that Sadia had a method in place for monitoring the Company's exposure to market risks by acknowledging that Sadia included VAR calculations in each of its public filings.[91] Therefore, plaintiffs' contention that Sadia misrepresented the existence of adequate internal controls for monitoring the Company's currency hedging activity cannot form the basis of their Rule 10b-5 claim.
4. Sadia's Financial Condition
Finally, plaintiffs claim that Sadia's public statements during the Class Period were fraudulent because they disguised the true financial condition of the Company.[92] Plaintiffs principally rely on press releases issued by Sadia on April 30, 2008 and July 31, 2008 summarizing the contents of the Company's public filings. Plaintiffs contend that both press releases were fraudulent because "they reinforced the notion that Sadia's financial position was strong and that foreign exchange variations were managed in a conservative manner."[93]
Plaintiffs' claim fails for two reasons. First, neither of the press releases cited by plaintiffs states that the Company's currency hedging strategy was conservative. While the April 30, 2008 press release represented that the Company managed its investments "to preserve assets and liabilities on a consolidated basis," this statement is vague and appears to refer to Sadia's entire investment management strategy, not its currency hedging activity in particular.[94]
Second, with respect to plaintiffs' contention that Sadia's press releases overstated the strength of the Company's true financial position, the Complaint does not plead any facts suggesting that these statements were inaccurate at the time they were issued. Even if Sadia consistently misrepresented its exposure under its currency hedging contracts, the Company's relative financial condition was not affected until the Brazilian real began its *534 decline against the dollar in August 2008. Therefore, plaintiffs' contention that Sadia's public statements misrepresented the true financial condition of the Company cannot form the basis of plaintiffs' securities fraud claim.
B. Scienter
Having sufficiently alleged actionable misstatements and material omissions, plaintiffs are still required to "state with particularity facts giving rise to a strong inference that [each] defendant acted with the required state of mind."[95] The Complaint does not allege any facts suggesting that defendants had the motive to commit fraud. Rather, plaintiffs assert that defendants' intent to deceiveor reckless disregard for the truthis demonstrated by substantial circumstantial evidence supporting a strong inference of scienter.[96] Sadia, in turn, argues that the Complaint's allegations of scienter are too conclusory to satisfy the heightened pleading requirements imposed by the PSLRA.
The allegations in the Complaint, taken as true, sufficiently plead that the conduct of Sadia's officers and agents was "highly unreasonable" and "an extreme departure from the standards of ordinary care."[97] The Complaint pleads the following facts as the basis for plaintiffs' allegations of scienter: (1) the statements and omissions that the Company made with reckless, if not knowing, disregard for the truth; (2) the termination of Ferreira;[98] (3) the resignations of Filho and d'Avila;[99] (4) Sadia's IRM's acknowledgment of certain transactions that were "unaligned" with Sadia's hedging policy and approved by the Board of Directors;[100] (5) Furlan's suggestion of a possible "intentional flaw" committed by a senior officer;[101] and (6) the Company's initiation of a Special Audit to investigate possible violations of Brazilian law.[102]
Additionally, the testimony of three confidential witnesses ("CWs") provides a sufficient basis to support the inference that Sadia's officers and agents were aware that Sadia's public filings and statements were misleading as to the extent of the Company's exposure under its currency hedging contracts. According to the Complaint, all three CWs occupied positions within Sadia through which they were privy to the Company's system for monitoring its financial assets and liabilities.[103] CW 1 testified that the Individual Defendants, by virtue of their office, participated in weekly meetings during the Class Period to discuss sales, marketing efforts, and other operational issues.[104] CW 1 further testified that immediately prior to the beginning of the Class Period, Sadia's senior officers significantly curtailed the flow of information regarding the Company's financial activities to lower-level employees.[105] CW 2 testified that Ferreira could not have been Sadia's only senior officer who was aware of the full extent of the Company's currency hedging exposure.[106] CW 2 also testified that despite their involvement *535 in the lead-up to the Company's R$760 million loss, Sadia's senior officers had attempted to pin sole responsibility for the Company's financial failings on Ferreira.[107] Similarly, CW 3 testified that Ferreira did not act alone in directing Sadia's currency hedging scheme.[108]
Finally, the Complaint references an organizational chart, derived from materials that Sadia prepared for an October 30, 2008 conference call, purporting to show the flow of information regarding the Company's currency hedging activity from low level employees to Sadia's senior officers. According to the chart, Sadia's Risk Management Committee received reports detailing the Company's hedging activity on a daily basis.[109] Additionally, the chart indicates that Sadia's Board of Directors was supposed to receive an "Out-of-Policy" warning when the Company's currency hedging activity deviated from its internal hedging policy.[110] Based on the testimony of the confidential witnesses and the information presented in the organizational chart, it is unlikely that Sadia's agents and officers were unaware of the speculative nature of the Company's currency hedging contracts at the time they issued the misstatements.[111]
To prove liability against Sadia, plaintiffs must establish that "an agent of the corporation committed a culpable act with the requisite scienter, and that the act (and accompanying mental state) are attributable to the corporation."[112] As plaintiffs have sufficiently alleged that the agents and officers of Sadia committed culpable acts with the requisite scienter, they have sufficiently pled scienter as to Sadia.
V. CONCLUSION
For the foregoing reasons, Sadia's motion to dismiss is denied. The Clerk of the Court is directed to close this motion (Doc. No. 27). A conference is scheduled for August 19 at 4:30 p.m.
SO ORDERED.
NOTES
[1] The Complaint names the following current and former officers of Sadia as defendants: its chairman, Luiz Fernando Furlan; its chief executive officer, Gilberto Tomazoni; its chief financial officer, Welson Teixeira, Jr.; its former chief financial officer, Adriano Lima Ferreira; its former president and chairman, Walter Fontana Filho; and its former vice chairman, Eduardo Fontana d'Avila (collectively, the "Individual Defendants").
[2] In its brief, Sadia attempts to dismiss the Complaint in its entirety. See Memorandum of Law in Support of Defendant Sadia, S.A.'s Motion to Dismiss ("Def. Mem.") at 1. However, as the Individual Defendants have not filed a motion to dismiss, this Opinion does not address plaintiffs' claims against the Individual Defendants.
[3] The facts are drawn from the Complaint and from documents incorporated by reference in the Complaint and are presumed to be true for the purpose of Sadia's motion.
[4] See Complaint ("Compl.") ¶ 2.
[5] See id. ¶ 16.
[6] See id. ¶ 28.
[7] See id. ¶ 3.
[8] See id. ¶ 31.
[9] See id. ¶ 28.
[10] See id. ¶¶ 31-33.
[11] See id. ¶ 58.
[12] See id. ¶¶ 60, 65, 72.
[13] See id. ¶ 59.
[14] See id. ¶ 66.
[15] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Accord Rescuecom Corp. v. Google Inc., 562 F.3d 123, 127 (2d Cir.2009).
[16] Ofori-Tenkorang v. American Int'l Group, Inc., 460 F.3d 296, 298 (2d Cir.2006).
[17] In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007) (quotation omitted).
[18] ATSI Commc'ns v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007).
[19] Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (quoting Fed.R.Civ.P. 8(a)(2)).
[20] See Twombly, 550 U.S. at 564, 127 S. Ct. 1955. Accord Ashcroft v. Iqbal, ___ U.S. ____, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (noting that Twombly's standard of plausibility is not limited to antitrust cases).
[21] Iqbal, 129 S.Ct. at 1949 (quotation omitted).
[22] Id. (quotation omitted).
[23] Id. (quotation omitted).
[24] ATSI, 493 F.3d at 99.
[25] See 15 U.S.C. § 78u-4(b).
[26] Fed.R.Civ.P. 9(b). Accord ATSI, 493 F.3d at 99.
[27] ATSI, 493 F.3d at 99 (citing Rombach v. Chang, 355 F.3d 164, 171 (2d Cir.2004)).
[28] Rombach, 355 F.3d at 170 (quotation omitted). Accord ATSI, 493 F.3d at 99 (citing Novak v. Kasaks, 216 F.3d 300, 306 (2d Cir. 2000)).
[29] ATSI, 493 F.3d at 99.
[30] Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 313, 127 S. Ct. 2499, 168 L. Ed. 2d 179 (2007) (quotation omitted) (citing 15 U.S.C. § 78u-4(b) (1), (2)). Accord ECA & Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir.2009).
[31] Tellabs, 551 U.S. at 314, 127 S. Ct. 2499 (quoting 15 U.S.C. § 78u-4(b) (2)).
[32] Id. at 323, 127 S. Ct. 2499. These plausible opposing inferences may be based only on the complaint and other public documents on which courts ordinarily rely in deciding a motion to dismiss, "while constantly assuming the plaintiff's allegations to be true." Id. at 322, 326-27, 127 S. Ct. 2499.
[33] Id. at 314, 127 S. Ct. 2499.
[34] ECA, 553 F.3d at 196.
[35] Tellabs, 551 U.S. at 324, 127 S. Ct. 2499 (citation omitted).
[36] Id. at 326, 127 S. Ct. 2499. Accord id. at 324, 127 S. Ct. 2499 ("A complaint will survive... only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.").
[37] ATSI, 493 F.3d at 99 (quoting 15 U.S.C. § 78u-4(b)(1)).
[38] Id. at 105 (affirming the dismissal of plaintiffs' misrepresentations claims) (citing Lentell v. Merrill Lynch & Co., 396 F.3d 161, 172 (2d Cir.2005)).
[39] Rombach, 355 F.3d at 172 (quotation omitted).
[40] Novak, 216 F.3d at 309 (citation omitted).
[41] Id. (citation omitted). Accord Rothman v. Gregor, 220 F.3d 81, 90 (2d Cir.2000) ("The fact that management's optimism about a prosperous future turned out to be unwarranted is not circumstantial evidence of conscious fraudulent behavior or recklessness: People in charge of an enterprise are not required to take a gloomy, fearful or defeatist view of the future; subject to what current data indicates, they can be expected to be confident about their stewardship and the prospects of the business that they manage." (quotations omitted)).
[42] 15 U.S.C. § 78u-5(c)(1)(A).
[43] In re Nortel Networks Corp. Sec. Litig., 238 F. Supp. 2d 613, 629 (S.D.N.Y.2003). Accord Gabriel Capital, L.P. v. NatWest Fin., Inc., 122 F. Supp. 2d 407, 419 (S.D.N.Y.2000) (observing that the bespeaks caution doctrine "does not apply where a defendant knew that its statement was false when made").
[44] Halperin v. eBanker USA.com, Inc., 295 F.3d 352, 357 (2d Cir.2002).
[45] See Ganino v. Citizens Utils. Co., 228 F.3d 154, 159 (2d Cir.2000) ("The truth-on-the-market defense is intensely fact-specific and is rarely an appropriate basis for dismissing a § 10(b) complaint for failure to plead materiality."). See also Lapin v. Goldman Sachs Group, Inc., 506 F. Supp. 2d 221, 238 (S.D.N.Y.2006).
[46] See ECA, 553 F.3d at 206; In re Gildan Activewear, Inc., 636 F. Supp. 2d 261, 274 (S.D.N.Y.2009); In re NTL, Inc. Sec. Litig., 347 F. Supp. 2d 15, 34 (S.D.N.Y.2004).
[47] See Caiafa v. Sea Containers, Ltd., 525 F. Supp. 2d 398, 410-11 (S.D.N.Y.2007).
[48] ATSI, 493 F.3d at 99 (citing Ganino, 228 F.3d at 168-69). Accord In re Scottish Re Group Sec. Litig., 524 F. Supp. 2d 370, 398 (S.D.N.Y.2007) (holding that plaintiffs adequately pleaded scienter because the allegations supported the inference that the company and the officers were at least reckless in not knowing that the financial statements were false and in failing to disclose internal control weaknesses); In re eSpeed, Inc. Sec. Litig., 457 F. Supp. 2d 266, 292 (S.D.N.Y.2006) (holding that plaintiffs must "specifically allege defendants' knowledge of facts or access to information contradicting their public statements").
[49] Kalnit v. Eichler, 264 F.3d 131, 139 (2d Cir.2001) (describing "[insufficient motives" as including "(1) the desire for the corporation to appear profitable and (2) the desire to keep stock prices high to increase officer compensation") (quotations omitted).
[50] Id. Accord ECA, 553 F.3d at 198.
[51] Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital, Inc., 531 F.3d 190, 195 (2d Cir.2008).
[52] Kalnit, 264 F.3d at 142. Accord South Cherry St., LLC v. Hennessee Group LLC, 573 F.3d 98, 109-10 (2d Cir.2009); In re Novagold Res. Inc. Sees. Litig., 629 F. Supp. 2d 272, 297-98 (S.D.N.Y.2009) (quoting ECA, 553 F.3d at 198-99).
[53] South Cherry St., 573 F.3d at 109. (quotation and emphasis omitted). Accord ECA, 553 F.3d at 203.
[54] Gildan Activewear, 636 F.Supp.2d at 272 (citations and quotation marks omitted).
[55] See Def. Mem. at 16-21.
[56] Sadia's Form 6-K filed April 30, 2008 ("April 6-K"), Ex. A to 4/27/09 Declaration of Jonathan D. Siegfried, counsel for Defendant Sadia, S.A. ("Siegfried Decl."), at 48. The entire document is incorporated in the Complaint by reference. See Compl. ¶ 46. See also Sadia's Form 6-K filed July 31, 2008 ("July 6-K"), Ex. C to Siegfried Decl., at 46. The entire document is incorporated in the Complaint by reference. See Compl. ¶ 53.
[57] See id.
[58] Form 20-F, Ex. B to Siegfried Decl., at 89-90 (emphasis added). The entire document is incorporated in the Complaint by reference. See Compl. ¶ 50.
[59] Id. ¶ 59. "Value at Risk" ("VAR") refers to an SEC-recommended formula used by Sadia to assess the total value of its assets subject to market risks at the time of calculation. See id. ¶ 32.
[60] April 6-K at 48. All amounts recorded in Sadia's public filings are stated in thousands of reais (plural of "real").
[61] July 6-K at 46. Amount stated in thousands of reais.
[62] April 6-K at 52.
[63] July 6-K at 50.
[64] April 6-K at 48.
[65] July 6-K at 46.
[66] April 6-K at 48; July 6-K at 46.
[67] Id.
[68] Def. Mem. at 11.
[69] Indeed, a reasonable investor familiar with the practice of currency hedging might well assume that Sadia's substantial gains on its currency hedging contracts meant that the Company had suffered equally substantial losses on its future sales contracts.
[70] April 6-K at 48; July 6-K at 46.
[71] See Lapin, 506 F.Supp.2d at 238 ("[A] complaint fails to state a claim of securities fraud if no reasonable investor could have been misled about the nature of the risk when he invested.") (quotation and emphasis omitted).
[72] See id. ¶ 57.
[73] See Plaintiffs' Memorandum of Law in Opposition to the Motion to Dismiss of Defendant Sadia, S.A. ("Pl.Mem.") at 5-7.
[74] See id. at 5.
[75] See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007) ("In considering a motion under [Rule] 12(b)(6) to dismiss a complaint for failure to state a claim on which relief can be granted, the district court is normally required to look only to the allegations on the face of the complaint. If, on such a motion, matters outside the pleading are presented to and not excluded by the court, the court should normally treat the motion as one for summary judgment pursuant to [Rule] 56.") (quotation omitted). Here, neither party has suggested converting the motion to dismiss into a motion for summary judgment. Additionally, the Court has not provided the parties an opportunity to argue for or against summary judgment.
[76] Def. Mem. at 18.
[77] Transcript of 9/26/08 International Conference Call ("September conference call"), Ex. E to Siegfried Decl., at 5.
[78] Def. Mem. at 19 (citing In re Citigroup, Inc. Sec. Litig., 330 F. Supp. 2d 367, 375 (S.D.N.Y. 2004) ("[t]he securities laws were not designed to provide an umbrella cause of action for the review of management practices")).
[79] See In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 77 (2d Cir.2001) ("[Defendants' asserted actions contrary to expressed policy and prior practice can form the basis for proof of recklessness."); Novak, 216 F.3d at 311 (defendants "knowingly sanctioned procedures that violated the Company's own markdown policy").
[80] See Citigroup, 330 F.Supp.2d at 377 (dismissing a complaint based on plaintiff's failure to allege fraud in connection with the sale of issuer's own securities).
[81] Reply Memorandum of Law in Further Support of Defendant Sadia, S.A.'s Motion to Dismiss ("Def. Reply") at 7.
[82] See Compl. ¶ 56 ("As you know in relation to currency we have historically been very active and we do have a policy where we hedge [one hundred percent] of our net exposure for the three following months and from the third to the [twelfth] month is [fifty percent] and then it is ongoing.").
[83] See Basic Inc. v. Levinson, 485 U.S. 224, 243, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988) ("[W]e previously have dispensed with a requirement of positive proof of reliance, where a duty to disclose material information had been breached, concluding that the necessary nexus between the plaintiffs' injury and the defendant's wrongful conduct had been established.").
[84] Although Sadia raises the issue of transaction causation in passing, it does not appear to challenge the Complaint's pleading of loss causation.
[85] See Compl. ¶ 57.
[86] See Def. Reply at 8.
[87] Compl. ¶ 52.
[88] See id. ¶ 57.
[89] Id. ¶ 84.
[90] See id. ¶¶ 39-41; PI. Mem. at 21-22.
[91] See Compl. ¶ 59.
[92] See id. ¶ 57.
[93] Id. ¶¶ 48, 55.
[94] Id ¶ 48. Sadia's July 31, 2008 press release does contain language that might be reasonably construed as characterizing the Company's asset management strategy as conservative. See id. ¶ 55.
[95] Campo v. Sears Holdings Corp., 635 F. Supp. 2d 323, 332 (S.D.N.Y.2009).
[96] See Compl. ¶ 22.
[97] Kalnit, 264 F.3d at 142.
[98] See Compl. ¶ 59.
[99] See id. ¶ 66.
[100] See id. ¶ 61.
[101] See id. ¶ 71.
[102] See id. ¶ 73.
[103] See id. ¶¶ 38, 43, 44.
[104] See id. ¶ 38.
[105] See id.
[106] See id. ¶ 43.
[107] See id.
[108] See id. ¶ 44.
[109] See id. ¶ 40.
[110] See id.
[111] I note that Sadia has failed to suggest an opposing inference that is more plausible than the strong inference of scienter on the part of the Individual Defendants.
[112] Teamsters, 531 F.3d at 195. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337746/ | 183 S.E.2d 560 (1971)
The TOWN OF STAR CITY
v.
Joseph TROVATO.
No. 12991.
Supreme Court of Appeals of West Virginia.
Submitted September 14, 1971.
Decided October 5, 1971.
*561 Clark B. Frame, Frank J. DePond, Morgantown, for plaintiff in error.
HAYMOND, Judge.
On this writ of error granted by this Court July 14, 1970 upon his application, the defendant, Joseph Trovato, seeks reversal of a final judgment of the Circuit Court of Monongalia County rendered April 16, 1970 by which the court sentenced the defendant to confinement in the jail of Monongalia County for a period of thirty days and imposed a fine of $100.00 and required the defendant to pay the costs assessed against him in the criminal prosecution in which he was convicted.
By warrant issued January 10, 1969 by the Mayor of the municipality of Star City in Monongalia County, West Virginia, the defendant was arrested and charged with permitting land owned by him in Star City to be used unlawfully for a period of more than 48 hours as a location for one or more trailers, without first having received a permit from the municipality. Upon the warrant the defendant was tried and convicted on January 16, 1969 by the Mayor of the municipality and sentenced to thirty days imprisonment in the county jail and to pay a fine of $100.00 and $10.00 costs. The defendant appealed to the Circuit Court of Monongalia County from this judgment and filed the appeal in that court on February 4, 1969. The case was tried in the Circuit Court of Monongalia County upon the appeal of the defendant on February 24, 1970, during the regular January 1970 term of court. The jury returned a verdict of guilty which the court, by order entered March 30, 1970, refused to set aside and award the defendant a new trial; and on April 16, 1970, the court rendered the final judgment of which the defendant complains on this writ of error.
The ordinance of the Town of Star City of the violation of which the defendant was charged and for the violation of which he was tried and sentenced, contained among others, these pertinent provisions:
"SECTION 3: No person owning, leasing or having control of any land within this Town shall rent any part of the same, or permit the same to be used, for a period of time or more than 48 hours, as a location for one or more house trailers without first having applied for and received a permit therefor from the Town of Star City, and complying with the provisions of this ordinance. * * *.
"SECTION 5: The term of any such permit shall be for the fiscal year beginning on the 1st day of July of any year and ending on the 30th day of June of the following year, or the unexpired part of the fiscal year of the Town. * * *. The fee for every trailer to be placed upon any particular lot or parcel of ground from July 1, 1967, and from that date henceforth shall be the sum of Fifteen Dollars ($15.00) per year per trailer.
"SECTION 15: Any person violating any of the provisions of this ordinance shall be guilty of a misdemeanor, and upon conviction thereof before the Judge of the Police Court of this City shall be fined not less than $25.00 or more than $100.00 or be confined in the City Jail for or not to exceed 30 days, or be punished by both fine and imprisonment in the discretion of the Mayor acting as Police Judge."
Upon the trial the defendant offered evidence to show that the provision of the ordinance requiring the payment of a license fee of $15.00 had been declared invalid in a proper proceeding by the Circuit Court of Monongalia County; that the reason for his prosecution was the refusal of defendant to pay the license fee; that the defendant had complied with all other requirements of the ordinance; and that the refusal of the plaintiff to grant his application for a license discriminated against him and favored other persons to whom licenses had been granted. The defendant also moved the court to dismiss the action on the ground that after his appeal had been placed upon the docket of the circuit court three regular terms of court which were fixed by law for April, July and *562 October, during 1969, had been held without a trial of the case and that the failure to try him was not due to any of the causes specified in Section 21, Article 3, Chapter 62, Code, 1931, as amended. The court overruled the motion by order entered February 16, 1970.
The defendant assigns as error calling for reversal of the final judgment of the circuit court the action of the court (1) in refusing to grant the motion of the defendant to dismiss the case because three terms of court had passed without trial of the defendant and with no showing of the exceptions mentioned in the applicable statute; (2) in excluding evidence that the portion of the ordinance requiring the payment of a license fee had been declared to be null and void; (3) in refusing to permit the defendant to introduce evidence showing bias and prejudice of witnesses in behalf of the plaintiff upon the trial; (4) in holding that the sole issue to be determined was whether the defendant had a permit for his trailer without allowing him to show why he did not have such permit; (5) in permitting evidence of the commission of other offenses by the defendant; (6) in permitting improper argument to the jury by the attorney for the plaintiff; and (7) in giving instructions Numbers 1 and 6 offered by the plaintiff upon the trial.
The plaintiff, The Town of Star City, filed no brief and made no appearance in this Court upon this writ of error.
The threshold question for determination is whether the defendant, by virtue of Section 21, Article 3, Chapter 62, Code, 1931, as amended, is entitled to be discharged from prosecution for violation of the ordinance, the offense charged against him in the warrant, because he was not brought to trial for such offense in the circuit court upon his appeal within three regular terms of court after the appeal was docketed for trial in that court and that the failure to try him was not due to any of the causes mentioned in the statute.
Section 21 of the statute, relating to felonies and misdemeanors and appeals from inferior tribunals, provides that: "Every person charged by presentment or indictment with a felony or misdemeanor and remanded to a court of competent jurisdiction for trial, shall be forever discharged from prosecution for the offense, if there be three regular terms of such court, after the presentment is made or the indictment is found against him, without a trial, unless the failure to try him was caused by his insanity; or by the witnesses for the State being enticed or kept away, or prevented from attending by sickness or inevitable accident; or by a continuance granted on the motion of the accused; or by reason of his escaping from jail, or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict; and every person charged with a misdemeanor before a justice of the peace, city police judge, or any other inferior tribunal, and who has therein been found guilty and has appealed his conviction of guilt and sentence to a court of record, shall be forever discharged from further prosecution for the offense set forth in the warrant against him, if after his having appealed such conviction and sentence, there be three regular terms of such court without a trial, unless the failure to try him was for one of the causes hereinabove set forth relating to proceedings on indictment." The purpose of the statute is to assure the defendant a speedy trial and the statute should be liberally construed to accomplish the intended result. State ex rel. Farley v. Kramer, 153 W.Va. 159, 169 S.E.2d 106, certiorari denied, 396 U.S. 986, 90 S. Ct. 482, 24 L. Ed. 2d 451; State ex rel. Smith v. DeBerry, 146 W.Va. 534, 120 S.E.2d 504; Ex parte Hollendsworth v. Godby, 93 W. Va. 543, 117 S.E. 369; Ex parte Bracey, 82 W.Va. 69, 95 S.E. 593.
As heretofore indicated the appeal by the defendant from the judgment of the Mayor was placed upon the docket of the circuit court on February 4, 1969 and the defendant *563 was not brought to trial at the regular April term, the regular July term, or the regular October term 1969, or until the regular January term 1970, which was the fourth regular term after the appeal had been docketed for trial in the circuit court. No order was entered by the court continuing the case on motion of the defendant or for any other reason at any of the three regular terms before the case was tried at the January 1970 term and the record is silent with respect to any reason for delaying the trial until the fourth regular term after the appeal was docketed. In opposition to the motion of the defendant to dismiss the case the plaintiff sought to show by filing an affidavit of its Mayor that the trial of the case was continued from the regular October 1969 term until the regular January 1970 term at the instance of the attorneys for the defendant. The trial court evidently relied upon the affidavit in dismissing the motion of the defendant to dismiss the case. This was error. The record which is silent and indicates that the trial of the case was not delayed or continued at the instance of the defendant, can not be modified or contradicted by affidavit in the case. State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61; Powers v. Trent, 129 W.Va. 427, 40 S.E.2d 837. In State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61, an effort was made to show by entry of an invalid nunc pro tunc order that at the third term after the term at which the defendant had been indicted the case had been continued on motion of the defendants. This the Court refused to permit and said: "The only method by which the right of the State to try these defendants could be preserved was by the entry of an order in term continuing the case on motion of the defendants, which clearly was not done, or upon a showing such as is required by Code, 62-3-21."
As according to the record in this proceeding the April, July and October terms 1969 of the circuit court passed without the case on appeal having been called for trial, any effort of the defendant to obtain a continuance could not be shown by an affidavit or otherwise than by an order of the court. This Court has said in many cases that courts of record can speak only by their record and what does not so appear does not exist in law. State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61; Powers v. Trent, 129 W.Va. 427, 40 S.E.2d 837; State ex rel. Bika v. Ashworth, 128 W.Va. 1, 35 S.E.2d 351; Meyers v. Washington Heights Land Company, 107 W.Va. 632, 149 S.E. 819; Charleston Trust Company v. Todd, 101 W.Va. 31, 131 S.E. 638. In the Powers case this Court said in the opinion: "Nothing which is not a matter of record by law can become matter of record unless ordered to be made so by the judge then holding the court and presiding therein, in whom rests the sole power over the records of the court. Fenn v. Reber (St. Louis Court of Appeals, Mo.), [153 Mo.App. 219,] 132 S.W. 627."
This Court has held in numerous cases that under Section 21, Article 3, Chapter 62, Code, 1931, as amended, which until its amendment in 1959 did not apply to misdemeanors but by that amendment was extended to misdemeanors and to appeals from inferior tribunals, a defendant charged with a felony and remanded to a court of competent jurisdiction for trial, is entitled to be discharged from prosecution for the offense if there be three regular terms of such court after the indictment for such offense is found against him, without a trial, unless the failure to try him is for one or more of the excuses mentioned in the section. State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61: Ex parte Hollendsworth v. Godby, 93 W.Va. 543, 117 S.E. 369; State v. Crawford, 83 W.Va. 556, 98 S.E. 615; Ex parte Bracey, 82 W.Va. 69, 95 S.E. 593; Ex parte Anderson, 81 W.Va. 171, 94 S.E. 31; Ex parte Chalfant, 81 W.Va. 93, 93 S.E. 1032.
In State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61, in which the defendants were tried and convicted upon an indictment for a felony, point 1 of the syllabus states that: "Under Code, 62-3-21, a defendant charged *564 with a felony and remanded to a court of competent jurisdiction for trial, is entitled to be discharged from prosecution for the offense if there be three regular terms of such court after the indictment therefor is found against him, without a trial, unless the failure to try him is caused by one or more of the excuses therefor mentioned in said section, and such failure is not excused by the failure of the court, through inadvertence, to enter, during the last of the three terms aforesaid, an order continuing the case on motion of the defendant."
Under Section 21, Article 3, Chapter 62, Code, 1931, as amended, which since its amendment by Chapter 40, Acts of the Legislature, Regular Session, 1959, applies to misdemeanors and to appeals from inferior tribunals in addition to felonies and expressly provides that every person charged with a misdemeanor before a justice of the peace, city police judge, or other inferior tribunal, and who has therein been found guilty and has appealed his conviction of guilt and sentence to a court of record, shall be forever discharged from further prosecution for the offense set forth in the warrant against him, if after his having appealed such conviction and sentence, there be three regular terms of such court without trial, unless the failure to try him was for one of the causes set forth in the section relating to proceedings on indictment. As there is no showing in the record that the failure to try the defendant was for any of the causes relating to proceedings on indictment the circuit court was without authority to try him upon his appeal and, by virtue of the statute, the defendant is entitled to be discharged from further prosecution for the offense set forth in the warrant issued against him.
Inasmuch as the circuit court, for the foregoing reasons, was without authority to try the defendant for the offense of violating the municipal ordinance as charged in the warrant issued against him, it is unnecessary to consider or determine the other errors assigned by the defendant.
The judgment of the circuit court is reversed, the verdict of the jury is set aside, and this case is remanded to that court with directions to dismiss the warrant upon which the defendant was tried and convicted.
Judgment reversed, verdict set aside and case remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337962/ | 627 S.E.2d 36 (2006)
280 Ga. 275
SHERROD
v.
The STATE.
No. S05A1952.
Supreme Court of Georgia.
February 27, 2006.
*37 Robert Lawrence Persse, Statesboro, for Appellant.
Richard Ashley Mallard, Dist. Atty., W. Scott Brannen, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., for Appellee.
HINES, Justice.
Chrissy Renae Sherrod appeals her conviction for theft by conversion of leased property, asserting that OCGA § 16-8-4(c)(2) is unconstitutional. Finding that OCGA § 16-8-4(c)(2) imposes an unconstitutional mandatory presumption, we reverse.
The State charged Sherrod with theft by conversion of leased property, alleging that she leased a stereo from a "Rentown" store and failed to either pay for or return it. Sherrod moved the trial court to declare OCGA § 16-8-4(c)(2) unconstitutional. The motion was denied. Sherrod was tried without the intervention of a jury, found guilty, and sentenced under the First Offender Act. See OCGA § 42-8-60 et seq. On appeal, she urges that OCGA § 16-8-4(c)(2) contains an unconstitutional mandatory presumption, and that absent the presumption, there is insufficient evidence to sustain her conviction.
OCGA § 16-8-4(c)(2) states:
[a]ny person having any personal property in such person's possession or under such person's control by virtue of a lease or rental agreement who fails to return the personal property within five days . . . after a letter demanding return of the personal property has been mailed to such person . . . at such person's last known address by the owner of the personal property or by the owner's agent shall be presumed to have knowingly converted such personal property to such person's own use in violation of such lease or agreement.
Under OCGA § 16-8-4(a), it is a crime to knowingly convert the property of another to one's own use in violation of a lease agreement. Thus, by proving that the demand letter was properly sent and that the property was not returned within five days, the presumption of OCGA § 16-8-4(c)(2) establishes guilt of the crime of theft by conversion of leased property.
The State has the burden to prove all elements of the charged offense beyond a reasonable doubt, and a mandatory presumption that relieves it of this burden is unconstitutional as it "subvert[s] the presumption of innocence accorded to accused persons and also invade[s] the truth-finding task assigned solely to [the factfinders] in criminal cases." Carella v. California, 491 U.S. 263, 265, 109 S. Ct. 2419, 105 L. Ed. 2d 218 (1989).
In Isaacs v. State, 259 Ga. 717, 735(35)(b), 386 S.E.2d 316 (1989), we distinguished permissive inferences or presumptions from those which are unconstitutionally mandatory: A permissive inference is an evidentiary device that permits, but does not require, the [factfinder] to infer the elemental fact from proof by the prosecutor of the basic fact. By contrast, a mandatory presumption instructs the [factfinder] that it must infer the elemental fact once the state has proved the basic fact. The difference between the two may be found in the presence or absence of "language of command" such as "shall be." An instruction containing a mandatory presumption commands that the [factfinder] reach a particular conclusion, while an instruction couched in terms of an inference merely suggests, but does not command, that the [factfinder] do so.
(Punctuation omitted.) Wallace v. Higgs, 262 Ga. 437, 438, 421 S.E.2d 69 (1992).
Clearly, the statutory presumption in OCGA § 16-8-4(c)(2) is mandatory; if the State proves that the demand letter was sent *38 in accordance with the statute, the defendant "shall be presumed" to have committed the elements of the crime of theft by conversion of leased property. The United States Supreme Court has declared unconstitutional similarly worded statutes regarding theft and embezzlement of leased or rented vehicles. Carella, supra. OCGA § 16-8-4(c)(2) differs in no significant manner from those statutes, and its mandatory presumption is unconstitutional.[1]
Further, the State's presentation of its case relied upon the statutory presumption. The State introduced the demand letter, establishing that the statute was followed, and triggering the presumption. When Sherrod testified, the State cross-examined her by asking: "[s]o you're basically saying that you didn't have any intent ofto do anything wrong in this case. That's your answer to the presumption that we've put forth." And in concluding argument, the State maintained that "the presumption worked in this case to have the answer by the defendant and fact speaks for itself as to how she's answered that presumption."[2]
The unconstitutional language of OCGA § 16-8-4(c)(2) cannot be considered harmless in this case. Such a direction to the factfinder is harmless only if the presumption was applied to an element of the crime that was not at issue in the trial, and if the evidence of guilt was overwhelming. Bridges v. State, 268 Ga. 700, 706(2)(f), 492 S.E.2d 877 (1997). But, the mandatory presumption applied to both the fact of conversion and Sherrod's intent; she was presumed to have knowingly converted the stereo. Nor can it be said that the evidence was overwhelming; there was evidence that Sherrod had shared an apartment with her boyfriend and another roommate, had moved from the apartment after a dispute with her boyfriend, had attempted to retrieve the stereo, but was intimidated into leaving the stereo in the apartment, and that the stereo could not thereafter be located.
However, Sherrod fails in her assertion that, without the operation of the presumption, the State presented insufficient evidence to sustain a conviction. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). To the contrary, the State presented evidence that Sherrod was aware of the requirements of her lease agreement, that she was placed on notice that she had not met those requirements and must return the stereo, and that she nonetheless left the stereo in the care of a former boyfriend who had previously pawned her property after a different romantic dispute. The factfinder could thus infer that she had knowingly converted the stereo to some use of her own, in violation of her lease agreement. OCGA § 16-8-4(a). Consequently, Sherrod may be retried. See Dinning v. State, 267 Ga. 879, 485 S.E.2d 464 (1997).
Judgment reversed.
All the Justices concur.
NOTES
[1] We note that in State v. Russell, 256 Ga. 503, 350 S.E.2d 430 (1986), this Court considered a challenge to OCGA § 16-8-19(b), the predecessor to OCGA § 16-8-4(c)(2), and held it unconstitutional because it created an "impermissible presumption." Although the wording of the current statute is slightly different, it has the same improper effect as the statute addressed in Russell; it mandates the finding of all the elements of the crime when the State proves only certain basic facts.
[2] In pronouncing its decision, the trial court did not refer to the presumption, other than noting that it continued to overrule the motion to declare OCGA § 16-8-4(c)(2) unconstitutional, and stated that the evidence was such that the State carried its burden of proof. Although appellate decisions addressing mandatory presumptions typically address the role of the jury, see Carella v. California, 491 U.S. 263, 267, 109 S. Ct. 2419, supra (Scalia, J., concurring), we conclude that the trial court, as fact-finder, applied the presumption in this case; the trial court pronounced Sherrod guilty immediately after restating its ruling that the mandatory presumption was constitutional, and the court thus considered itself bound by the mandatory language in OCGA § 16-8-4(c)(2). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263828/ | 479 F.Supp. 481 (1979)
Helen ANDREWS, Plaintiff,
v.
ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Defendant.
Civ. A. No. 79-70563.
United States District Court, E. D. Michigan, S. D.
October 31, 1979.
*482 P. Robert Shrauger, Shrauger & Dunn, Detroit, Mich., for plaintiff.
John E. McSorley, Garan, Lucow, Miller, Seward, Cooper & Becker, Detroit, Mich., for defendant.
MEMORANDUM OPINION AND ORDER
JOINER, District Judge.
Defendant Allstate Insurance Company filed motions for summary judgment or partial summary judgment pursuant to F.R. C.P. 56. A hearing was held on August 28, 1979, at which time defendant withdrew its motion for summary judgment. The case is now before the court on defendant's motion for partial summary judgment.
Basing its motion on the Michigan No-Fault Act's limitation of actions provision, M.C.L.A. § 500.3145, defendant seeks a ruling that plaintiff is by law limited in any possible recovery to those losses or expenses incurred within one year of the date this action was commenced. Because the record contains insufficient information as to the dates of certain events essential to a determination of this issue, defendant's motion is denied. An explanation follows.
The no-fault statute of limitations, M.C. L.A. § 500.3145, provides that where notice of the injury has been given by the insured, or payment made by the insurer, as was done in this case,
the action may be commenced at any time within 1 year after the most recently allowable expense, work loss or survivor's loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.
Such a clear statute invites a mechanical application of the law to the facts and a quick resolution of a limitations issue. This case, however, is one complicated by two separate tolling issues, both of which require additional information to enable the court to determine the allowable period of recovery. Because the sequence of events in this case is crucial to the court's reasoning, a detailed summary of the facts follows.
*483 On June 12, 1976, plaintiff-insured was involved in a car accident in which she sustained personal injuries. Defendant Allstate was the insurer under a personal injury benefit policy then in effect. Plaintiff acknowledges that payments were made to her under the policy for losses incurred in this accident, although the dates of claims and payments do not appear in the record.
On January 30, 1977, plaintiff sustained injuries as a result of a fall. (Defendant reports that this fall occurred on January 17.) Plaintiff alleges that although defendant has paid a portion of the benefits she claims are due her, defendant has refused to pay other expenses, primarily those falling on or after January 30, 1977.
Plaintiff filed suit against Allstate for benefits allegedly due her in Macomb County Circuit Court on February 15, 1978. Service was made on Allstate on September 21, 1978; however, because service followed the date of filing of the complaint by more than 180 days, the complaint was dismissed on September 28, 1978, pursuant to Michigan General Court Rule 102.5.[1] After the dismissal of the suit but before defendant was aware of the dismissal, defendant removed the "case" to this court. The removed case was subsequently dismissed by this court on November 30, 1978, for the reason that a case that has been dismissed is no longer a case and thus cannot be removed. Plaintiff moved to set aside the original dismissal in Macomb County Circuit Court, and this motion was denied on February 2, 1979.
Plaintiff commenced a new action against Allstate on January 31, 1979. The case was removed to this court, and it is in this case that defendant's motion for partial summary judgment is made.
In applying M.C.L.A. § 500.3145 to the facts of this case, it is necessary to examine Michigan's law on the tolling of statutes of limitation.[2] An examination of the law in this area reveals that certain facts not currently in the record are essential to a determination of the time period during which the statute did not run against plaintiff.
There are two distinct factors or events which could operate to toll the statute of limitations in this case. The first concerns the first suit filed by plaintiff and dismissed for lack of timely service pursuant to Michigan's G.C.R. 102.5, and the tolling effect this first suit has on the time period for which damages may be claimed. The second factor involves the effect of a failure to deny liability following notice of loss under the no-fault act on the period within which claims may be recovered under M.C. L.A. § 500.3145.
Effect of Earlier Suit
As an initial matter, the Michigan Supreme Court has held that where a suit is *484 commenced within the time period prescribed by the statute of limitations, there is no tolling issue involved. In a recent case, the Supreme Court held that under Michigan's G.C.R. 101,[3] a suit is commenced upon the filing of a complaint for the purposes of statutes of limitations. Buscaino v. Rhodes, 385 Mich. 474, 189 N.W.2d 202 (1971). In Buscaino, the plaintiffs filed their complaint six days prior to the expiration of the statute of limitations, but service was not made within that six day period. The court held that the action was not barred by the statute because the suit was timely commenced. Defendants in Buscaino argued, based on Michigan's general tolling statute, M.C.L.A. § 600.5856,[4] that the action was barred because the statute of limitations was not tolled until they were served. The court rejected this argument, stating:
"To toll the statute of limitations means to show facts which remove its bar of the action." Black's Law Dictionary (4th ed), p. 1658.
Since there can be no question of "removing" the bar of the statute of limitations unless and until, in the absence of tolling the statute would have barred the action, there can be no issue of "tolling" in any case where the action is commenced within the statutory period of limitation. Buscaino, supra, at 481, 189 N.W.2d at 205.
Thus, applying General Court Rule 101, the court held that where an action is commenced by filing a complaint within the statutory period, the suit is not barred and no tolling issue is presented. Until recently, this was the rule regardless of whether the defendant was served within 180 days of filing the complaint as prescribed by G.C.R. 102.5 and 102.4,[5] which states that a summons is valid for only 180 days following the filing of the complaint. Goniwicha v. Harkai, 393 Mich. 255, 224 N.W.2d 284 (1974); Brashers v. Jefferson, 402 Mich. 399, 263 N.W.2d 243 (1978).
According to Buscaino, a tolling issue is presented, and thus M.C.L.A. § 600.5856 is applicable, only where a prior suit between the parties was dismissed on some ground other than the merits.
M.C.L.A. § 600.5856 . . . deals only with prior lawsuits between the parties which have not adjudicated the merits of the action. Buscaino, supra, 385 Mich. at 482, 189 N.W.2d at 205.
That the applicability of M.C.L.A. § 600.5856 is limited to those instances in which a new, different suit follows the dismissal of an earlier action between the parties is further illustrated by Goniwicha v. Harkai, supra. In Goniwicha, the action commenced by plaintiff was dismissed for lack of progress, but was reinstated approximately one month later. Because this was the same action which was commenced *485 within the statutory period of limitations, the court followed Buscaino and held that the action was not barred.
It is clear, therefore, that because this case presents an instance where there are two different suits between the parties, a tolling issue is presented. To determine the length of time during which the statute of limitations was tolled during the pendency of the first suit, it is necessary to apply the provisions of M.C.L.A. § 600.5856 to the facts of this case.
M.C.L.A. § 600.5856 provides that statutes of limitations are tolled when
(1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when
(2) jurisdiction over the defendant is otherwise acquired, or when
(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.
Thus, when considering the statute of limitations as to a second suit, which was separately commenced and not a reinstatement of a prior suit, the statute of limitations is not tolled by the filing of the complaint in the earlier suit, but by service of the summons and complaint. Service must occur within the statutory period unless copies of the summons and complaint are placed in the hands of an officer for service within the statute of limitations period and service does not occur within the statute of limitations period. In such a case, the statute is tolled for 90 days following delivery of the summons and complaint to the officer. Thus, plaintiff has an additional 90 days from the date of delivery to the officer to effect service on the defendant.
Applying this reasoning to the facts of this case, it is clear that the no-fault statute of limitations can be tolled for a maximum of 97 days (seven days under subsection (1) of the statute and 90 days under subsection (3) of the statute.) The record does not reflect whether plaintiff placed a copy of the complaint and summons in the hands of an officer for immediate service. If plaintiff was remiss in this regard, the statute was tolled for only 7 days, from the date of service, September 21, 1978, to the date of dismissal, September 28, 1978.
Under the no-fault limitations provision, M.C.L.A. § 500.3145, it is clear that plaintiff is entitled to recover allowable expenses and losses which were incurred on or after January 31, 1978, as the statute allows recovery of only those losses and expenses incurred within one year of the date an action is commenced, and this action was commenced on January 31, 1979. Michigan G.C.R. 101. Under M.C.L.A. § 600.5856(1), the statute of limitations was tolled for seven days (date of service until date of dismissal). This increases the allowable period of recovery to one year and seven days. Plaintiff is thus entitled to recover those allowable losses and expenses incurred on or after January 24, 1978. If plaintiff complied with M.C.L.A. § 600.5856(3), the allowable period of recovery is increased by an additional 90 days, thus pushing the date of recovery back to October 25, 1977. In order to determine which allowable expenses and losses are recoverable under the statute of limitations, therefore, it is essential to know whether the condition of M.C.L.A. § 600.5856(3) was met by plaintiff.
Effect of Failure to Deny Claims Made
In addition to the tolling provisions of M.C.L.A. § 600.5856 discussed above, another distinct tolling rule may apply in this case. In Richards v. American Fellowship Insurance Co., 84 Mich.App. 629, 270 N.W.2d 670 (1978), leave to appeal denied, the Michigan Court of Appeals held that the no-fault statute of limitations, M.C.L.A. § 500.3145, is tolled from the date a claimant gives notice of loss until the date of formal denial of liability by the insurer.
In Richards, the plaintiff made a timely request for payment which was not denied until nearly one year later. Suit was commenced more than one year after plaintiff's most recent allowable expense was incurred. The court held that the no-fault statute of limitations was tolled from the *486 date the plaintiff gave notice of the loss until the date on which the insurer denied liability, and thus plaintiff was not barred from recovering expenses incurred more than one year prior to the commencement of the action. Under Richards, therefore, the permissible period of recovery under M.C.L.A. § 500.3145 is one year plus whatever amount of time a claim was pending before a formal denial of liability was made by the insurer. This construction of M.C. L.A. § 500.3145, according to the Richards court, furthers the legislative purpose of prompt and adequate compensation of no-fault claims while preventing insurers from profiting from delays in processing and assessing claims. Richards, supra, at 634-35, 270 N.W.2d 670.
Although the Richards construction of M.C.L.A. § 500.3145 governs this case, the record contains insufficient information to determine what effect Richards has on plaintiff's period of recovery. To determine the length of time, if any, the statute of limitations was tolled in this case, the dates of plaintiff's notice of loss as evidenced by the requests for payment and defendant's actions that could be construed as being a denial of liability must be made known to the court.
In summary, it is clear that plaintiff is entitled to recover allowable expenses and losses which were incurred on or after January 24, 1978. Whether the period of recovery is greater depends on whether plaintiff met the conditions of M.C.L.A. § 600.5856(3) and on the dates of notice of loss as evidenced by the requests for payment and the actions of the defendant claimed to be a denial of liability. Until this information is made known to the court, the allowable period of recovery cannot be computed.
Defendant's motion is denied.
So ordered.
NOTES
[1] In 1978, Michigan General Court Rule 102.5 read:
Dismissal of Action, Defendants Not Served. Every action shall be dismissed, without prejudice, as to any defendant in the action who has not been served with process personally, by substituted service or by publication within 180 days from the date of the filing of the first complaint in the action with the court unless that defendant has filed any pleading in the action within that period of time, in which event, the action shall not be dismissed as to that defendant.
(1) Upon the expiration of 180 days from the date of the filing of the first complaint in the action with the court, the clerk of the court in which the complaint was filed shall examine the court records in the action and, if he determines that any defendant in the action has not been served with process within that period of time, he shall automatically enter an order of dismissal as to that defendant as provided above. This sub-rule shall not apply if that defendant has filed any pleading in the action within that period of time.
(2) Notice of the entry of the order of dismissal shall be given by the clerk of the court as provided by rule 107 but failure to give such notice shall not affect the dismissal.
[2] Although statutes of limitations and tolling provisions are arguably procedural rules, the Michigan provisions in this area must be applied by this court. As will be seen below, the resolution of the limitations and tolling provisions is outcome determinative of this action, and the provisions are an integral part of the no-fault remedies fashioned by the Michigan legislature. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1949); Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949); Sylvester v. Messler, 351 F.2d 472 (6th Cir. 1965), cert. denied 382 U.S. 1011, 86 S.Ct. 619, 15 L.Ed.2d 526 (1966).
[3] Michigan General Court Rule 101 provides: A civil action is commenced by filing a complaint with the court.
[4] M.C.L.A. § 600.5856 is quoted on page 485 of this Opinion.
[5] Michigan General Court Rule 102.4 (1972) provided:
Expiration. No summons shall be valid for longer than 180 days from the date of the filing of the complaint with the court. Duplicate summons shall not have the effect of extending the expiration of the original summons.
The Michigan Supreme Court has held that the dismissal provision of G.C.R. 102.5(1) (1972) was not one which resulted in automatic dismissal upon the expiration of 180 days after the date of filing the complaint. Brashers, supra. In April of 1979, the amendments to G.C.R. 102.5 went into effect, and dismissal upon the expiration of 180 days is now automatic. In view of the Brashers opinion and the amendments to G.C.R. 102.5, the correctness of the earlier denial of plaintiff's motion to set aside the dismissal in Macomb County Circuit Court is in doubt. While Brashers would seem to hold that the denial was in error, a question remains as to whether the amendments to G.C.R. 102.5 will be given retroactive effect. This court does not intend to prescribe the best course of conduct for plaintiff, nor rule as to the availability of any relief in the Michigan court. However, if Brashers governs the earlier dismissal which preceded the 1979 amendments to G.C.R. 102.5, and if review of the denial of plaintiff's motion to set aside the dismissal and reinstatement of the first suit is available, it would appear that the statute would then be tolled from February 15, 1978 to the present. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263836/ | 479 F.Supp. 413 (1979)
UNITED STEELWORKERS OF AMERICA, AFL-CIO, Plaintiff,
v.
MUELLER BRASS CO., Defendant.
No. EC 78-39-S.
United States District Court, N. D. Mississippi, E. D.
October 25, 1979.
*414 George C. Longshore, Cooper, Mitch & Crawford, Birmingham, Ala., Michael H. Steele, Crawley & Ford, Kosciusko, Miss., for plaintiff.
Fred M. Bush, Jr., Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, Miss., for defendant.
MEMORANDUM OF DECISION
ORMA R. SMITH, District Judge.
This action is before the court upon cross motions for summary judgment. The issue to be decided has narrowed considerably since the court's previous opinion in this action.[1] The plaintiff, the United Steelworkers of America, AFL-CIO, seeks to enforce an award of a Board of Arbitration, pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976).[2] The dispute which was submitted to arbitration concerned the interpretation of that portion of the collective bargaining agreement which dealt with vacations and vacation pay, and the method of determining eligibility for vacation benefits. The arbitration board sustained the grievances in question, holding that:
All employees possessing a minimum of three years of service on January 1, 1975, are entitled to a payment for a total of two weeks' vacation for 1975, and all employees possessing a minimum of three years of service on January 1, 1976, are entitled to a payment for a total of two weeks' vacation for 1976.
*415 According to the language of the collective bargaining agreement, each employee entitled to the benefits as described above, was to be paid the equivalent of four percent (4%) of his total wages. The dispute over the language of the arbitration award arose when the company alleged that it had fully complied with the mandate of the arbitration panel. The union, on the other hand, argued that the award was to apply prospectively to all employees, and also that vacation benefits were to be determined according to the date on which an employee was hired, rather than January 1 of any given year.
Because of these ambiguities in the arbitration award, the court remanded the award to the arbitration panel for a clarification. The court also ordered that after the arbitration award had been clarified and resubmitted, the parties should file an appropriate motion, seeking to enforce the award as a final judgment. On March 30, 1979, the court received a letter from counsel for defendant, which included a copy of the amended arbitration award. This award contained the same language as the original award, but was amended to include the following sentence:
This same procedure for determining vacation benefits shall remain applicable for the duration of the current Labor Agreement between those parties.
The court then ordered the parties to file appropriate motions, as previously directed.[3] On June 15, 1979, the plaintiff submitted a brief in support of its motion for summary judgment following the clarification of the award. The motion for summary judgment was filed on June 27, 1979. The defendant also filed a motion for summary judgment, on June 23, 1979.
Plaintiff maintains that the January 1 deadline acts as a starting point rather than a cutoff point, and that those employees who were hired between January 1, 1972, and June 30, 1972, are entitled to the same vacation pay as those with three years of service as of January 1, 1975. That is, those employees who eventually achieved three years of seniority during the first half of 1975 are included within the arbitration award. This position, according to the plaintiff, is supported by the language of the employee handbook, which states:
An employee hired between July 1 and December 31 (inclusive) of any year will become eligible for vacation on January 1 of each year.
An employee hired between January 1 and June 30 of any year will become eligible for vacation on July 1 of each year.
Thus, the eligibility of any employee for vacation time is governed by whether the employee was hired in the first half or the second half of the year. According to the Labor Agreement and the employee handbook, after 12 months of service an employee was entitled to one week of vacation time; after 36 months an employee was entitled to two weeks of vacation time. It is the plaintiff's position that those who were eligible for two weeks of vacation time as of January 1, 1975, are also eligible for vacation pay in the amount of 4% of their gross pay, regardless of whether or not they had achieved three years of service as of January 1, 1975. Since these employees would be eligible for vacation time beginning on July 1, 1975, the union argues that these employees are entitled to have their vacation pay determined at the earliest date prior to that time, which would be January 1, 1975.
The defendant argues that the arbitration award clearly states which employees are entitled to relief. In support of its motion for summary judgment, the defendant has submitted the affidavit of Joe Randall Boyd, who is the Industrial Relations Manager for the defendant's Fulton, Mississippi, plant. Mr. Boyd states that the company has complied with the mandate of the award "by issuing additional vacation checks in the amount of two percent (2%) of *416 the 1974 W-2 earnings for all employees who had completed a minimum of three (3) years of service as of January 1, 1975, and who had previously received only two (2%) of their 1974 W-2 earnings." It states further that those employees who had completed three years of service as of January 1, 1976, 1977 and 1978, have been paid on a similar basis.
As both sides have argued in their memoranda, arbitration awards which contain ambiguities should be clarified by the arbitrators themselves, and not by the court. See, e. g., San Antonio Newspaper Guild, Local No. 25 v. San Antonio Light Division, 481 F.2d 821, 825 (5th Cir. 1972). Were an ambiguity to exist in the arbitrator's award, even after it had been remanded for clarification once, this court would be under a duty to remand the award for further clarification. San Antonio Newspaper Guild, supra. As the Fifth Circuit observed in that case, however, "an appropriate resolution of this already too-lengthy dispute would in no way be served by remanding to [the arbitrator] for yet another interpretation of his original award." 481 F.2d at 825-26. This case is now before the court for resolution of the summary judgment motions, and in accordance with Rule 56, Fed.R.Civ.P., the court must examine the pleadings and affidavits to determine if there are genuine issues of material fact.
The defendant has submitted in support of its motion, the affidavit of Joe Randall Boyd. As previously stated, this affidavit clearly states that the defendant has issued additional checks to those employees affected by the arbitration award. In responding to these allegations, the plaintiff does not present any evidentiary matter for the court's consideration. Rather, the plaintiff has chosen to argue the merits of the arbitration award, and point out the ambiguities which allegedly still exist.
It is important to remember, however, that in a motion for summary judgment, a party is expected to go beyond the pleadings. The importance of doing so is emphasized in the last two sentences of Rule 56(e):
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Defendant's affidavit couched in the same language as the arbitration award, states that the mandate of the award has been implemented. The language of that award clearly states to whom it should be applied, and the defendant has complied. The court does not believe that it should read into the arbitration award language which is non-existent so as to create an ambiguity which is not there.
When an arbitration award is at issue, the district court does not sit as an appellate court or a court of review, to decide the merits of the grievance or the correctness of the award. If the question is one which was properly submitted to arbitration, and if the arbitrator's award is based upon an interpretation of the collective bargaining agreement, the court should enforce the award. Walters v. Roadway Express, Inc., 400 F.Supp. 6 (S.D.Miss.1975); Proctor & Gamble Mfg. Co. v. Independent Oil and Chemical Workers, 386 F.Supp. 213 (D.Md.1974). The award in the instant case is plainly based upon the interpretation of the collective bargaining agreement. This court cannot reinterpret either the contract or the arbitration award, in a search for latent ambiguities. On the basis of the mandate of the arbitration award, and the defendant's affidavit that it has complied with that mandate, the court finds that there is no genuine issue of material fact, and that the defendant is entitled to a judgment as a matter of law. An appropriate order will be entered.
NOTES
[1] The court's order of October 5, 1978, denied the plaintiff's and defendant's motion for summary judgment, and remanded the arbitration award which is the subject of this action to the Board of Arbitration for a clarification.
[2] 29 U.S.C. § 185 provides in pertinent part:
(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
The present dispute arose between the plaintiff's Local Union No. 8420 and the defendant at its plant in Fulton, Mississippi. The court therefore has jurisdiction of this action pursuant to § 301.
[3] The court was later informed by counsel that a dispute existed concerning the application of the amended award which should be submitted to the court. The parties were then given until June 14, 1979, to file appropriate motions or other pleadings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263684/ | 461 Pa. 407 (1975)
336 A.2d 603
COMMONWEALTH of Pennsylvania
v.
Tony WHITAKER, Appellant.
Supreme Court of Pennsylvania.
Argued April 18, 1974.
Decided March 18, 1975.
*408 *409 Allan M. Tabas, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Jr., Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., John H. Isom, Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
POMEROY, Justice.
After a trial by jury, Tony Whitaker, the appellant, was found guilty of murder in the second degree in connection with the fatal stabbing of one Benjamin Simmons. Post-trial motions were denied, and appellant was sentenced to imprisonment of not less than seven nor more than twenty years. This appeal centers on the admissiblity of two statements which appellant had made to the police and which constituted, substantially, the only evidence presented by the Commonwealth at trial. We conclude that, because of the illegality of appellant's original arrest, the admission of the statements was constitutional error, and therefore reverse.
On August 31, 1972, Simmons was found stabbed to death on South 59th Street in Philadelphia. After several months of fruitless investigation the police learned through questioning members of various street gangs that "Pops" Barton and a person named Tony, two members of the Master Street Moon Gang, had been "involved" in the incident. At approximately noon on November 22, 1972, Tony Whitaker, then seventeen years *410 old, was taken into custody by a Detective Ross and another detective and transported to the Police Administration Building for questioning. There he was given Miranda warnings and he signed a written waiver of his constitutional rights. In the course of the ensuing interview, appellant gave an oral statement in which he admitted that on August 31st he had accompanied John "Pops" Barton, whom he knew to be armed with a butcher knife, to the "turf" of a rival gang on South 59th Street. There Whitaker and Barton walked on separate sides of the street. Appellant heard Barton yell "58th Street" (an apparent reference to a member of the 58th Street gang), and turned to see Barton stabbing a man. Whitaker denied having participated in the assault and stated that he had immediately run from the scene. At 10:00 p.m. Whitaker's mother arrived at the station and in her presence the substance of the oral statement was reduced to writing. After signing this statement, appellant was released from custody.
Two days later, on November 24, 1972, acting upon the information provided by Whitaker, the police arrested Barton. Barton made a full confession in which he stated that Whitaker had participated in the attack by beating the victim, Benjamin Simmons, with his fists. Possessed of this additional information, the police went to appellant's home on November 27, 1972 and, with Whitaker's consent, took him to the Police Administration Building for further questioning. There Detective Grose informed Whitaker that Barton had been arrested and had given a statement accusing appellant of striking Simmons several times before Barton had used the knife. Whitaker was then again advised of his constitutional rights and again waived them in writing. He quickly then admitted, first orally and later in writing, that the events had occurred as Barton had described. After signing the written statement, appellant was formally placed under arrest.
*411 A motion was made to suppress Whitaker's two oral and two written statements. At the suppression hearing Detective Ross testified that at the time Whitaker was first apprehended on November 22 the police had no information that he had committed a crime; they had merely "picked up" Whitaker for questioning. The suppression judge found that the detention of appellant on November 22 constituted an arrest, and that the arrest was unlawful as without probable cause. He further held that the two statements made on that day were gained through exploitation of the illegal arrest and were, therefore inadmissible as "fruit of the poisonous tree." A contrary result was reached, however, as to the two statements made on the 27th. The court reasoned that although the taking of Whitaker into custody on that day amounted to an arrest, probable cause for it was supplied by the confession of Barton, and the later statements were, therefore, untainted. It is this latter determination which appellant challenges today.
We note, preliminarily, that the Commonwealth, having prevailed as to the admissibility of the statements made on November 27, had no occasion to challenge the findings of the suppression judge with respect to Whitaker's arrest and statements of November 22. Without belaboring the point, we think the record amply sustains these determinations. The Commonwealth does not dispute that the detention to which Whitaker was subjected on that day twelve hours of intermittent interrogation constituted an arrest. See Commonwealth v. Bishop, 425 Pa. 175, 181, 228 A.2d 661, 665 (1967). Neither does it argue that the arrest was valid. The police had no information about Tony Whitaker; they had merely learned, months previously, that a person known as "Tony" had been "involved" in the episode in which Simmons was killed. This may be thought to cast suspicion upon anyone in the vicinity going by that name, but mere suspicion is insufficient to support any arrest, with or *412 without a warrant. See Henry v. United States, 361 U. S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134, 137 (1959); Conner v. Commonwealth, 3 Bin. 38, Pa. (1810). The suppression court was also correct in concluding that the statements which appellant gave during the interrogation of November 22 stemmed directly and immediately from the illegal arrest and were impermissibly tainted by it. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1965); Commonwealth v. Daniels, 455 Pa. 552, 558, 317 A.2d 237, 240 (1974); Betrand Appeal, 451 Pa. 381, 389-91, 303 A.2d 486, 491 (1973).[1] See and compare Commonwealth v. Mitchell, 445 Pa. 461, 466, 285 A.2d 93, 96 (1971); Commonwealth v. Marabel, 445 Pa. 435, 449, 283 A.2d 285, 292 (1971); Commonwealth v. Bishop, supra; Commonwealth ex rel. Craig v. Maroney, 348 F.2d 22, 29 (3rd Cir. 1965), cert. denied 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966); Leonard v. United States, 391 F.2d 537 (9th Cir. 1968).
Accepting, therefore, as we do the premise that the statements given by appellant on the 22nd were fruits of an unlawful arrest made on that day, we proceed to consider his claim that the statements of the 27th were also tainted by that same unconstitutional arrest.
In its well-known decision in Wong Sun v. United States, supra, the Supreme Court of the United States restated the principle that the exclusionary rule which prohibits the use of evidence obtained from an accused in violation of the Fourth or Fifth Amendments prohibits also the indirect use of such evidence. On the question as to what evidence must be considered as obtained as a direct result of an unlawful invasion, and so excluded, the Court said, in a frequently quoted passage: "We need not hold that all evidence is `fruit of the poisonous *413 tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is `whether, granting the establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Wong Sun, supra, 371 U.S. at 487-88, 83 S.Ct. at 417, 9 L.Ed.2d at 455, quoting Maguire, Evidence of Guilt (1959). See also Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33.
Whether challenged evidence has been sufficiently purged of an impermissible taint, here the clearly unlawful arrest, to render it admissible must be determined from the totality of the circumstances surrounding each particular case, Commonwealth v. Marabel, supra; Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968); the burden of proof rests with the Commonwealth. Betrand Appeal, supra, 451 Pa. at 389, 303 A.2d at 490; Commonwealth v. Bishop, supra. See also Harrison v. United States, 392 U.S. 219, 225, 88 S.Ct. 2008, 2011, 20 L.Ed.2d 1047, 1053 (1968).
In virtually all of the "fruit of the poisonous tree" cases which this Court has considered, there have existed only two links in the alleged causal chain, i.e., the initial illegality and the challenged physical or verbal evidence resulting therefrom. In the present case the progression is more complex, but the fact that there are several links and a five-day time span in this chain of events is not significant; what is of critical importance for constitutional purposes is that there exists a real and direct causal connection between appellant's unlawful arrest on November 22 and his ultimate confession on November 27. As the Commonwealth acknowledges in its brief, "[a]s a result of appellant's initial statements on November 22, 1972, the police arrested John Barton, and on November 24, 1972, he [Barton] confessed to the *414 murder and implicated Tony Whitaker, appellant, as a participant in the crime. . . . As a result of this information, appellant was arrested and on November 27, 1972 confessed his participation in the crime." (Commonwealth's brief, p. 6; emphasis added). Again it is said, "[o]n the strength of this evidence [i.e. Barton's statement that Whitaker had taken part in the murder], appellant was arrested anew on November 27th, and after being confronted with Barton's accusation, confessed his participation in the stabbing." (Commonwealth's brief, p. 8; emphasis added).
The Commonwealth contends that our decision in Commonwealth v. Garvin, supra, indicates a contrary result. It is argued that because the police knew the identity of Barton before appellant's unlawful arrest, it cannot be assumed that, absent appellant's incrimination of Barton, the latter would never have been arrested and so never would have made his confession implicating Whitaker. We cannot agree. In Garvin, the defendant was illegally arrested for robbery and taken to the scene of the robbery, where he was identified by one of the victims. The proof revealed that the victim had had an opportunity to observe her assailant for as long as five minutes under good lighting conditions. There was thus clearly a basis for the identification wholly independent of the unconstitutional arrest. We held that the identification evidence was not the product of the unlawful arrest because the arrest had "contributed neither to the knowledge of the witnesses nor to the accuracy of their identification." Commonwealth v. Garvin, 448 Pa. at 266, 293 A.2d at 38. It was in that context, then, that we said that "the only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome. . . . We cannot assume that but for the illegal arrest the appellant would have remained at large indefinitely." id.
In the case at bar, as noted above, the Commonwealth concedes that the illegal arrest of appellant did contribute *415 substantially to the arrest of Barton. It is worth repeating that in the almost three months prior to appellant's arrest and statements on November 22, the police had learned nothing concerning the Simmons murder with the exception of a vague reference to two names; they had no evidence which would link Barton to the crime. It is possible, of course, that sooner or later the police might have amassed sufficient information from a source independent of the appellant upon which to arrest Barton, but the fact remains that, as far as the record shows, the investigation had not focused on Barton, nor was independent evidence implicating Barton available or likely to be so. See Commonwealth v. Cephas, 447 Pa. 500, 508, 291 A.2d 106, 109 (1972).
The police released Whitaker from custody on November 22 because his initial statement, while inculpatory to a degree, did not provide information sufficient to justify charging him with any involvement in the death of Benjamin Simmons. It is obvious, therefore, that it was the Barton confession which provided both the basis for Whitaker's second arrest and the impetus for his full confession. This concatenation of events completes the causal chain. The situation is the same, causally, as if Whitaker, in his first statement, had fatally implicated himself as well as Barton, rather than Barton alone.
Other cases in which this Court has found a dissipation of the taint of illegality are likewise clearly distinguishable from the case at bar. In Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972) and Commonwealth v. Marabel, supra, the defendant in each case was illegally arrested and then confronted with the accusations of a third party (in Fogan, that of a co-felon, in Marabel, that of an eyewitness) which induced him to confess his guilt. In each instance, however, and in contra-distinction to the instant case, the police obtained the accuser's statement from sources wholly independent of the defendant. Specifically, in Fogan, the defendant had *416 given to the police no information which served either a basis for arresting the co-felon or as an inducement to the co-felon to incriminate the defendant.[2] See also Commonwealth v. Wright, 460 Pa. 247, 332 A.2d 809 [filed January 27, 1975] and compare Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189 [filed January 27, 1975].
The Commonwealth argues, finally, that appellant's written waiver of his constitutional rights prior to his confession on November 27 constituted a voluntary act which served to break the chain of causality. In Commonwealth v. Bishop, supra, we iterated the recognition in Wong Sun that the causal connection between an unlawful arrest and a challenged confession is broken not only by a sufficient attentuation (heretofore considered) but also by a showing that the confession was "sufficiently an act of the free will" of the accused. 425 Pa. at 182-83, 228 A.2d at 666, citing Wong Sun, supra. We went on to explain that by "sufficiently an act of the free will" we meant "not only was the confession truly voluntary, but also free of any element of coerciveness due to the unlawful arrest. . . . That is to say, the confession must first meet whatever admissibility test is then required of a normal confession." 425 Pa. at 183, 228 A.2d at 666.[3] In accordance with this approach, we *417 have declined to hold that the giving of Miranda warnings followed by an accused's waiver of his Fifth Amendment rights constitutes, per se, a dissipation of the taint of illegality. Commonwealth v. Richards, supra; Commonwealth v. Daniels, supra; Betrand Appeal, supra. This refusal is bottomed not only upon the deterrent purpose of the exclusionary rule but also upon the belief that the safeguards which Miranda provides an accused who has been lawfully detained may not afford adequate protection to an accused who has been subjected to an unlawful arrest. "`[I]f a mere showing that a confession during a period of unlawful detention was "voluntary" were sufficient to establish its admissibility, Wong Sun would be an empty promise, for the inadmissibility of "involuntary" confessions has long been fully recognized.'. . . . Surely the Miranda warning, intended to deter exploitive police practices, cannot now be perverted to thwart the equally important deterrent purpose behind the exclusionary rule of Wong Sun." Betrand Appeal, supra, 451 Pa. at 391-92, 303 A.2d at 491, quoting Collins v. Beto, 348 F.2d 823, 829 (5th Cir. 1965).
Various factors have been considered by this Court in determining whether a challenged confession, although made after a waiver of constitutional rights, has been obtained through exploitation of prior constitutional violations. Among them are whether the police induced the confession by a manipulation of the prior illegality, Commonwealth v. Kenny, 449 Pa. 562, 297 A.2d 794 (1972); Commonwealth v. Ware, 438 Pa. 517, 265 A.2d 790 (1970); and whether the accused previously made illegally obtained inculpatory admissions which created a psychological pressure upon him to confess. Commonwealth v. Bartlett, 446 Pa. 392, 288 A.2d 796 (1972); Commonwealth v. Frazier, 443 Pa. 178, 279 A. 2d 33 (1971). We think these two factors were present in the case at bar.
*418 By revealing to Detective Ross on November 22 that he had been with Barton at the time of the stabbing, Whitaker had made a partially inculpatory admission. This statement, while it did not amount to a confession of guilt, nevertheless exposed to the police enough damaging information to increase Whitaker's vulnerability during subsequent questioning by the same interrogator. See Commonwealth v. Bartlett, supra, 446 Pa. at 398-99, 288 A.2d 796; Commonwealth v. Frazier, supra, 443 Pa. at 188, 279 A.2d 33; Commonwealth v. Mitchell, supra, 445 Pa. at 466, 285 A.2d at 96. It was against this background that Detective Grose first told appellant that Barton had made a full confession which directly implicated him and then asked appellant if he wanted to confess, and warned him anew of his rights. In view of the psychological pressure implicit in this situation, it is not surprising that appellant signed a waiver of his rights and confessed. This sort of use of unconstitutionally-obtained evidence in order to induce a confession is the very kind of "exploitation" that is condemned. See Commonwealth v. Marabel, supra, 445 Pa. at 447-48, 283 A. 2d at 291.
Under these circumstances, we are unable to find that the giving of Miranda warnings and the waiver of rights which followed constituted the kind of uncoerced waiver which it is the Commonwealth's burden to establish. The resulting evidence the two confessions of November 27 "was come at by the exploitation of [the illegal arrest]", Wong Sun, supra, 371 U.S. at 488, 83 S.Ct. at 417 and its admission into evidence was error.
Judgment of sentence reversed and case remanded for a new trial.
JONES, C.J., filed a dissenting opinion in which EAGEN and O'BRIEN, JJ., join.
*419 JONES, Chief Justice (dissenting).
I dissent. The majority opinion views appellant's statements of November 27, 1972 as the product of his illegal arrest on November 22 and implies an acceptance of the "but for" test specifically rejected by the United States Supreme Court in Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and by this Court in Commonwealth v. Bishop, 425 Pa. 175, 182 n. 5, 228 A.2d 661, 665 n. 5 (1967).
The majority essentially argues that "but for" the illegal arrest of Tony Whitaker on November 22, the police would not have uncovered John Barton, who then would not have implicated Whitaker, who then would not have confessed after his re-arrest. However, Barton's arrest was concededly legal. Once Barton was properly in custody any evidence flowing from his arrest was related to that arrest and not to the illegal seizure of Whitaker. More particularly, Barton's decision to confess and implicate Whitaker itself provides a sufficient intervening circumstance to dissipate any taint of the illegality which occurred November 22.
In Commonwealth v. Wright, 460 Pa. 247, 332 A.2d 809 [J-554 filed January 27, 1975], Mr. Justice Pomeroy, again speaking for the majority, held that a confession following an illegal arrest was admissible even though prompted by the confrontation with another illegally-arrested suspect. The confession was ruled to be a product of the confrontation with the other suspect. If the confession at issue in Commonwealth v. Wright was sufficiently purged of any initial illegality, surely one that flows from a legal arrest must also be admissible evidence.
I maintain that Whitaker's rearrest and subsequent statements were the products of Barton's legal arrest and competent confession and, therefore, sufficiently attenuated from the initial illegality. Wong Sun v. United States, 371 U.S. at 487, 83 S.Ct. 407, quoting Nardone v. *420 United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939).
I would affirm.
EAGEN and O'BRIEN, JJ., join in his dissent.
NOTES
[1] The writer of this opinion, speaking only for himself, would hold that the statements of November 22 must be excluded on the rationale set forth in the concurring opinion in Betrand Appeal, 451 Pa. 381, 392, 303 A.2d 486, 492 (1973) (concurring opinion of Pomeroy, J.).
[2] In both Fogan and Marabel, therefore, it could be said: "the genesis of the confession was not the use of any illegally obtained statements from the appellant's own lips, rather it was information obtained from a totally separate, independent, and legitimate source. The evidence, therefore, . . . was not the product of exploitation of the original illegality, but rather, the result of confronting appellant with evidence totally devoid of any illegality." Commonwealth v. Marabel, 445 Pa. at 448, 283 A.2d at 291.
[3] The admissibility of the confession in Bishop was governed by the pre-Escobedo "voluntariness" test. See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Today, of course, it is the decision of the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) which controls this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338967/ | 510 S.E.2d 828 (1999)
270 Ga. 521
COILE et al.
v.
GAMBLE.
No. S98A1840.
Supreme Court of Georgia.
January 19, 1999.
Reconsideration Denied February 19, 1999.
*829 Dave M. Hudgins, Athens, for James H. Coile et al.
Malcolm C. McArthur, Michael Curtis Pruett, McLeod, Benton, Begnaud & Marshall, LLP, Athens, John B. Gamble, Jr., Fisher & Phillips, LLP, Atlanta, for Ella Martha Elder Gamble.
HUNSTEIN, Justice.
Ella Gamble brought an equitable action after the death of her brother, Benjamin Elder, who died in November 1994, to cancel and set aside an April 1991 deed in which Elder conveyed 202 acres to his friends James and Bonnie Coile in exchange for unspecified personal services the Coiles had agreed to provide him. A jury found that the deed should be set aside on the grounds of great disparity of consideration joined with great disparity of mental ability among the parties; undue influence; and mistake of fact by Elder mixed with fraud by the Coiles. The trial court entered judgment on the jury's verdict and subsequently denied the Coiles' motion for new trial. This appeal ensued.
1. Appellants contend that numerous errors were committed by the trial court in the requested charges it refused to give and the charge as given to the jury.
As an initial matter, our review of the record reveals that at all times during the proceedings below, counsel for both parties and the trial court operated under the belief that the factual conflicts presented for resolution in this equitable action were within the jury's exclusive province. The pre-trial order signed by counsel for the parties, the trial court's rulings on motions for directed verdict during the trial, the judgment entered on the jury's verdict, and arguments made for and against the motion for new trial, as well as the ruling on that motion, all consistently establish that the proceedings were conducted with the jury serving as the finders of fact in the same manner as a jury in an action at law. It is only for the first time on appeal that appellee asserts the position that the jury in this equitable action served solely as an advisory body to the trial court. See Bagley v. Robertson, 265 Ga. 144, 145, 454 S.E.2d 478 (1995). Given the unique circumstances in this case, we need not determine whether appellee is correct that errors in the jury charge must be deemed harmless because a trial court in an equitable action is not bound by an advisory jury's findings of fact. Rather, because the trial court's judgment in this case was not based on an adoption of an advisory jury's findings but rather constituted an entry of judgment on facts found by the jury and conclusively accepted by the trial court, we hold that the judgment against appellants is subject to reversal should error in the jury instructions be demonstrated.
2. Appellants contend that the trial court erred by failing to give their requested charge that "weakness of mind not amounting to imbecility is not sufficient mental incapacity to justify setting a deed aside." This charge contained a correct statement of Georgia law and was applicable to the issues being tried. See Thomas v. Garrett, 265 Ga. 395(3), 456 S.E.2d 573 (1995). In order for a refusal to charge to be error, the request must be entirely correct and accurate; adjusted to the pleadings, law, and evidence; and not otherwise covered in the general charge. Lee v. Bartusek, 205 Ga.App. 551(1), 422 S.E.2d 570 (1992). The transcript reveals that the trial court charged the jury that "the degree of mentality necessary for a party to execute a valid contract is that the party must be possessed of mind and reason equal to a clear and full understanding of the nature and the consequences of his act in making the contract." Although appellee is correct that this charge states a higher standard of mental capacity, we find meritless appellee's assertion that the charge benefitted appellants and thus ameliorated any error created by the failure to give appellants' *830 requested charge. On the contrary, the trial court's charge benefitted appellee, in that it authorized the jury to find in appellee's favor if the jury determined that Elder's mental condition when he executed the deed failed to meet the higher standard of mental capacity, thus allowing appellee to prevail even if Elder's mental condition reflected a weakness of mind not amounting to imbecility, i.e., the standard of mental capacity set forth in appellants' requested charge. We agree with appellants that the trial court's failure to give their requested charge on a critical legal defense constituted substantial error and the trial court therefore erred by denying appellants' motion for new trial. See Blankenship v. West Ga. Plumbing Supply, 213 Ga.App. 275, 277-78, 444 S.E.2d 596 (1994).
3. Because the judgment must be reversed, we need not address appellants' evidentiary arguments. Appellants' remaining enumerations either will not recur upon retrial or were not properly objected to in the trial court.
Judgment reversed.
All the Justices concur. *831 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338968/ | 510 S.E.2d 159 (1999)
350 N.C. 39
FRYE REGIONAL MEDICAL CENTER, INC., Plaintiff,
v.
James B. HUNT, Jr., H. David Bruton, M.D., Secretary of the North Carolina Department of Human Resources, and North Carolina Department of Human Resources, Defendants, and
Catawba Memorial Hospital, Intervenor-Defendant.
No. 613PA97.
Supreme Court of North Carolina.
February 5, 1999.
*160 Bode, Call & Stroupe, L.L.P., by Robert V. Bode and Diana E. Ricketts, Raleigh, for plaintiff-appellee.
Michael F. Easley, Attorney General, by James A. Wellons, Special Deputy Attorney General, for defendant-appellants; and Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by James T. Williams, Jr., and Jim W. Phillips, Jr., Greensboro, for intervenor-defendant-appellant.
FRYE, Justice.
The controlling question in this case is whether the Governor's power to approve the State Medical Facilities Plan (SMFP) includes the power to make substantive amendments to it. For the reasons stated in this opinion, we conclude that the Governor does have such authority. Accordingly, we must reverse the superior court's decision to the contrary.
The controversy arises out of the attempts by Catawba Memorial Hospital, located in Hickory, to start an open-heart surgery program. These efforts were opposed by Frye Regional Medical Center, Inc., which had already applied for and received a Certificate of Need (CON) to initiate an open-heart surgery program at its hospital in Hickory. After several years of legal proceedings between the two hospitals, the Department of Human Resources (Department), and others, the State Health Coordinating Council (Council) recommended, and the SMFP contained findings, that there was no need for *161 any new open-heart surgery programs in 1997. On 16 September 1996, the 1997 SMFP was submitted to the Governor for his approval. On 26 November 1996, the Governor approved the 1997 recommended SMFP after amending it to provide additional nursing beds for several counties.
The 1997 SMFP was presented to the Rules Review Commission for approval as a permanent rule. The Rules Review Commission objected, and in response to the objections, the Department and the Council recommended additional amendments to the Governor. These amendments modified the open-heart surgery and other cardiac-need determinations in the plan. On 23 July 1997, the Governor approved the recommended amendments, except for the amendment to the open-heart need determination. The Governor's memorandum included the following:
I concur with and approve all the proposed amendments with one exception. I do not approve the amendment to the need determination for open heart surgery services as proposed by the Council. Instead, I direct that the need determination be amended to reflect a need for open heart surgery services from any hospital which acquired a heart-lung bypass machine prior to March 18, 1993 and which, nevertheless, is unable to use such a machine in the provision of open heart surgery services because the hospital does not have a certificate of need authorizing it to provide them. I find that it is in the best interest of our citizens if valuable assets be used and not remain idle. I also believe that we should provide care close to home whenever we can.
Your Department has informed me that this situation exists only in the Catawba County area. Catawba County is located in the Hickory-Morganton MSA, which is the fourth largest MSA in the State. However, the three larger MSAs have two to four times the number of heart-lung bypass machines available for the provision of open heart surgery services per 100,000-person population. In addition, Catawba County is located in HSA I. HSA I is the only HSA (other than HSA VI) which has only two facilities located within it which provide open heart surgery services. In light of all of the foregoing, I find that the citizens residing in the Catawba County area have a need for such additional open heart surgery services.
On 22 August 1997, Frye Regional instituted the present action challenging the Governor's authority to amend the SMFP. On 5 September 1997, the superior court granted Frye Regional's motion for a preliminary injunction, suspending the 23 July 1997 amendment to the 1997 SMFP and reinstating the provisions of the preexisting 1997 SMFP. Judge Manning certified the order for immediate appeal.
Defendants and Catawba Memorial Hospital gave notice of appeal, and on 5 March 1998, this Court allowed defendants' and Catawba's petition for discretionary review of the following question prior to determination by the Court of Appeals:
Does the Governor of North Carolina, as Chief Executive of the State and head of the Executive Branch of State Government, have the power and authority, under the North Carolina General Statutes and the North Carolina Constitution, to make and execute policy decisions in the area of health care facilities' needs, including the power to amend the State's annual SMFP, a draft of which is prepared for him by the SHCC and presented to him by the Secretary of the Department of Human Resources?
In the preliminary injunction order, the judge explained: "The sole basis of my determination is my conclusion that the Governor has no authority, as a matter of law, to amend the SMFP. I specifically do not reach the other factual and legal issues raised by the parties." Thus, the narrow issue before us is the correctness of the superior court's conclusion.
In the preliminary injunction order, the judge explained his conclusion as follows:
I specifically conclude as a matter of law that the Governor of the State of North Carolina has no authority to amend the SMFP. Under the law,
*162 "State Medical Facilities Plan" means the plan prepared by the Department of Human Resources and the North Carolina State Health Coordinating Council, and approved by the Governor.
G.S. 131E-176(25) [ (1997) ].
"North Carolina State Health Coordinating Council" means the Council that prepares, with the Department of Human Resources, the State Medical Facilities Plan.
G.S. 131E-176(17).
In the section outlining the Department's specific powers and duties, the Department is empowered to:
develop policy, criteria, and standards for health facilities planning; conduct statewide registration and inventories of and make determinations of need for health service facilities, health services as specified in G.S. 131E-176(16)f., and equipment as specified in G.S. 131E-176(16)f1., which shall include consideration of adequate geographic location of equipment and services; and develop a State Medical Facilities Plan. G.S. 131E-177(4).
G.S. 131E-177(4) [ (1997) ].
The statute further provides that:
The Secretary of the Department of Human Resources shall have final decision-making authority with respect to all functions described in this section [G.S. 131E-177].
G.S. 131E-177.
Read in pari materia, these sections contemplate that the SMFP is to be prepared by the SHCC acting with the Department, and then approved by the Governor. The Governor may approve or disapprove the SMFP as submitted by the SHCC and the Department but may not unilaterally develop or amend it. The power is similar to that exercised by him in reviewing legislation: he can approve or veto, but he cannot rewrite the bill.
For the same reasons noted above, it is also clear that the Governor does not have the power to amend the open heart review schedules in 1997, because the SHCC did not prepare and develop any such amendments.
The entire statutory and regulatory process for health planning in North Carolina contemplates that the SMFP shall be developed by the SHCC and the Department in an orderly and logical fashion, with numerous checks and balances along the way. The Governor's sole function in that process is to accept or reject the SMFP as submitted to him. The Governor's amendment of the SMFP in this case completely circumvents that process. Because the authority to develop, prepare or amend the SMFP is solely vested by statute in the SHCC and the Department, the Governor has no authority to amend the SMFP.
(Emphasis added.)
We do not agree with the above-emphasized portions of the preliminary injunction order. We specifically reject analogizing the Governor's power to amend the State Medical Facilities Plan to the Governor's authority under the Constitution to veto legislation enacted by the General Assembly. Furthermore, as explained below, the statutes give the Council and the Department specific authority to develop or prepare the SMFP, without specific reference to amending it. See N.C.G.S. §§ 131E-176(17), (25), 131E-177(4). We conclude that the Governor's power to amend in this case facilitates his role in bringing closure to the statutory and regulatory process and does not suggest a circumvention of the process.
Plaintiff argues that under N.C.G.S. § 131E-177, the final decision-making power rests with the head of the Department of Human Resources. While the Secretary of the Department does have the final decision-making power with regard to all functions under N.C.G.S. § 131E-177, the Secretary's powers are separate and distinct from those of the Governor. While the Secretary must develop or prepare the SMFP to effectuate the legislative purpose, the Governor must, as a part of the approval process, ensure that the SMFP comports with the general health policies and goals of the state. To this end, the Governor has the authority to make substantive changes by amending the SMFP to *163 ensure that its provisions are properly executed under the statutes. If the provisions of the SMFP, after review, are approved by the Rules Review Commission, they will become permanent rules. N.C.G.S. § 150B-21.3 (1995).
The Department of Human Resources is a department of the Executive Branch of state government, with its Secretary reporting directly to the Governor as chief executive officer of the state. Although there is statutory recognition of the State Health Coordinating Council, it is essentially an advisory body created by executive order. Exec. Order No. 43 (1994). The Governor appoints its twenty-seven members, designates its chair and vice chair, and sets out its duties and responsibilities. Id. at §§ 2, 3, 7. Under the statutes, the role of the Council and the Department is to "prepare" or "develop" the SMFP. N.C.G.S. §§ 131E-176(25), 131E-177(4). The Governor's role is to "approve" the SMFP. N.C.G.S. § 131E-176(25). Read in context, these statutes suggest that the Governor's role is to make the final decision concerning the SMFP's contents after it has been developed and prepared by the Department and the Council.
The need for such authority is clearly shown in this case. On at least two occasions, the Rules Review Commission objected to specific provisions of the 1997 SMFP relating to the need determinations for open-heart surgery services. Although the Governor had previously approved the 1997 SMFP after amending it, it could not become effective over the objections of the Rules Review Commission. The Council and the Department proposed additional amendments, most of which, but not all, met the Governor's approval.
In this context, the Governor's power to approve carries little meaning without the power to modify or amend as a part of the approval process. We reject plaintiff's contention that the Governor's power to approve is purely ministerial. Such a view is inconsistent with the statutory scheme and the executive powers of the Governor.
The operative statute provides as follows:
"State Medical Facilities Plan" means the plan prepared by the Department of Health and Human Services and the North Carolina State Health Coordinating Council, and approved by the Governor.
N.C.G.S. § 131E-176(25).
In interpreting a statute, we first look to the plain meaning of the statute. Where the language of a statute is clear, the courts must give the statute its plain meaning; however, where the statute is ambiguous or unclear as to its meaning, the courts must interpret the statute to give effect to the legislative intent. Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 388 S.E.2d 134 (1990). However, "`where a literal interpretation of the language of a statute will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded.'" Mazda Motors of Am., Inc. v. Southwestern Motors, Inc., 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979) (quoting State v. Barksdale, 181 N.C. 621, 625, 107 S.E. 505, 507 (1921)). The interpretation of a statute given by the agency charged with carrying it out is entitled to great weight. See High Rock Lake Ass'n v. N.C. Envtl. Mgmt. Comm'n, 51 N.C.App. 275, 279, 276 S.E.2d 472, 475 (1981).
With these principles of construction in mind, we must determine the meaning of the word "approved" as used in N.C.G.S. § 131E-176(25). The meaning is not clear from the literal language of the statute. To "approve," as defined by Black's Law Dictionary, means "[t]o be satisfied with; to confirm, ratify, sanction, or consent to some act or thing done by another." Black's Law Dictionary 102 (6th ed. 1990). Plaintiff argues that the Governor is limited by such a definition in making an approval and that the power to modify is not included. The Department of Human Resources, as the agency charged with implementing the SMFP, interprets the word "approved" more broadly, asserting that the Governor did have the authority to amend the SMFP in the instant case.
We note that the Governor has amended State Medical Facilities Plans in the past. While both parties acknowledge that the *164 present and former governors have amended SMFPs, plaintiff contends that such amendments have occurred only in very limited circumstances because of a judicial decree, error, change in appropriations, or change in inventories, and that the present amendment goes beyond that exercised by previous Governors. Plaintiff further argues that the SMFP itself provides that it may be changed post-approval only under these limited circumstances. However, in the instant case, we note that the Governor had given previous approval to the 1997 SMFP only after amending it. We also note that the present amendment by the Governor came only after the Council and the Secretary had recommended additional amendments in response to a refusal by the legislatively established Rules Review Commission to approve the former plan. Thus, the amendments here also occurred in very limited circumstances.
Moreover, while the legislature has amended various related statutes on many occasions, it has in no way limited the Governor's ability to amend the SMFP. See Act of July 15, 1983, ch. 775, sec. 1, 1983 N.C.Sess.Laws 896, 896 (recodifying the public-hospital laws in portions of the General Statutes); Act of June 27, 1984, ch. 1000, 1984 N.C.Sess.Laws 95 (making final agency decisions on CONs appealable to the North Carolina Court of Appeals); Act of June 27, 1984, ch. 1001, 1984 N.C.Sess.Laws 95 (ending the moratorium on nursing-home construction); Act of June 27, 1984, ch. 1002, 1984 N.C.Sess.Laws 95 (making technical and clarifying changes to the CON law); Act of June 30, 1987, ch. 511, 1987 N.C.Sess.Laws 795 (amending CON law); Act of July 15, 1991, ch. 692, 1991 N.C.Sess.Laws 2215 (making technical and clarifying amendments to the CON statutes); Act of March 18, 1993, ch. 7, 1993 N.C.Sess. Laws 5 (modifying the CON law). While this legislative inaction is not conclusive, at best, it does not support a prohibition on the Governor's power to make substantive amendments. Finally, an interpretation of the word "approved" as including the power to modify is not unprecedented. See, e.g., State ex rel. Comm'r of Ins. v. N.C. Auto. Rate Admin. Office, 293 N.C. 365, 385-87, 239 S.E.2d 48, 61-62 (1977) (concluding that Commissioner may alter plan following approval in part of a proposed plan); State ex rel. Comm'r of Ins. v. N.C. Fire Ins. Rating Bureau, 291 N.C. 55, 65, 229 S.E.2d 268, 274 (1976) (concluding that Commissioner need not approve or disapprove in full but may allow part of a proposed increase or decrease); In re N.C. Fire Ins. Rating Bureau, 275 N.C. 15, 40, 165 S.E.2d 207, 224 (1969) (rejecting position that Commissioner must approve or disapprove filing in its entirety; rather, Commissioner may modify proposal to allow part of proposed increase).
In the instant case, there are no statutorily prescribed methods for the Governor to exercise the power of approval of the proposal. In the absence of statutorily detailed limits on the Governor's power to approve, we cannot conclude that his means of approval may be constrained only to acceptance or rejection of the plan in total. One can easily envision a situation where the Governor disapproves a part of the SMFP and continuously sends it back to the Council, and the Council continuously makes amendments that the Governor disapproves, resulting in either no State Medical Facilities Plan or a complete stalemate. We believe the better interpretation of the statute is that the Governor has the final authority to make substantive amendments as a part of the approval process.
Based on the foregoing, we hold that the Governor's power to approve the State Medical Facilities Plan includes the power to amend it. Therefore, the order of the superior court is reversed.
REVERSED.
Justices MARTIN and WAINWRIGHT did not participate in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070141/ | Deny and Opinion Filed July 29, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00937-CV
IN RE HAIJUN ZHU, Relator
Original Proceeding from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-14-08308
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Lewis
Opinion by Justice Francis
Relator filed this petition for writ of mandamus arguing the trial court abused its
discretion in failing to grant his motion to dismiss the de novo hearing request of real party in
interest.
Ordinarily, to obtain mandamus relief, a relator must show both that the trial court has
clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential
Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004); Walker, 827 S.W.2d at 839. Mandamus is an
extraordinary remedy that is available only in limited circumstances. CSR Ltd. v. Link, 925
S.W.2d 591, 596 (Tex. 1996) (orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992) (orig. proceeding)). Mandamus is appropriate “only to correct a clear abuse of
discretion or the violation of a duty imposed by law when there is no other adequate remedy by
law.” Id. “Mandamus review of incidental, interlocutory rulings by the trial courts unduly
interferes with trial court proceedings, distracts appellate court attention to issues that are
unimportant both to the ultimate disposition of the case at hand and to the uniform development
of the law, and adds unproductively to the expense and delay of civil litigation.” In re
Prudential Ins. Co., 148 S.W.3d at 136. An appellate remedy is not inadequate merely because it
might involve more delay or cost than mandamus. In re Ford Motor Co., 988 S.W.2d 714, 721
(Tex. 1998) (orig. proceeding).
Because relator has failed to establish his right to mandamus relief, we DENY the
petition for writ of mandamus. TEX. R. APP. P. 52.8(a).
140937F.P05
/Molly Francis/
MOLLY FRANCIS
JUSTICE
–2– | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2263835/ | 24 Cal.App.4th 78 (1994)
28 Cal. Rptr.2d 809
DEBORAH TERZIAN et al., Plaintiffs and Appellants,
v.
COUNTY OF VENTURA, Defendant and Respondent.
Docket No. B072717.
Court of Appeals of California, Second District, Division Six.
March 22, 1994.
*80 COUNSEL
Kenneth M. Sigelman, Penelope A. Phillips and Bryan D. Parker for Plaintiffs and Appellants.
Monroy & Weiss and Jerrie S. Weiss for Defendant and Respondent.
*81 OPINION
STONE (S.J.), P.J.
Deborah Terzian, Janice Brown, Cheryl Lopez, Michael Brown and Kenneth Brown appeal from a judgment in favor of respondent County of Ventura (County). They contend that the trial court abused its discretion in dismissing defendant California Forensic Medical Group, Inc. (Group) pursuant to Code of Civil Procedure section 583.420, subdivision (a)(1), and incorrectly determined that decedent Charles Brown was a prisoner at the time the allegedly negligent acts occurred. We affirm the judgment.
FACTS
Charles Brown was arrested on the evening of November 10, 1987, for several misdemeanor Vehicle Code violations and a violation of probation. He was taken to jail at approximately 11:40 p.m. at which time he was searched, his wallet and other personal property taken, and he was given a property inventory slip and turned over to the jail personnel by the arresting officer. Further booking procedures subsequently occurred, including his being photographed and fingerprinted. The official booking time was listed at 2:58 a.m., November 11, 1987, with a supplemental booking at 3:06 a.m.
A nurse saw Mr. Brown at 1:25 a.m. when he reported chest pain and gave a history of angina. He was given nitroglycerin. At some time between 1:25 a.m. and 9:25 a.m. Mr. Brown was seen by a physician at the jail who noted that Mr. Brown's pain had been alleviated and prescribed nitroglycerin as needed and Vistaril. In the early evening of November 11, 1987, Mr. Brown was found in his cell unconscious after suffering a heart attack. He was taken to a County hospital where he died a month later without ever having regained consciousness.
Appellants, Brown's children, filed suit against the County September 9, 1988, after their tort claim was rejected March 11, 1988. (Gov. Code, §§ 901, 911.2.) The County, in answering the complaint, asserted various affirmative defenses, including statutory immunities pursuant to the Government Code.
September 3, 1991, appellants amended their complaint to name Group as a Doe defendant and served the complaint September 4, 1991. The Group demurred to the complaint and moved to dismiss it, pursuant to Code of Civil Procedure sections 583.410, subdivision (a), and 583.420, subdivision (a)(1), which permit dismissal of an action when service is not made within two years after the action is commenced.
*82 Appellants opposed the motion on grounds that they were unaware of the Group's existence until documents were produced by the County more than one and one-half years after the complaint had been filed. Appellants asserted that the Group produced no evidence indicating that the plaintiffs knew, or should have known, of the existence of the Group prior to the filing of the complaint. They further argued that the Group was aware of the case, retained counsel, and pursued discovery for at least seven months prior to the date on which it was served with the complaint, and could show no actual prejudice. The trial court granted the motion to dismiss Group.
At time set for trial, the parties agreed that the issue whether Charles Brown was a "prisoner" within the meaning of the Government Code immunity statutes would be tried first since a finding that he was a prisoner would result in a complete defense to all of appellants' causes of action and therefore dispose of the remaining issues in the case.
The court determined that Charles Brown became a prisoner at 11:40 p.m. on November 10, 1987, and entered judgment on behalf of the County.
DISCUSSION
1. No Abuse of Discretion in Dismissal of Group.
(1a) On March 27, 1990, the County served its response to appellants' request to identify and produce documents. Among the documents produced were two pages of progress notes pertaining to medical care Mr. Brown had received while incarcerated. These records contained the Group's letterhead. January 4, 1991, when the County deposed two of the appellants, an attorney from the law firm of Monroy & Weiss appeared and identified herself as representing Wausau Insurance and the Group. She stated that the County had notified the Group of the existence of the lawsuit. At later depositions of appellants by the County on April 24, 1991, the counsel for the Group appeared as well.
Code of Civil Procedure sections 583.410, subdivision (a), and 583.420, subdivision (a)(1), allow the court to dismiss an action for delay in prosecution where service of the complaint was not made within two years after the action was commenced against the defendant. (2) In deciding whether to exercise this discretionary power, the court should consider the factors set forth in rule 373(e) of the California Rules of Court. (Ladd v. Dart Equipment Corp. (1991) 230 Cal. App.3d 1088, 1099 [281 Cal. Rptr. 813].) The competing considerations to be evaluated are the policies of discouraging stale claims and compelling reasonable diligence balanced *83 against the strong public policy which seeks to dispose of litigation on the merits rather than on procedural grounds. (Ibid.)
(3) When the plaintiff has not served within the two-year period, the plaintiff is required to show excusable delay. (Ladd v. Dart Equipment Corp., supra, 230 Cal. App.3d 1088, 1100.) A reviewing court may not reverse a trial court's order granting dismissal for dilatory prosecution unless the plaintiff meets the burden of establishing manifest abuse of discretion resulting in a miscarriage of justice. (Ibid.; Schumpert v. Tishman Co. (1988) 198 Cal. App.3d 598, 603 [243 Cal. Rptr. 810].) An appellate court may not substitute its own discretion for that of the trial court and must uphold the dismissal order if the trial court has not abused its discretion. (Ladd v. Dart Equipment Corp., supra, at p. 1100.)
(1b) Here appellants, by their own admissions, received medical treatment records on the Group's letterhead in March 1990. Furthermore, even after the appearance of the Group's legal counsel in January 1991, appellants failed to amend their complaint and serve the Group until September 4, 1991, almost four years after Mr. Brown's death, and nine months after the Group's appearance at the deposition.
Appellants assert that since the Group was aware of the litigation since at least January 1991, it can show no prejudice. The Group did not have to show actual prejudice where there has been an unjustified delay in service of the summons and complaint of almost three years. (Schumpert v. Tishman Co., supra, 198 Cal. App.3d 598, 605-606; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 332 [216 Cal. Rptr. 718, 703 P.2d 58].) (4) Prejudice is presumed from unexplained delay, particularly in serving the complaint. (Hilliard v. Lobley (1989) 216 Cal. App.3d 638, 641 [265 Cal. Rptr. 5].) Lack of prejudice to the defendant remains a valid consideration after Blank v. Kirwan where the plaintiff has acted diligently from the outset. (Schumpert, supra, at p. 606.)
(1c) While appellants offered some explanation for the delay, the court did not abuse its discretion in finding it insufficient, given the information known to appellants. We will not disturb the court's grant of dismissal.
2. Brown Was a Prisoner at the Relevant Times.
Government Code section 844.6 provides, in pertinent part, that a public entity is not liable for an injury to any prisoner. A "prisoner" includes an inmate of a prison, jail or penal or correctional facility. (Gov. Code, § 844.) The parties stipulated that the success of appellants' lawsuit against the *84 County depended upon whether decedent Charles Brown was a "prisoner" within the meaning of the Government Code at the time he received the medical care alleged to be negligent. The County's records indicate that medical care was initially rendered at 1:25 a.m. on November 11, 1987.
The trial court heard the testimony of Sergeant Gary Cook, the jail services supervisor since 1985, regarding the booking procedures and reviewed the pertinent arrest and booking records. Additionally, the court personally toured the reception and booking area of the jail. The court made the following findings of fact: Charles Brown was arrested on suspicion of three misdemeanor Vehicle Code violations. He was delivered to the County jail on November 10, 1987, at or about 11:40 p.m., when sheriff's officer Hesse searched him and obtained his wallet and watch, et cetera, and he was given a booking number.
The court found that at that point he was no longer an arrestee as he had been delivered to the custody of the sheriff's officers and the delivery was complete when he went through the metal doors into the jail to the booking area. At that time the arresting officer signed the personal property form and went back to the streets, leaving Mr. Brown to be given a booking number, an armband, and directed in one of the first steps of the booking process, to the holding cells with the telephones. The court found as a matter of law that Charles Brown was a prisoner at all times material because he was confined in a correctional facility and he was under the authority of the jail law enforcement officers, or legal process.
The crucial question, as identified by appellants, is at what point an "arrestee" becomes a "prisoner" for purposes of the governmental immunity statutes. Appellate courts have struggled with this question, not always consistently. (See, e.g., Patricia J. v. Rio Linda Union Sch. Dist. (1976) 61 Cal. App.3d 278, 283 [132 Cal. Rptr. 211], and cases cited therein.) Patricia J. concluded that "... a prisoner must be a person confined in a correctional facility or institution under the authority of law enforcement authorities or legal process." (61 Cal. App.3d 278, 287.) Larson v. City of Oakland (1971) 17 Cal. App.3d 91, 97 [94 Cal. Rptr. 466], held that the definition of "prisoner" did not extend to persons detained by the police but not arrested, or arrested and not booked, and "clearly was not intended to embrace persons detained by law officers temporarily for purposes of investigation."
Meyer v. City of Oakland (1980) 107 Cal. App.3d 770, 778 [69 Cal. Rptr. 788], elaborated that the term "prisoner" includes "a person who is confined in a facility or institution, under the authority of law but pursuant to a penological or correctional objective" as opposed to one who is simply being *85 restrained involuntarily, as stated in Datil v. City of Los Angeles (1968) 263 Cal. App.2d 655, 659 [69 Cal. Rptr. 788] (although Datil had been booked and arrested). In essence, "[j]udicial decisions construing the definition of prisoner within [Gov. Code] sections 844 and 844.6 have focused upon the element of confinement due to court commitment or legal process." (Badiggo v. County of Ventura (1989) 207 Cal. App.3d 357, 360 [254 Cal. Rptr. 771].)
(5a) Appellants assert that Charles Brown was simply an arrestee until completion of the formal booking process at 3:06 a.m. on November 11, 1987. They rely for this proposition on Zeilman v. County of Kern (1985) 168 Cal. App.3d 1174 [214 Cal. Rptr. 746]. In Zeilman, the appellate court reversed a grant of summary judgment because it found there was a triable issue of fact as to plaintiff's status as a prisoner at the time of her injury. In Zeilman, plaintiff's attorney obtained an "OR release" for plaintiff shortly after her arrest and declared that when he arrived at the jail, he saw plaintiff being booked. (Id., at p. 1182.) After an arrest and booking report and property inventory were filled out, she was told she could sit down on a bench adjacent to the booking area. (Ibid.) While walking to the bench, she fell and was injured.
The reviewing court in Zeilman held that "... the line of demarcation between status as an arrestee and as a confined person is the completion of the booking process. Once an arrestee has been booked, the status of the arrestee changes since he or she has become confined to a correctional facility under the authority of law." (168 Cal. App.3d 1174, 1181.) The court could not hold as a matter of law, based on the declarations presented, that the booking process had been completed because it opined that plaintiff was entitled, immediately upon completion of the booking process, to an OR release, subject only to signing the release agreement. (Id., at p. 1183.) Since she was directed to sit down instead of being released, the court held that there was a triable issue of fact whether plaintiff was a prisoner at the time of her injury. (Ibid.)
Even though Penal Code section 7, subdivision 21, provides that "[t]o `book' signifies the recordation of an arrest in official police records, and the taking by the police of fingerprints and photographs of the person arrested, or any of these acts following an arrest" (italics added), the reviewing court was not persuaded that this language "necessarily means as a matter of law that completion of the record of the arrest in official police records completes the booking process, whether or not the particular law enforcement agency requires completion of all three acts prior to a prisoner's release." (Zeilman v. County of Kern, supra, 168 Cal. App.3d 1174, 1183.)
*86 Appellants assert that Zeilman has never been disapproved and, in fact, has been cited with approval in Peterson v. County of Los Angeles (1986) 185 Cal. App.3d 705, 708 [230 Cal. Rptr. 80]. In Peterson, however, the plaintiff had already been convicted and was in jail in the custody of the sheriff when he was injured. (Ibid.) Peterson did not discuss the elements of booking, as defined in Penal Code section 7, subdivision 21. A perusal of the cases discussing the definition of "prisoner" under Government Code section 844 and the facts of this case compel a conclusion that the court did not err in finding Charles Brown a prisoner at the pertinent times herein.
(6) Whatever the definition of the term "prisoner" includes, it does not include a person merely under arrest and still in the custody of the arresting officer. (See 74 Ops.Cal.Atty.Gen. 21, 23 (1991).) Although booking may, as a matter of law, distinguish a prisoner from an arrestee, whether a person has been booked is essentially a question of fact. Zeilman, contrary to appellants' arguments, did not hold that the booking process had to include photographing and fingerprinting before it could be considered completed. The reviewing court simply could not state as a matter of law from the declarations before it that the plaintiff had been booked.
(5b) Here Sergeant Cook stated that the formal booking procedure could take from hours to days, depending upon how many arrestees were in custody and the condition of the particular arrestee. According to Sergeant Cook, the County jail has several types or stages of booking, i.e., reception booking, master booking, supplemental booking, and final booking. However, once the initial reception booking is completed, i.e., the arrestee is searched, initial booking information taken, property inventoried, and a property inventory slip is signed and given to the arrestee, the arresting officer turns the arrestee over to the jail personnel and the arrestee is given a booking number and wristband and placed in a holding cell. At that point, the arresting officer leaves and the person is now in the custody of the County Sheriff's Department.
Decedent Brown was photographed and fingerprinted but the records did not show the exact time these procedures were completed. Nonetheless, it is clear from the record that once the arresting officer had turned Brown over to the jail deputies, Brown was confined to jail under legal process and was not free to leave of his own accord. Under appellants' version of Zeilman, an arrestee could be incarcerated for an extended period, but because, due to some unforeseen circumstance he or she was not fingerprinted or photographed or not all supplemental booking was completed until a later time, the person would not be "confined to a correctional facility under the authority of law" (Zeilman v. County of Kern, supra, 168 Cal. App.3d 1174, *87 1181) until all those acts were completed even though the person was not free to leave. Such a strained interpretation of "booking" is unreasonable.
Based upon the record herein, the trial court did not err in concluding that Charles Brown had become a prisoner when he was turned over to the custody of the sheriff's department upon completion of the initial booking in the reception area.
The judgment is affirmed. Costs to respondent County.
Gilbert, J., and Yegan, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264319/ | 14 Cal.App.4th 1499 (1993)
18 Cal. Rptr.2d 412
CLARICE HAYMAN, Plaintiff and Appellant,
v.
SITMAR CRUISES, INC., et al., Defendants and Respondents.
Docket No. B058688.
Court of Appeals of California, Second District, Division Four.
April 15, 1993.
*1500 COUNSEL
Fest & Williams and Stuart W. Fest for Plaintiff and Appellant.
*1501 Kaye, Rose & Maltzman, Lawrence W. Kaye and Bradley M. Rose for Defendants and Respondents.
OPINION
HOFFMAN, J.[*]
INTRODUCTION
Plaintiff and appellant Clarice Hayman (appellant) appeals from a judgment entered against her and in favor of defendants and respondents Sitmar Cruises, Inc. (Sitmar) and Princess Cruises, Inc. (Princess) (Sitmar and Princess are referred to collectively as respondents) after the grant of respondents' motion for summary judgment on the ground appellant's action was barred for her failure to effect service within one year. We reverse the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On July 19, 1988, appellant, a passenger aboard the cruise ship Fairwind,[1] sustained injuries to her right arm and hand when the elevator in which she was riding stopped abruptly. She immediately reported the accident to shipboard personnel who took her statement and conducted an investigation.
On October 3, 1988, appellant's attorney wrote to Sitmar requesting information concerning Sitmar's liability insurance. Discussions between Sitmar and appellant's attorney followed, and several months later, on January 19, 1989, Sitmar's claims representative provided appellant with a copy of the accident report taken shipboard and requested that appellant's attorney provide him with copies of appellant's medical reports, her theory of liability, support for special damages, and a settlement demand. On February 1, 1989, appellant's attorney advised Sitmar that the information was being organized and he would be "in touch." On April 25, 1989, appellant's attorney submitted to Sitmar some medical records and an itemized statement of medical bills, then totalling $775. The parties had no further contact. Accordingly on February 5, 1990, over a year from the alleged injury, the claims representative advised Princess to close its file.
However, on June 14, 1989, unbeknown to respondents, appellant's counsel had filed, but not served, the complaint in this action. In fact, appellant *1502 did not serve this lawsuit until September 7, 1990, almost 15 months after the complaint was filed and over 2 years after the incident.
What is significant here, however, is that service was made 14 months beyond a 1-year limitations period for service of process which appeared on the back of appellant's cruise ticket passage contract. For that reason, on December 13, 1990, respondents moved for summary judgment in the superior court on the sole ground appellant's action was barred by her failure to serve respondents within one year of the injury.
Provision No. 14 on appellant's cruise ticket passage contract was entitled "CLAIMS FOR INJURY OR DEATH" and provided in pertinent part: "Sitmar shall not be liable for and no suit shall be maintainable for injury or death to the passenger unless (A) the passenger has given notice to Sitmar in writing with full particulars within six (6) months after the injury or death; and (B) the passenger has commenced suit and served process regarding incidents of this nature within one (1) year." (Italics added.)
Provision No. 21 on the passage contract stated: "ENFORCEABILITY OF ENTIRE CONTRACT. If any terms or provisions of the contract are deemed invalid or unenforceable, the remainder of the contract and its application shall remain in full force and effect."
On February 4, 1991, the superior court granted respondents' motion for summary judgment. Appellant's motion for reconsideration was subsequently denied and, on March 21, 1991, judgment was entered in favor of respondents.
ISSUES
I. Is a clause in a cruise ticket passage contract, which provides that no suit may be maintained for injury or death to a passenger unless the passenger has commenced suit and served process within one year, lawful and enforceable as written? No.
II. Is that clause lawful and enforceable if the service of process provision is severed therefrom? Yes.
DISCUSSION
I. Standard of Review.
Since this case reaches us on appeal from a summary judgment in favor of respondents, we need only determine whether there is a possibility that *1503 appellant may be able to establish her case. (Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal. App.3d 331, 339 [138 Cal. Rptr. 670].)
(1) "Summary judgment is properly granted where the evidence in support of the moving party, here the respondents, is sufficient to establish a complete defense to appellant's claims and there is no triable issue of fact. [Citations.]" (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 362 [178 Cal. Rptr. 783, 636 P.2d 1121].)
On appeal from the grant of a summary judgment, the reviewing court must conduct a de novo examination to see whether the moving party is entitled to summary judgment as a matter of law or whether there are genuine issues of material fact. (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal. App.3d 205, 211-212 [285 Cal. Rptr. 717].)
II. That Portion of the Passage Contract Which Limits the Time for Service of Process Is Unlawful and Thus Unenforceable.
(2a) Appellant argues the requirement in the limitations clause that process be served within one year shortens the time for the commencement of the action to less than one year and for that reason the limitation is unlawful under 46 United States Code Appendix sections 183b and 183c (hereafter sections 183b and 183c). Specifically, appellant urges the clause is private legislation of a limitations period, which is prohibited by section 183b, and lessens, weakens or avoids the right of appellants to bring a bodily injury claim, which is prohibited by section 183c.
A. The Relevant Statutory Law.
Revised statutes section 4283A (46 U.S.C. Appen. § 183b) provides: "Stipulations limiting time for filing claims and commencing suit [¶] (a) It shall be unlawful for the manager, agent, master, or owner of any sea-going vessel ... transporting passengers ... from or between ports of the United States and foreign ports to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of, or filing claims for loss of life or bodily injury, than six months, and for the institution of suits on such claims, than one year, such period for institution of suits to be computed from the day when the death or injury occurred." (Italics added.)
Revised statutes section 4283B (46 U.S.C. Appen. § 183c) provides: "It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers ... to insert in any rule, regulation, contract, or *1504 agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner, master, or agent from liability ... for such loss or injury, or (2) purporting in such event to lessen, weaken, or avoid the right of any claimant to a trial by court of competent jurisdiction on the question of liability for such loss or injury.... All such provisions or limitations contained in any such rule, regulation, contract, or agreement are declared to be against public policy and shall be null and void and of no effect." (Italics added.)
B. The Relevant Case Law
(3) A passage contract on a cruise ship is a maritime contract, and its interpretation is governed exclusively by maritime or admiralty law. (The Moses Taylor (1867) 71 U.S. (4 Wall.) 411, 427 [18 L.Ed. 397, 401-402]; see Carnival Cruise Lines, Inc. v. Shute (1991) 499 U.S. 585, ___ [113 L.Ed.2d 622, 629, 111 S.Ct. 1522, 1525.) The validity of a passage contract provision is to be interpreted by the general maritime law of the United States, not state law. (McQuillan v. "Italia" Societa Per Azione di Navigazione (S.D.N.Y. 1974) 386 F. Supp. 462, 468, affd. (2d Cir.1975) 516 F.2d 896.) State courts, however, have concurrent jurisdiction with federal courts to entertain actions governed by maritime law. (D'Aquisto v. Campbell Industries (1984) 162 Cal. App.3d 1208, 1212 [209 Cal. Rptr. 108]; Intagliata v. Shipowners & Mer. etc. Co. (1945) 26 Cal.2d 365, 371 [159 P.2d 1].)
The only federal circuit court case we have found which interprets a passage contract limitations clause similar to the one in the instant lawsuit is Schwartz v. S.S. Nassau (2d Cir.1965) 345 F.2d 465, 468.[2] In that case, as here, the contract also had a severability clause. The court interpreted the contract's limitations clause with reference to section 183b, holding that, under the contract's severability clause, the service of process provision in the limitations clause was severable. When the offending language regarding *1505 service of process was thus severed, the "other clearly legal provisions of the contract" were found to be valid and enforceable. (345 F.2d at p. 468.)[3]
Respondents urge this court to ignore the precedent of Schwartz on the ground the United States Supreme Court recently addressed appellant's contentions in Carnival Cruise Lines, Inc. v. Shute, supra, 499 U.S. 585, and found a forum-selection provision in a passage contract was enforceable.
In Shute, cruise ship passengers brought an action against the defendant cruise line in the state of Washington, seeking damages for injuries sustained in a slip and fall accident. Defendant's motion for summary judgment was granted, on the ground the court lacked jurisdiction because the forum selection clause in the passage contract required that suit be brought in the state of Florida. The Supreme Court agreed, holding that (1) a forum selection clause in a passage contract, requiring litigation of all disputes in Florida, was reasonable and enforceable and (2) the forum selection clause did not violate section 183c, which prohibits vessel owners from inserting in any contract a provision depriving a claimant of trial "by court of competent jurisdiction" for loss of life or personal injury resulting from negligence.
Shute is readily distinguishable. (2b) First, in the instant case, the challenged limitations clause is not reasonable because it effectively shortens the time to institute suit, in violation of section 183b. That is so because a claimant cannot reasonably be expected to file suit and serve the defendant on the same day. Second, if the service of process provision is enforced, the limitations clause may deprive a claimant of a trial "by court of competent jurisdiction," in violation of section 183c.
Thus, in the instant case, when we subject the limitations clause to judicial scrutiny for "fundamental fairness," as required by Shute (499 U.S. at p. ___ [113 L.Ed.2d at p. 633, 111 S.Ct. at p. 1528]), the service of process provision of respondents' passage contract cannot stand. Therefore, we find that, as written, the limitations clause is unreasonable, unfair and violates the public policies set forth in sections 183b and 183c. However, the limitations provision challenged in the instant case is made valid and enforceable by *1506 simply severing therefrom the service of process language, pursuant to the teachings of the majority in Schwartz v. S.S. Nassau, supra, 345 F.2d 465.
(4) Even though federal statutory law is involved, in the absence of contrary provisions in the federal statute, the law of the state is controlling in all matters of practice and procedure. (Oldham v. Kizer (1991) 235 Cal. App.3d 1046, 1070 [1 Cal. Rptr.2d 195]; Bohme v. Southern Pac. Co. (1970) 8 Cal. App.3d 291, 297 [87 Cal. Rptr. 286].) (2c) Therefore, the statute controlling the time for service of process is California Code of Civil Procedure section 583.210, subdivision (a), which provides that a defendant must be served with the summons and complaint within three years after the complaint is filed. Since appellant served defendant with the summons and complaint 15 months after the complaint was filed, under the relevant limitations period of section 583.210, her action is not time barred.
In light of the foregoing discussion, the judgment must be reversed and the cause remanded to the trial court for further proceedings in accordance with the views expressed in this opinion.
DISPOSITION
The judgment is reversed and the cause remanded to the trial court with instructions. Appellant is awarded costs as the prevailing party.
Epstein, Acting P.J., and Vogel (C.S.), J., concurred.
NOTES
[*] Judge of the Municipal Court for the Los Angeles Judicial District sitting under assignment by the Chairperson of the Judicial Council.
[1] The Fairwind was then owned by Sitmar. Sitmar subsequently merged with Princess and the Fairwind was renamed the Dawn Princess.
[2] See the opinion for this case from the lower court, Schwartz v. S.S. Nassau (S.D.N.Y. 1963) 223 F. Supp. 374; and see the position advocated by the dissent in Schwartz v. S.S. Nassau, supra, 345 F.2d 465, which mirrors the position of the court in Barrette v. Home Lines, Inc. (S.D.N.Y. 1958) 168 F. Supp. 141. In Barrette, the court found the limitations clause invalid in its entirety. Respondents cite this court to Anschul v. Sitmar Cruises, Inc. (N.D.Ill. 1974) 67 F.R.D. 455, appeal dismissed, 544 F.2d 1364 (7th Cir.1976), certiorari denied, 429 U.S. 907 [50 L.Ed.2d 1899, 97 S.Ct. 272] (1976), and several other cases, urging that in those cases the courts held that a clause similar to the one questioned here was binding. Those cases, however, are inapposite. Neither Anschul, nor any of the other cases cited by respondents, treats with the issue at bench, whether a service of process limitation violates sections 183b and 183c.
[3] In Schwartz, unlike the instant case, the limitations clause made specific reference to section 4283A (46 U.S.C. Appen. § 183b). Therefore, the court interpreted the phrase "and process served" to incorporate the statute by reference so that the phrase would then read "and process served where suit must be instituted by service of process." (345 F.2d at p. 486 italics omitted.) As thus interpreted, the clause would accommodate New York procedure where an action is commenced for the purpose of tolling the statute of limitations, not as under the federal rule by the filing of a complaint, but by the service of process. (See id. at pp. 467-468.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338465/ | 105 S.E.2d 630 (1958)
HOPE NATURAL GAS COMPANY, a Corporation,
v.
WEST VIRGINIA TURNPIKE COMMISSION.
C. C. No. 842.
Supreme Court of Appeals of West Virginia.
Submitted September 10, 1958.
Decided November 18, 1958.
Rehearing Denied February 6, 1959.
*631 Charles E. Anderson, Charleston, Hardin R. Harmer, Harold M. Garrett, Thomas A. White, Clarksburg, for plaintiff.
Jackson, Kelly, Holt & O'Farrell, W. T. O'Farrell, Charleston, for defendant.
W. W. Barron, Atty. Gen., Virginia Mae Brown, Asst. Atty. Gen., amici curiae; on behalf of West Virginia Turnpike Commission.
Vincent V. Chaney, Charleston, amicus curiae on behalf of S. J. Groves & Sons Co.
DUCKER, Judge.
The Hope Natural Gas Company, a corporation, plaintiff, brought this action of trespass on the case, against the defendant, West Virginia Turnpike Commission, a commission created by and under the laws of the State of West Virginia, in the Circuit Court of Kanawha County, alleging damages in the sum of $35,000 resulting from the defendant's negligence in so constructing its turnpike at the point of a pipe line relocation easement as to cause slips and slides from the turnpike which destroyed plaintiff's pipe line. The defendant demurred to the plaintiff's declaration, and the circuit court sustained the demurrer and certified the questions raised thereon to this Court.
The facts as alleged by plaintiff, and which upon demurrer are considered as true, are briefly: that, as a natural gas public utility corporation, it is, and has been, engaged in the business of producing, purchasing, storing and transporting natural gas and of distributing and marketing the same to domestic, commercial and industrial consumers and other purchasers thereof in West Virginia, and that in said business it operates a pipe line partly sixteen and partly twelve inches in diameter known as its Line H-164, which is more than 3500 feet in length extending from a junction point near the town of Glasgow, Kanawha County, to the plaintiff's Stonewall Jackson Compressor Station near Chelyan in said county, and that said pipe line transports natural gas in quantities in excess of one and one-half billion cubic feet annually, on, over and through a tract *632 containing approximately 307 acres now and formerly owned by Shonk Land Company which company granted duly recorded easement rights to plaintiff in 1925; that the defendant initiated a plan for the construction of its turnpike from Charleston to Princeton, West Virginia, and obtained from plaintiff in June 1953 the right of immediate entry upon the lands and easements of plaintiff for which defendant agreed to pay compensation to plaintiff for the rights taken and further to grant plaintiff rights of way for the plaintiff to relocate its said pipe line, and under separate utility agreements defendant agreed to reimburse plaintiff for the reasonable and necessary actual cost of removal, relocation and reconstruction of said pipe line, all in accordance with plans of relocation agreed upon between the parties, and that said pipe line relocation was in due course accomplished to the satisfaction and approval of defendant and that plaintiff was reimbursed by defendant for such removal and relocation costs; that near Glasgow plaintiff's said Line H-164 lies at the foot of a steep mountain, and after crossing the Chesapeake and Ohio Railway Company's tracks, continues over and across the Shonk tract of land up the mountainside in a general northwesterly direction and the turnpike traverses the Shonk tract in a general northerly direction crossing Line H-164 at approximately right angles and about one-fourth of the distance up the mountainside from Cabin Creek at the foot of the mountain; that the entire mountainside is steep and precipitous and that defendant was compelled to and did make excavation into the mountainside for the purpose of providing a roadbed for the turnpike, and that in doing so defendant removed large quantities of rock and earth which it deposited on the mountainside below and adjacent to the roadbed of the turnpike with the turnpike being constructed upon a bench so made by such removal and deposit; that the defendant knew that if large quantities of rock and earth were cut from the mountainside and deposited in a fill below the roadbed such earth and rock, if not properly buttressed and supported, would break away if reasonable care were not used to prevent it, and that because of the negligence of the defendant in so constructing its turnpike large quantities of earth and rock so deposited by defendant did break away under and below the paved portion of the turnpike on the downhill side thereof and such rock, earth and fill slipped and slid down upon, underneath, along and over plaintiff's pipeline H-164, covering said line fifteen to twenty feet at some points, breaking it and rendering it unfit and entirely useless for its purpose and necessitating the acquisition of additional rights of way for a relocation of and construction of a new line to serve the purpose of the line so destroyed; and that defendant is liable to plaintiff for all its damages so suffered.
The defendant's demurrer specifies four grounds, namely: "1. Defendant is an agency of the State of West Virginia. 2. The construction, repair, maintenance and upkeep of the West Virginia Turnpike constituted an essential governmental function. 3. This action is in truth and effect an action against the State of West Virginia and as such is inhibited by the Constitution of the State of West Virginia. 4. The defendant as an agency of the State of West Virginia is immune from suit."
The Certificate of the Circuit Court sustaining the demurrer sets out in practically the same language as the demurrer certified for decision by this Court four points which are collectively contained in the decision therein holding that an action in tort seeking to recover unliquidated damages is not maintainable against the Turnpike Commission, the effect of which is to hold that the West Virginia Turnpike Commission is entitled to immunity from such suit in tort actions, either under Article VI, Section 35 of the Constitution of West Virginia or otherwise under the law as an agent of the state exercising, under sovereign power, a governmental function. Although various phases of the principles involved have *633 been heretofore decided by this Court, the facts in such cases being in varying degrees different from those here, this case is one of somewhat novel impression for this Court.
The plaintiff's declaration states a good cause of action unless the Turnpike Commission is immune as claimed by defendant in its demurrer. The applicable provisions of the constitution and statutes are so vital to the issue that it is well to set them out here so as to show the basis for the contentions of the parties.
Section 35, Article VI of the Constitution of West Virginia, omitting the part thereof which clearly has no applicability here, is as follows:
"The State of West Virginia shall never be made defendant in any court of law or equity * * *".
The West Virginia Turnpike Commission was created by the Acts of the Legislature of West Virginia, 1947, Chapter 139, [Michie's Code, § 1659(1) et seq.] and amendments to said original Act were made by Chapters 154, 155 and 156 of the Acts of the Legislature of West Virginia, 1955. The portions of the provisions of the twenty sections of those statutes, as amended, so far as the same are pertinent to the argument and inquiry here, and, omitting such parts of context as we think are unnecessary, are as follows:
"Section 1. Constructing and Financing Turnpike Projects.* * * the West Virginia turnpike commission (hereinafter created) is hereby authorized and empowered to construct, maintain, repair and operate turnpike projects (as hereinafter defined) at such locations as shall be approved by the state road commission, and to issue turnpike revenue bonds of the state of West Virginia, payable solely from revenues, to pay the cost of such projects.
"Sec. 2. Credit of State Not Pledged.Turnpike revenue bonds issued under the provisions of this act shall not be deemed to constitute a debt of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any such political subdivision, but such bonds shall be payable solely from the funds herein provided therefor from revenues. All such turnpike revenue bonds shall contain on the face thereof a statement to the effect that neither the state nor any political subdivision thereof shall be obligated to pay the same * * *.
"Sec. 3. West Virginia Turnpike Commission.There is hereby created a commission to be known as the `West Virginia Turnpike Commission', and by that name the commission may sue and be sued, and plead and be impleaded. The commission is hereby constituted an agency of the state, and the exercise by the commission of the powers conferred by this act in the construction, operation and maintenance of turnpike projects shall be deemed and held to be an essential governmental function of the state.
"The West Virginia turnpike commission shall consist of five members including the state road commissioner, who shall be a member ex officio [sic], and four members appointed by the governor, by and with the advice and consent of the senate. * * *
"The members of the commission shall not be entitled to compensation for their services but each member shall be reimbursed for his actual expenses necessarily incurred in the performance of his duties. All expenses incurred in carrying out the provisions of this act shall be payable solely from funds provided under the authority of this act and no liability or obligation shall be incurred by the commission hereunder beyond the extent to which moneys shall have been provided under the authority of this act.
* * * * * *
*634 "Sec. 5. General Grant of Powers. * * * "(g) To fix and revise from time to time tolls for transit over each turnpike * * *;
"(h) To acquire, hold and dispose of real and personal property in the exercise of its powers and the performance of its duties under this act;
"(i) To acquire in the name of the state by purchase or otherwise, on such terms and conditions and in such manner as it may deem proper, or by the exercise of the right of condemnation in the manner hereinafter provided, such public or private lands, including public parks, playgrounds or reservations, or parts thereof or rights therein, rights-of-way, property, rights, easements and interests, as it may deem necessary for carrying out the provisions of this act: Provided, however, That no compensation shall be paid for public lands, playgrounds, parks, parkways or reservations so taken, and that all public property damaged in carrying out the powers granted by this act, shall be restored or repaired and placed in its original condition as nearly as practicable; * * *
"Sec. 6. Incidental Powers.* *
"If the commission shall find it necessary to change the location of any portion of any public road or state highway, it shall cause the same to be reconstructed at such location as the commission shall deem most favorable and of substantially the same type and in as good condition as the original road or highway. The cost of such reconstruction and any damage incurred in changing the location of any such road or highway shall be ascertained and paid by the commission as a part of the cost of such turnpike project.
* * * * * *
"Sec. 9. Turnpike Revenue Bonds. The commission is hereby authorized to provide by resolution, at one time or from time to time, for the issuance of turnpike revenue bonds of the state for the purpose of paying all or any part of the cost of any one or more turnpike projects. The principal of and the interest on such bonds shall be payable solely from the funds herein provided for such payment. * * *
"Sec. 10. Trust Agreement.In the discretion of the commission any bonds issued under the provisions of this act may be secured by a trust agreement by and between the commission and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without the state. Any such trust agreement may pledge or assign the tolls and other revenues to be received, but shall not convey or mortgage any turnpike project or any part thereof. * * *
"Sec. 11. Revenues.The commission is hereby authorized to fix, revise, charge and collect tolls * * *. Such tolls shall not be subject to supervision or regulation by any other commission, board, bureau or agency of the state. * * *
* * * * * *
"Sec. 14. Exemption from Taxation. * * * the commission shall not be required to pay any taxes or assessments upon any turnpike project or any property acquired or used by the commission under the provisions of this act or upon the income therefrom, * * *.
"Sec. 15. Miscellaneous. * * *
"All private property damaged or destroyed in carrying out the powers granted by this act shall be restored or repaired and placed in its original condition as nearly as practicable or adequate compensation made therefor out of funds provided under the authority of this act.
*635 "All counties, cities, villages, townships and other political subdivisions and all public agencies and commissions of the state of West Virginia, notwithstanding any contrary provision of law, are hereby authorized and empowered to lease, lend, grant or convey to the commission at its request upon such terms and conditions as the proper authorities of such counties, cities, villages, townships, other political subdivisions or public agencies and commissions of the state may deem reasonable and fair and without the necessity for any advertisement, order of court or other action or formality, other than the regular and formal action of the authorities concerned, any real property which may be necessary or convenient to the effectuation of the authorized purposes of the commission, including public roads and other real property already devoted to public use.
"Sec. 16. Cessation of Tolls.When all bonds issued under the provisions of this act * * * such project or projects, if then in good condition and repair to the satisfaction of the state road commission, shall become part of the state road system and shall thereafter be maintained by the state road commission free of tolls: * * *
"Sec. 17-a. Turnpike Part of State Road System; Pledge of Limited Funds by State Road Commission in Case of Deficit. * * * Any other provisions of this article to the contrary notwithstanding, in order to encourage the development of the state road system, the state road commission is authorized in its discretion to pledge by resolution and agreement annually to pay from the state road fund, subject to all prior commitments of such fund which shall be stated in the resolution and agreement, the amount of any yearly deficit between the principal and interest requirements of any turnpike project or portion thereof hereafter constructed * * *
* * * * * *
"Sec. 20. Act Liberally Construed; Constitutional Construction; Inconsistent Acts Repealed.This act, being necessary for the welfare of the state and its inhabitants, shall be liberally construed to effect the purposes thereof."
To sustain its claim of defendant's liability, the plaintiff lays special emphasis upon the following words or provisions in the statute, namely: (1) that in Section 3 the Commission is created and authorized to sue and be sued, plead and be impleaded, and is empowered to construct, maintain, repair and operate turnpike projects to facilitate vehicular traffic in the state, and in Section 1 authorized "to issue turnpike revenue bonds of the state of West Virginia, payable solely from revenues, to pay the cost of such projects;" (2) that under Section 2 turnpike revenue bonds shall not be deemed to constitute a debt of the state or a pledge of the faith or credit of the state, but shall be payable solely from the funds therein provided therefor from revenues, and that the bonds shall show such fact on their face; (3) that under Section 5 the Commission from time to time shall fix the tolls and employ all necessary employees and agents and fix their compensation; (4) that under Section 9 the proceeds of the bonds shall be used solely for the payment of the cost of the turnpike and all tolls shall be so fixed and adjusted as to provide a fund sufficient with other revenues, if any, to pay the cost of maintenance and operation of the turnpike project and the principal and interest on such bonds, and all such moneys from bonds or tolls shall be deemed to be trust funds for such purposes; (5) that under Section 13 suits at law or in equity may be brought by any holder of bonds or a trustee in any trust agreement to protect and enforce any right under the laws of the state or granted thereunder in or under a trust agreement covering such bonds or the duty of the Commission to fix proper tolls; and (6) that Section 15 of the Act requires that all private property *636 damaged or destroyed shall be restored or repaired and placed in its original condition as nearly as practicable or adequate compensation made therefor out of funds provided under the authority of the Act.
To sustain its claim of immunity defendant lays special emphasis upon the following words or provisions in the statute creating the Turnpike Commission, namely: (1) that in Section 3 the Commission is constituted an agency of the state and the exercise by the Commission of the powers conferred shall be deemed and held to be an essential governmental function; (2) that under Section 14 of the Act the project and property of the Commission are exempt from taxation; (3) that under Section 3 the members of the Commission, except the State Road Commissioner, who is a member ex officio, are appointed by the Governor with the advice and consent of the Senate; (4) that the bonds issued by the Commission are described as "bonds of the state of West Virginia"; (5) that under Section 5 the property acquired by the Commission is to be acquired in the name of the state, and that no compensation is to be paid for public lands taken by the Commission; (6) that under Section 6 the Commission is given authority to construct grade separations at intersections with public roads and to change lines and grades of such roads, that upon request of the Commission the State Road Commission shall relocate or discontinue any road or highway, and that the State consents to the use of all lands owned by it which the Commission deems necessary for the construction or operation of any turnpike project; (7) that under Section 7 the Commission is authorized to acquire property by purchase and to take title thereto in the name of the state; (8) that under Section 9 the Commission may sell such bonds for such price "as it may determine to be for the best interests of the state"; (9) that under Section 15 all counties, cities and other political subdivisions are empowered to lease, lend, grant and convey to the Commission any real property, including public roads, already devoted to public use; (10) that under Section 17 the State Road Commission is authorized to spend moneys for the study of any turnpike project and to use its engineers for such purpose and to pay for additional expert advice; and (11) that under Section 17-a when a turnpike project has been paid for, if such project is then in good condition and repair to the satisfaction of the State Road Commission, such project shall then become part of the State Road system.
In addition to the recital of or reference to the foregoing provisions of the statute, counsel, in their respective briefs, have cited and given their interpretations of the holdings in practically all of the decisions of this Court pertaining in some degree or another to this subject, but we do not deem it necessary in this opinion to resort to a lengthy review of the same. The facts upon which the principles of the law are applicable are always varying and distinguishing. The principles are the criteria. The learned Judge in the court below has ably discussed and interpreted many of the cases pertaining to the subject matter, and, although we are unable to agree with his conclusion, we respect his viewpoint most highly and concede the question may be quite debatable. Our decision is in the final analysis one of applicability of the controlling principle rather than one of analogy of this case to the facts of the cases in prior decisions.
The first ground of the demurrer is only that the defendant is an agency of the state. Such, in a limited sense, is true, but an agency may have sovereign powers and not necessarily have the sovereign's immunity. The state has created many agents for public purposes, which agents exercise either proprietary or governmental functions, or both of such functions. In most instances, wherever the function from which the claim arises is purely governmental there *637 is immunity from suit, but wherever the function is purely proprietary, there is no immunity. Such is, as we know, the situation with respect to the acts of municipal corporations which are units or branches of or "agents" exercising police power and other sovereign powers of the state as delegated to them by the legislature. This Court has decided numerous cases in which it has determined the question of liability or immunity according to whether the entity was governmental or proprietary. Hayes v. Cedar Grove, 126 W.Va. 828, 30 S.E.2d 726, 156 A.L.R. 702; Shaffer v. Monongalia General Hospital, 135 W.Va. 163, 62 S.E.2d 795; Van Gilder v. Morgantown, 136 W.Va. 831, 68 S.E.2d 746. But in cases where such entity or agent has been held entitled to immunity, there has been, almost without exception, involved a commission or entity which was dependent in a large degree, if not wholly, upon the revenues of the state for its establishment, maintenance and operation, and which dependency, though not always clearly specified in such cases as controlling, was nevertheless a most important factor therein in the determination of the applicability of the sovereign or constitutional immunity. Cases involving only the exercise of a proprietary function by a truly governmental agency or branch of the state government hold that such agency or branch is clearly without immunity. The real difficulty in the matter has been in determining whether a commission or other quasi public body created by the legislature is in fact an agent of the state exercising sovereign powers delegated to it. Even without the constitutional inhibition against making the state a defendant in any suit, there is no right to sue a state upon a claim arising from the exercise of its governmental functions unless by consent of the state. In states without a constitutional restriction, the legislature may be free to waive the state's sovereign immunity, but in West Virginia the constitutional provision cannot be disregarded and the state or its real agent functioning governmentally cannot be subjected to suit. Ward v. County Court, 141 W.Va. 730, 93 S.E.2d 44.
The second ground of the demurrer is that the construction, repair, maintenance and upkeep of the West Virginia Turnpike constituted an essential governmental function. Defendant argues that the various provisions of the statute creating the Commission show that the things which the Commission does are governmental, that the building and maintenance of roads have always been considered such a purpose and that all the rights and powers hereinbefore enumerated as given to the Commission prove it to be an agent of the state exercising governmental functions. While it is true that the legislature has specified that the Commission is an agency of the state and that the exercise by the Commission of the powers conferred upon it shall be deemed and held to be an essential governmental function, this declaration alone cannot make it so, if the factual realities are otherwise. State ex rel. Adkins v. Sims, 127 W.Va. 786, 34 S.E.2d 585. Nor is it sufficient, we think, that simply because the function is governmental, the immunity rule is applicable. The constitutional provision does not limit the power of the state to delegate governmental functions to quasi public corporations which have no taxing power or dependency upon the state for their financial support or success. Yet such corporations are afforded no immunity from suit or liability. The nature of the function is controlling only when it is performed by what can be truly said to be the state itself, that is, such a branch or agency of the state as is dependent upon the state government for financial support for its existence. A municipal corporation is, of course, such an agency, and the nature of the function determines the question of liability, while a railroad company, even though performing a service which could be classified as governmental if performed by a state agency, has no immunity. A state has the right to exercise all its governmental functions and, in the interest of public welfare, various proprietary functions, but unless there is a constitutional requirement to be met, it is free to delegate either governmental or proprietary functions to either public or *638 quasi public corporations. So then the second ground of the demurrer is not well taken unless the third ground is maintainable.
The third ground of demurrer is that this action is in truth and in effect an action against the State of West Virginia and is inhibited by the Constitution. The fourth ground is the consequential result of a conclusion that the third ground is true. This ground narrows the issue to the practical and legal question of the status of the West Virginia Turnpike Commission. Is it the State or the alter ego of the State? We do not think so.
The various phases and provisions of the statute creating and empowering the Commission, which we have hereinabove set forth as emphasized by the parties, are the most pertinent factors in the determination of the status of the Commission and the mere statement of them is argument and needs little repetition.
The contentions of defendant that the officers of the Commission are appointed by the Governor, that no compensation is to be paid to the state for public lands taken by the Commission, that public road intersections may be changed, that municipalities may lease, lend or grant property to the Commission and that the State Road Commission may spend moneys for the study of any turnpike project and use its engineers for such purpose are of much substance. On the other hand, the contentions of the plaintiff that the Commission is authorized to issue turnpike revenue bonds of the state, payable solely from revenues to pay the cost of the project, that such bonds shall not be deemed to constitute a debt of the State or a pledge of the faith and credit of the State but shall be payable solely from the funds provided therefor from revenues, and that all tolls shall be so fixed and adjusted by the Commission to provide sufficient funds to pay the bonds and the operation and maintenance of the turnpike, and that adequate compensation for private property damaged or destroyed or not restored to or placed in its original condition shall be made out of the funds provided for in the statute are also of much substance.
That the purpose of the creation of the Commission and its functions are public ones, and the donation of property for the purpose and the retention by the State of authority to name the members of the Commission do not destroy its status as a separate entity, nor do such incidents retain to the state its sovereignty in the matters delegated. Retention of title in the state to lands used is more of a protective feature to avoid the loss of the property than evidence of the retention of sovereignty or control of operation, as such retention of title will enable the state to retake possession after the project shall have been completed. The benefits enuring to the state by the construction and operation of a turnpike would certainly seem to justify donations of property for a public use. It is well settled that money, which is property, may be appropriated or given for a public purpose. State ex rel. Summers v. Sims, 142 W.Va. ___, 97 S.E.2d 295, and cases cited therein.
The provisions of the statute clearly show that the Commission is an entity or quasi public corporation with the power to sue and be sued, to hold and acquire property including the right to do so by the exercise of the power of eminent domain, and to compensate for damages to private property solely from the revenues derived from tolls or other income as fixed and determined by the Commission, without any liability on the State or any pledge of its faith and credit.
A review of the principal cases which have been cited by counsel discloses, in the main, only that when there has or has not been immunity afforded an agency of the state it was because such agency was or was not exercising a governmental function. Ward v. County Court, supra, and the many cases cited therein. In the *639 case of City of Charleston v. Southeastern Construction Company, 134 W.Va. 666, 64 S.E.2d 676, it was held that the State Office Building Commission is a state agency and immune from suit, and the fact that the Commission's purpose was to house state agencies which are supported by state funds affords a distinctive aspect of that case from this case, although that case is concededly a somewhat borderline decision.
In determining whether a commission or other body or entity created by the state is in truth and effect a part of the state, all of the features or characteristics must be considered and consequently each case must rest upon the provisions of the entity's own creation. A turnpike commission may well be an independent agency in one state and not in another. However, we are not without authority on the subject. In Pennsylvania where the legislative act creating the Pennsylvania Turnpike Commission, which is almost in identical language as our statute and which was enacted in 1937, it was held in the case of Ewalt v. Pennsylvania Turnpike Commission, 382 Pa. 529, 115 A.2d 729, that the Commission was not immune from suit for damages for a continuing trespass arising out of the Commission's construction, operation and maintenance of the turnpike. And it has likewise been held in Illinois in the case of People v. Illinois State Toll Highway Commission, 3 Ill. 2d 218, 120 N.E.2d 35, and in Missouri, in the case of State ex rel. State Highway Commission v. Bates, 317 Mo. 696, 296 S.W. 418, that the Commissions, parties in said suits, were not entitled to immunity because they were separate entities and not the sovereign state. Although there is a provision in the Constitution of Illinois similar to that in West Virginia, but no such provision in Missouri, the principle is, we think, the same, although in the Missouri case the court did say that, in addition to its principal reason for so holding, the State had waived its immunity. In the opinion in the case of People v. Illinois State Toll Highway Commission, supra [3 Ill. 2d 218, 120 N.E.2d 41], the Court said:
"The multiplicity of factors which the courts have considered in reaching a decision of this question makes it impracticable to extract a simple rule which will fit every situation. The factor entitled to most weight, in our opinion, is that under no circumstances can the general funds of the State be reached in order to satisfy an obligation of the commission. That factor, together with the largely independent control of the commission over the construction and maintenance of the proposed toll roads, permits it to be regarded as an independent entity so far as subjection to suit is concerned. The extent to which the commission would or would not be immune to actual liability in any particular action is of course not now before us. Our decision is simply that the constitution does not forbid it to be made a party defendant."
Although the early case of Tompkins v. Kanawha Board, 19 W.Va. 257, is greatly relied upon by counsel for the plaintiff and strongly supports liability on the part of the defendant, the only case in this State involving the question of liability of and lack of immunity in the West Virginia Turnpike Commission is that of Guaranty Trust Co. v. West Virginia Turnpike Commission, 109 F. Supp. 286, decided by the District Court of the United States for the Southern District of West Virginia in 1952. In both the Tompkins case and the Guaranty Trust Company case immunity was denied, and we agree with the decisions therein.
It is not amiss to comment on Section 15 of the Act which specifically provides for compensation to be made for the damage to private property. Surely this means more than any mere declaration of governmental functioning, and also more than the possible remedy afforded by any hopeful *640 later appropriation to pay a moral obligation, or the possibility of an enforced eminent domain proceeding in a proper case. This provision of this section, which in effect can be said to constitute waiver of immunity, substantiates the theory of the independence of the Commission, and by virtue of such provision, being for reasons herein stated not in contravention of Section 35, Article VI of the Constitution, the plaintiff is given a right of action against the Commission for the alleged damage and destruction of its property.
We conclude with the thought that morality is just as much to be practiced by the state in its creation and operation of any separate entity for special purposes, whether public or not, as the state demands and expects of its citizens, and the following quotation from the opinion of Judge Johnson in the case of Tompkins v. Kanawha Board, supra, 19 W.Va. at pages 263 and 264, is appropriate:
"It seems to me the test is, was there a corporation created charged with a duty and with rights and franchises incident to corporations, among which is the right to sue, without which the corporation would be without vitality, and the corresponding liability to be sued, without which it would be a legalized despot trespassing upon the rights of the citizens, who would be powerless to protect themselves. The State creates no such irresponsible entity. The Legislature never intended, that such corporations should be without legal liability, notwithstanding the State owns its property. * * * It would be against all our ideas of State government, if a corporation created by the State to carry on a work of improvement should not be liable like any other corporation for the damage it inflicted, notwithstanding the State might own the property of the corporation. Sovereignty does not reside in such a corporation. The State cannot delegate her sovereignty. There is no creature of the State above the law and irresponsible. If this were so, the corporation might deny to certain individuals all benefits to be conferred by the corporation, and yet it being sovereign or representing sovereignty it could not be sued."
For the reasons stated, we are of the opinion and so hold that the question, collective in form, certified to this Court, whether a plaintiff's action in tort seeking to recover unliquidated damages is maintainable against the defendant, is answered in the affirmative, and accordingly, the ruling of the Circuit Court of Kanawha County in sustaining defendant's demurrer to the plaintiff's declaration is reversed.
Ruling reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632540/ | 150 P.3d 58 (2006)
HUNT
v.
HUNT.
No. 20060422.
Supreme Court of Utah.
July 21, 2006.
Petition for certiorari denied. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337782/ | 124 Ga. App. 71 (1971)
183 S.E.2d 212
GIBBONS
v.
ATLANTIC STEEL COMPANY et al.
46066.
Court of Appeals of Georgia.
Argued March 8, 1971.
Decided June 8, 1971.
Rehearing Denied June 29, 1971.
Burdine & Freeman, Essley B. Burdine, for appellant.
Jones, Bird & Howell, Peyton S. Hawes, Jr., Ruth H. Gershon, *73 Telford, Stewart & Stephens, J. Douglas Stewart, Shulman, Alembik & Rosenbluth, for appellees.
HALL, Presiding Judge.
Widow-claimant appeals from the judgment of the superior court affirming an award of the State Board of Workmen's Compensation to another "widow."
For the sake of clarity, we shall call the two widows by their first names. Frances married the deceased employee in 1937. They lived together in Atlanta for two years and then he left her. He never attempted to return and she never attempted to find or rejoin him. Four or five years later she moved to Macon. From the time of their separation, she was never actually dependent upon him. In 1941, and unfortunately without benefit of divorce, he entered into a ceremonial marriage with Jessie. They had children and lived together until his death in November of 1966. In December, the board approved an agreement between Jessie and his employer under which the medical and funeral bills were paid and she received weekly compensation benefits until May of 1967. At this time Frances filed her claim and request for hearing.
Jessie was not made a party to this claim, so after hearing, the deputy director found that while Jessie's rights under the agreement were unaffected, Frances had established herself as the legal widow and was entitled to compensation. Faced with two awards, the employer promptly discontinued payments and appealed to the full board. It set aside the award to Frances (because Jessie was not a party) and remanded the matter to the deputy director to determine whether the agreement should be set aside. Another hearing was duly held in February 1968. No one present had any clear idea of what was supposed to be accomplished and the only new evidence taken was Jessie's marriage certificate. The matter went back to the full board. In August 1969, a majority found that since the evidence indicated the separation was agreeable to both parties, Frances had voluntarily abandoned her husband and was therefore not a presumptive dependent entitled to compensation. It further found that it had no authority to set aside the agreement between Jessie and the employer and ordered the employer to resume payments. The chairman dissented to both findings.
*72 Frances appealed to the superior court and then to this court.
Unlike most states which use an actual dependency text, the Georgia Act conclusively presumes the dependency of the legal wife unless she has voluntarily abandoned or deserted her husband. Code § 114-414; Williams v. American Mut. Liab. Ins. Co., 72 Ga. App. 205 (33 SE2d 451). A legal wife who files a claim within one year of her husband's death has priority in the payment of death benefits to the exclusion of all other, or secondary dependents. O'Steen v. Florida Ins. Exchange, 118 Ga. App. 562 (164 SE2d 334). The board labored mightily to find an "abandonment" by Frances but the meaning of the word cannot be stretched that far. The board's conclusion (that she was perfectly happy to see her husband go) may be quite correct, but it does not turn her passivity into an active abandonment. A woman is not required by law to dog the heels of a fleeing spouse upon peril of being held the deserter herself. For a more extreme example of no abandonment see Gibbons v. Maryland Cas. Co., 114 Ga. App. 788 (152 SE2d 815), certiorari denied 114 Ga. App. 885.
The only appeal and enumeration of error on the board's refusal to set aside the award to Jessie is by Frances. Since we have now held she is entitled to an award, the issue of the prior award is moot as to her.
The result in this case manifestly violates the spirit and purpose of the Act which is "to alleviate human suffering and to contribute to human need when accidental injury is suffered..." Lumbermen's Mut. Cas. Co. v. Griggs, 190 Ga. 277, 288 (9 SE2d 84). Instead Frances will get a windfall because her husband fortuitously neglected to get a divorce 32 years ago.
That part of the judgment affirming the board's denial of the claim of Frances Gibbons is hereby reversed. Eberhardt, J., concurs. Whitman, J., concurs specially.
EBERHARDT, Judge, concurring.
I concur in the opinion and judgment, and call attention to the case of Insurance Co. of N. A. v. Jewel, 118 Ga. App. 599 (164 SE2d 846), since I think it has bearing on the issues in this case.
WHITMAN, Judge, concurring specially. While I do not agree with all of the language set forth in the original opinion, I concur in the judgment reversing that part of the judgment affirming the board's denial of the claim of Frances Gibbons.
While the opinion of the full board of date November 21, 1967, stated that the board was of the opinion that the previous hearing before and the award of the deputy director was of no effect, that order of the full board was set aside by its order of date November 28, 1967, and the case remanded to the deputy director merely for the purpose of taking additional evidence and, therefore, the evidence before the deputy director on the original hearing before the deputy director remained in force and effect when the case again came before the full board, resulting in a majority judgment denying the claim of Frances Gibbons and directing continuance of payments to Jessie Bell Gibbons. However, by reference to the testimony of Frances Gibbons on the original hearing, still a part of the record, which is undisputed, it will be noted that John R. Gibbons, the deceased, voluntarily deserted her without cause and did not thereafter contribute to her support, and that she did not abandon him. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337783/ | 124 Ga. App. 265 (1971)
183 S.E.2d 506
SMITH REALTY COMPANY et al.
v.
HUBBARD.
46171.
Court of Appeals of Georgia.
Submitted May 3, 1971.
Decided June 14, 1971.
Rehearing Denied July 15, 1971.
Wiggins & Smith, Walter A. Smith, for appellants.
Crowe & Martin, Arthur L. Crowe, Jr., for appellee.
DEEN, Judge.
1. The defendant is designated in the complaint as "Mrs. Evelyn Lovinggood Hubbard as Administratrix de bonis non with will annexed of the estate of Elmo Lovinggood," process issued designating her in the same terminology, service of process is upon her "et al.," the certificate of service of the notice of appeal shows service by mail on the attorney of record of Mrs. Hubbard as such administratrix, and the complaint states that "at all times herein mentioned, defendant was acting in her representative capacity as such administratrix and in the proper exercise of powers and authority granted by said will."
The contract upon which the complaint is grounded is signed "Mrs. Evelyn Lovinggood Hubbard, Administrator of Lovinggood Estate," and the subject matter of the contract is real property of the Lovinggood estate. From all of the above it is obvious that the action is intended against Mrs. Hubbard in her representative and not in her individual capacity. Hamilton v. Speck, 166 Ga. 667 (1) (144 S.E. 204); Walden v. Nichols, 204 Ga. 532 (1) (50 SE2d 105); Harrison v. Harrison, 214 Ga. 393 (5) (105 SE2d 214).
2. Code § 113-1713 provides in part: "An administrator may not bind the estate by any warranty in any conveyance or contract made by him." It was the rule at common law that neither an executor nor an administrator could bind the estate by warranty of title, and the language of this section has been applied to administrators and executors equally, the inclusion of the Code section doing no more than to limit the liability of the fiduciary in his individual capacity. See Baxter & Co. v. Camp, 126 Ga. 354, 361 (54 S.E. 1036). "Neither an executor nor an administrator can bind the estate by any warranty in any contract of conveyance." Redfearn, Wills and Administration in Georgia (3d Ed.), § 317, p. 218.
3. However, this is not to say that an administratrix with the will annexed cannot by administrator's deed convey good and marketable title to real estate owned by the decedent, or that if she did so she would be subject to an action at law because in the sale contract she had in her representative capacity signed a *266 contract of sale containing a general warranty of title. The fact that she acted in such representative capacity appears on the face of the instrument, and all parties are presumed to know the law, and to know to what extent the personal representative of the decedent may bind the estate. The complaint here is bottomed upon the allegation that the purchaser refused to buy the real estate because the administratrix "was unable to convey good and marketable title to the property contracted to be sold," and that the purchaser was ready, able, and willing to purchase upon the furnishing of such title. Under these circumstances the real estate agent would be entitled to his commissions under the terms of the contract. Goldgar v. North Fulton Realty Co., 106 Ga. App. 459 (127 SE2d 189); Roberts v. J. L. Todd Auction Co., 120 Ga. App. 444 (170 SE2d 862).
The grant of the defendant's motion to dismiss on the ground that the complaint failed to state a claim on which relief could be granted was error.
Judgment reversed. Bell, C. J., and Pannell, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338260/ | 270 S.C. 647 (1978)
244 S.E.2d 217
Palmer A. DUCKWORTH, Appellant,
v.
Carl CAMERON and Katherine A. Cameron, Respondents.
20675
Supreme Court of South Carolina.
May 3, 1978.
*648 James C. Cothran of Johnson, Smith, Hibbard & Cothran, Spartanburg, for appellant.
Ben C. Harrison of Burts, Turner, Hammett & Harrison, Spartanburg, for respondents.
May 3, 1978.
RHODES, Justice:
The only question presented on this appeal is whether a licensed residential home builder is precluded from enforcing a contract entered into in violation of the Residential Home Builders Act.[1]
The facts are undisputed. The appellant, a residential home builder, and the respondents entered into a contract for the construction of a house. At the time, the appellant was not licensed by the South Carolina Residential Home Builders Commission as required by S.C. Code § 40-59-70 (1976) and was in violation of the Residential Home Builders Act.
Just prior to the completion of the house, the appellant obtained a license. As the result of a dispute which arose during construction of the house, the appellant instituted the present action to foreclose a mechanic's lien. Upon motion of the respondents, the lower court granted summary judgment in their favor holding the appellant was barred from bringing suit on the contract since he was unlicensed at the time he entered into the contract.
South Carolina Code § 40-59-130 provides, in part, that "[n]o residential home builder who does not have the license *649 required herein may bring any action either at law or in equity to enforce the provisions of any contract for residential home building which he entered into in violation of this chapter."
As a general rule, when a statute is plain and unambiguous, it should be applied literally because the legislative design is unmistakable. Martin v. Ellisor, 266 S.C. 377, 223 S.E. (2d) 415 (1976).
It is our opinion that § 40-59-130 is clear and unambiguous. Any builder who violates the chapter by entering into a contract for home construction without obtaining the required license simply cannot enforce the contract.
The appellant relies on language found in Henderson v. Evans, 268 S.C. 127, 232 S.E. (2d) 331 (1977), the only prior case which has construed this chapter, to support his contention that suit on a contract entered into in violation of the chapter is precluded only until a license is obtained. The language relied upon by appellant is dicta. Unlike the present case, the builder in Henderson was not in violation of the chapter when he entered into the contract he subsequently sought to enforce. The facts in Henderson are clearly distinguishable from the present case.
Having entered into the contract with the respondents without first having obtained a license, the appellant is precluded from prosecuting this action. The judgment of the lower court is affirmed.
Affirmed.
LEWIS, C.J., and LITTLEJOHN, NESS and GREGORY, JJ., concur.
GREGORY, Justice (concurring):
In accord with my dissent to the majority opinion in Henderson v. Evans, 268 S.C. 127, 232 S.E. (2d) 331 (1977), I disagree with the statement in Mr. Justice *650 Rhodes' opinion that the builder in Henderson was not in violation of the Residential Home Builders Act.
I am of the view the builder in Henderson was in violation of the Act, as is the builder in this case.
With this exception, I concur.
NOTES
[1] Title 40, Chapter 59 of the 1976 Code of Laws of South Carolina. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338261/ | 145 Ga. App. 830 (1978)
244 S.E.2d 920
NATIONAL GENERAL INSURANCE COMPANY
v.
MEEKS et al.
55046.
Court of Appeals of Georgia.
Submitted January 11, 1978.
Decided May 3, 1978.
Memory & Thomas, Terry A. Dillard, for appellant.
Jack J. Helms, Berrien L. Sutton, for appellees.
McMURRAY, Judge.
On July 7, 1976, Donald Ray Meeks, a minor, was injured when he was struck by a truck owned and operated by one David Bunny Spivey. His medical expenses exceed $6,300. Spivey carried a no-fault insurance policy covering the truck, and his insurance company paid medical benefits of $2,500 to Meeks. Meeks, the minor son of Donald Meeks, was residing at the time with his grandfather, Charles H. Meeks, Sr., in Atkinson County, Georgia, although there was some question as to the actual residence of his father at the time of the incident in which he was injured. The grandfather owned certain automobiles and likewise carried no-fault insurance with National General Insurance Company.
A claim was made by the father of the minor against National General Insurance Company. It refused to pay medical expenses. Whereupon, the father, as next friend of Donald Ray Meeks and individually, sued National General Insurance Company seeking judgment for $2,500 *831 for medical expenses under the provisions of his father's (grandfather) no-fault insurance policy and Code Ann. Ch. 56-34B (Ga. L. 1974, pp. 113-123). Also since the defendant had refused to pay any amount of no-fault benefits within 60 days after receipt of reasonable and proper proof of the fact and amount of loss, plaintiffs also sought reasonable attorney fees and a penalty of 25% of the amount due ($625) and $5,000 in punitive damages.
The defendant answered denying the complaint but admitting jurisdiction and the existence of the policy; and affirmatively contending that only $2,500 for medical expenses resulting from the incident was due which was pre-paid by another insurance company and contending further that neither the plaintiff nor the minor are insureds under the grandfather's policy.
After discovery a pre-trial order was issued and certain stipulations were agreed upon as follows: the injury had occurred as claimed; plaintiffs had incurred $6,300 medical expenses; the grandfather's no-fault insurance policy was in full force and effect; the plaintiffs had received $2,500 for medical expenses by the no-fault insurance policy covering the truck which struck Donald Ray Meeks; defendant had paid $1,000 under the medical payments provisions of the subject insurance policy to plaintiffs; and Donald Meeks was the father of the plaintiff, Donald Ray Meeks, and has legal custody of the minor.
The legal issues were narrowed to the question of whether or not defendant is liable to plaintiffs for $2,500 medical expenses under the Georgia no-fault law and under the provisions of the policy of insurance. A factual issue remains as to whether the minor involved in the incident was a resident of the named insured's (grandfather) household at the time of the incident and whether or not the defendant is also liable for punitive damages and attorney fees under the Georgia no-fault law.
A jury trial was waived. The case came on for trial; the stipulations were read into the record as evidence, as well as a copy of the policy of insurance, and it was further agreed that the damages were in excess of $6,300 and that if there was a recovery it could only be for $2,500.
The court then rendered its findings of fact and *832 conclusions of law. The court found generally in accordance with the stipulations and found that plaintiff, Donald Ray Meeks, was residing with and was a resident of the household of his grandfather, Charles H. Meeks, Sr., at the time of the collision; the policy was in full force and effect which was issued to the grandfather, and Donald Ray Meeks is an "eligible injured person," under the "Basic Personal Injury Protection Endorsement"; defendant did not pay the medical expenses sued for within 30 days after it received reasonable proof of the fact and the amount of loss sustained, and defendant did not pay the medical expenses sued for within 60 days after proper proof of loss was filed and demand made by the plaintiff; defendant has failed to prove that its failure to pay the medical expenses sued for was in good faith and considering the evidence submitted on attorney fees reasonable attorney fees incurred by plaintiffs in this action are $900; a reasonable amount of penalty not exceeding 25% of the medical expenses sued for would be $625; and a reasonable amount of punitive damages in this action would be $625. The conclusions of law were that the plaintiffs were entitled to recover the sum of $2,500 under the policy issued to the grandfather by the defendant and "under Chapter 56-34B of the Georgia Code Annotated"; reasonable attorney fees in the amount of $900; a penalty of $625, and punitive damages in the sum of $625. A separate judgment for these amounts was then entered, and defendant appeals. Held:
1. The evidence here was ample to support the findings of the court that Donald Ray Meeks was a resident of the household of his grandfather at the time of the incident and did not demand a finding that he was a member of his father's household in that there was evidence that his father was likewise a member of his father's (the grandfather) household. The evidence shows that the father was recently discharged from military service and separated from his wife who had sent the minor to him to support, and because he was unable to take care of the boy he was sent to live with the grandparents. At the moment of the incident in which the grandson was injured the father was a patient in a VA hospital in Florida. Whether or not one is a resident of the *833 same household is a question for the finder of fact. Travelers Ins. Co. v. Mixon, 118 Ga. App. 31, 33 (162 SE2d 830); Griffin v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 179, 182 (2) (199 SE2d 101). See also Teems v. State Farm Mut. Auto. Ins. Co., 113 Ga. App. 53 (147 SE2d 20); State Farm Mut. Auto. Ins. Co. v. Snyder, 122 Ga. App. 584, 587 (178 SE2d 215). There is no merit in this complaint.
2. Under the terms of the Georgia Motor Vehicle Accident Reparations Act (Code Ann. Ch. 56-34B), the grandson is a relative of the named insured and if a resident of the named insured's household he is included in the term "insured." The minor was also an insured under the policy of the other insurance company as "any pedestrian struck by the insured vehicle." Pedestrian means any person not occupying a motor vehicle or a motorcycle or any other motor driven vehicle. See Code Ann. § 56-3402b (b) (Ga. L. 1974, pp. 113, 114).
3. "The term `insured' shall also include the named insured, spouse and any resident relative while a pedestrian or while occupying or when struck by a motor vehicle when such motor vehicle is not similarly insured as required by section 56-3403b (b)." See § 56-3402b, supra. But in this instance the minor was struck by a motor vehicle which was similarly insured.
4. The minimum coverage here under the policy and under the law was "all necessary medical expenses not to exceed $2,500 arising from a motor vehicle accident ..." See Code Ann. § 56-3403b (b) (1) (Ga. L. 1974, pp. 113, 116; 1975, pp. 1202, 1204).
In a further provision of the above statute "[t]he total benefits required to be paid under this section without regard to fault as the result of any one accident shall not exceed the sum of $5,000 per each individual covered as an insured person or such greater amount of coverage as has been purchased on an optional basis as provided elsewhere,... regardless of the number of insurers providing such benefits or of the number of policies providing such coverage." Consequently, the plaintiffs could receive no more than $5,000 even though medical expenses exceeded $6,300. The statute likewise shows that more than one insurance policy might be involved as well as more than one insurer. Here the judgment of $2,500 in *834 addition to the $2,500 already received from the other insurance company did not exceed the total sum authorized by this statute. We cannot agree with the contention of the defendant that there was a clear legislative intent to preclude "stacking" of no-fault policies. See in this connection Travelers Indem. Co. v. Williams, 119 Ga. App. 414, 416 (167 SE2d 174); State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, 713-715 (177 SE2d 257), both of which cases involve the uninsured motorist statute.
5. It was here stipulated there was an excess of $6,300 medical expenses incurred by the plaintiffs. There was evidence also that plaintiffs had received a total of $2,500 for medical expense; thus, the additional $2,500 recovery did not result in a duplication of benefits for the same element of loss, that is, plaintiffs would not be paid twice for the same bills. However, if there were a non-duplication of benefits clause in the policy it would be in conflict with the provisions of the no-fault insurance statutes shown above which require that each policy pay $2,500 up to a total of $5,000 for all policies. Any clauses in the policy providing for a lesser coverage would be void. See Code Ann. § 56-3405b (a), (b) (Ga. L. 1974, pp. 113, 118; 1976, pp. 1078, 1079; 1976, p. 1513; 1976, p. 1523); Travelers Indem. Co. v. Williams, 119 Ga. App. 414, supra; State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, supra. The non-duplication of benefits clause simply does not apply here.
6. The final issue raised in the appeal is whether or not the trial court erred in assessing punitive damages, penalty and attorney fees against the defendant. The evidence was ample to support the findings of the trial court with regard thereto. Defendant (insurer) had made every effort not to pay insurance and there was no reasonable ground for the insurer to contest the claim. See Code Ann. § 56-3406b (Ga. L. 1974, pp. 113, 119; 1975, pp. 1202, 1208). The cases of Home Indem. Co. v. Godley, 122 Ga. App. 356 (3), 362-363 (177 SE2d 105); State Farm Mut. Auto. Ins. Co. v. Bass, 231 Ga. 269 (201 SE2d 444); Nationwide Mut. Ins. Co. v. Ware, 140 Ga. App. 660, 663 (231 SE2d 556); Dependable Ins. Co. v. Gibbs, 218 Ga. 305 (8) 316 (127 SE2d 454), do not here apply to the facts of this *835 case. To avoid the odor of bad faith defendant should have by declaratory judgment sought a determination of whether or not it was liable for the additional sum of $2,500 after paying out $1,000 under the policy, clearly admitting that it was well aware of our no-fault insurance statute in this instance. See in this connection Associated Distributors, Inc. v. McBee, 140 Ga. App. 433, 434 (231 SE2d 449). Defendant failed to show its good faith in this instance.
Judgment affirmed. Webb, J., concurs. Quillian, P. J., concurs in the judgment only.
QUILLIAN, Presiding Judge, concurring in the judgment only.
In my view, the legislature limited recovery for one person for one accident under basic personal injury protection to $5,000. Insofar as the opinion permits recovery solely within that limit, I concur in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263647/ | 336 A.2d 182 (1975)
Norman P. GADUE
v.
VILLAGE OF ESSEX JUNCTION and Kenneth G. Greer.
No. 122-74.
Supreme Court of Vermont, Chittenden.
April 1, 1975.
Hoff, Curtis, Bryan, Quinn, Jenkins, Inc., Burlington, for plaintiff.
Ewing & Spokes, Burlington, for defendants.
Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.
DALEY, Justice.
Norman P. Gadue brought suit against the Village of Essex Junction and Kenneth G. Greer, village manager, seeking restoration to his position as a commissioned police officer and compensation for wages and benefits lost as a result of defendants' refusal to allow him to return to his employment following surgery for organic heart disease. The complaint states that Gadue's own physician had certified on November 1, 1973, that he was able to resume work, but that he was required to submit to a further physical examination conducted by doctor selected by the village. The complaint further alleges that this physician concluded that Gadue had abnormally high blood pressure and that as a result thereof Gadue was wrongfully prevented from returning to his job. All of this, Gadue claims, was done without cause and without a hearing in contravention of his civil rights.
Informal hearings were conducted before the Chittenden Superior Court, but no witnesses were called. At the close of the second hearing, the court below concluded that the village was without authority to dismiss a police officer for physical disability. The court ordered Gadue reinstated with all back pay and benefits from November 1, but later stayed the order pending appeal. This Court subsequently vacated the stay order, and Gadue is presently employed as a police officer for the village.
Because of the manner in which the case was disposed of below, only one issue is presented for our appellate consideration. Does the Village of Essex Junction have the authority to dismiss a police officer for physical disability? The court below, finding no specific authorization to *183 this effect in either the Vermont statutes or the personnel rules of the village, concluded that such authority does not exist. The court was persuaded that the village was restricted by its own rules because the Legislature "clearly intended that the various municipalities adopt procedures whereby these matters could be taken into consideration." It should be pointed out, however, that while 24 V.S.A. § 1121 empowers municipalities to adopt personnel regulations, this authority is conveyed through the permissive "may" and should not be read as necessarily restricting a village's dismissal power to local rules which it may or may not adopt.
More importantly, both 24 V.S.A. § 1931 and the village's personnel rules provide for removal for "cause". The more precise question, therefore, is whether "cause" may be interpreted to include physical disability. We do not hesitate to answer this question in the affirmative. The discharge of public employees physically or mentally unable to perform the duties of their offices has been upheld in numerous decisions. See Annot., 28 A.L.R. 777 (1924). And two recent California decisions have specifically held that physical disability is "sufficient cause" for removal of a policeman. Dobbins v. City of Los Angeles, 11 Cal.App.3d 302, 89 Cal.Rptr. 758 (1970); O'Neal v. City and County of San Francisco, 272 Cal.App.2d 869, 77 Cal.Rptr. 855 (1969). But we need not base our decision entirely on related case law from other jurisdictions. The detriment to the public which would result from the lack of authority to discharge a physically disabled policeman is itself a sound basis for concluding that physical disability may be "cause" for dismissal. Denial of this authority would constitute an unreasonable result which we will not presume that the Legislature intended. In re Preseault, 130 Vt. 343, 292 A.2d 832 (1972).
Our disposition of this appeal is limited to the single issue properly before us at this time. We hold only that the court below erred in concluding as a matter of law that the village was without authority to remove a police officer for physical disability. Whether this plaintiff is physically disabled so as to warrant his removal for cause is a mixed question of law and fact which can only be determined upon full hearing in the superior court. Since no evidentiary hearing was held upon this issue and other issues raised by the pleadings, this matter must be remanded for further proceedings.
Paragraphs one and two of the orders of Judge Dier dated May 29, 1974 remain in effect until final disposition of this cause or further order of this Court. So much of the judgment order that denies the right of the Village of Essex Junction to discharge the plaintiff is reversed in accordance with the views expressed in this opinion, and the cause is remanded for hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263681/ | 24 Cal.App.4th 126 (1994)
29 Cal. Rptr.2d 291
DIFKO ADMINISTRATION (US) INC., Petitioner,
v.
THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; WESTINGHOUSE ELECTRIC CORP. et al., Real Parties in Interest.
Docket No. E013859.
Court of Appeals of California, Fourth District, Division Two.
April 14, 1994.
*127 COUNSEL
Bruggeman, Smith & Peckham and Harry C. Carpelan for Petitioner.
No appearance for Respondent.
Thompson & Colegate and Franklin K.P. Moore for Real Parties in Interest.
*128 OPINION
TIMLIN, J.
(1a) In this matter we are called upon to decide a simple issue: when an injured employee sues a third party defendant (defendant), not his employer, in tort, and the defendant wishes to raise the employer's concurrent negligence as the basis for an offset against any judgment against it, may the defendant file a cross-complaint against the employer alleging entitlement to a setoff or credit under the principles of Witt v. Jackson (1961) 57 Cal.2d 57, 71-73 [17 Cal. Rptr. 369, 366 P.2d 641]? Or is the defendant limited to asserting the claim as an affirmative defense in its answer to the employee's complaint, thus precluding the employer from being a party to the litigation?
Here, we must determine whether to follow Del Monte Corp. v. Superior Court (1982) 127 Cal. App.3d 1049 [179 Cal. Rptr. 855], the former leading case on the question, or to side with C.J.L. Construction, Inc. v. Universal Plumbing (1993) 18 Cal. App.4th 376 [22 Cal. Rptr.2d 360], a recent, contrary appellate decision. We choose the latter, and publish this opinion to afford guidance to litigants and attorneys practicing within this appellate district.
I
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are not in dispute and may be briefly summarized. Petitioner Difko Administration (US) Inc. (hereinafter Difko) is, or was, the employer of Lynn Miller. Miller suffered injuries in the course and scope of his employment, for which workers' compensation was his sole remedy against his employer, with exceptions not here relevant. (Lab. Code, §§ 3600, 3602.) Miller did receive workers' compensation benefits by reason of his injuries.
Miller, and his spouse, filed a suit for personal injury and loss of consortium damages against numerous third parties including real parties in interest MGM Transformer Company, Inc., Sea West San Gorgonio, Inc., and Westinghouse Electric Corporation (Westinghouse). Plaintiffs' alleged causes of action were for negligence, strict liability, breach of warranty and negligent misrepresentation.
These real parties in interest (hereinafter collectively defendants) filed in the same case separate cross-complaints for equitable indemnity naming (in general) the other third party defendants; these cross-complaints also contained a cause of action directed solely at Difko, seeking a setoff against any *129 judgment against cross-complainant in the amount of workers' compensation benefits paid by Difko to Miller.[1]
The record does not show that Difko joined as a party plaintiff in Miller's tort causes of action, or that it filed a complaint in intervention, or filed an independent action against defendants, or that it applied for a first lien against Lynn Miller's recovery, if any all procedures being available to Difko to obtain reimbursement of its workers' compensation payments to Lynn Miller from defendants.
Difko moved to dismiss the defendants' cross-complaints as to it. The basis for Difko's motion was its assertion that the defendants' claims of employer negligence and their concomitant right to a setoff cannot be alleged by a cross-complaint against Difko, but can only be raised as defensive matter in the defendants' answers to the Millers' complaint. Defendants Westinghouse and MGM Transformer opposed the motion, which was denied.
Difko has filed a petition for a writ of mandate in this court, requesting that we order the trial court to vacate its order denying Difko's dismissal motions and instead to grant them. We issued the alternative writ and set the matter for hearing.
II
DISCUSSION
In Witt v. Jackson, supra, the Supreme Court held 1) that an employer whose negligence is concurrent with the negligence of a third party, both joining to cause injury to the employee, cannot secure reimbursement from the third party for sums paid to the employee as workers' compensation benefits, and 2) that if the employee sues the third party in tort, any damages awarded to the employee must be reduced by the amount of any such workers' compensation payments, to prevent a double recovery. Later, Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. 1978) 22 Cal.3d 829, 840-847 [150 Cal. Rptr. 888, 587 P.2d 684], modified *130 the Witt v. Jackson rule to accommodate it to California's comparative negligence doctrine. The Supreme Court concluded: "[A negligent] employer may be allowed credit or reimbursement [for workers' compensation benefits paid to an employee] but only to the extent the employer's liability in workers' compensation exceeds its share of responsibility for the employee's full tort damages." (Id. at p. 847, fn. omitted.)
So much was clear as to the substantive law; however, the mechanism through which a third party defendant was to claim the benefit of this offset rule was not settled in Witt or Associated Construction & Engineering Co. However, two procedural avenues were recognized by decisional law.
In Del Monte Corp. v. Superior Court (1982) 127 Cal. App.3d 1049 [179 Cal. Rptr. 855], an employer was joined as a cross-defendant by a third party defendant's cross-complaint, asserting a Witt v. Jackson setoff. The circumstances were analogous to those in the case at bar. The Court of Appeals upheld the trial court's overruling the employer's demurrer, holding that it was proper for the third party defendant to join the employer as a party by way of a cross-complaint for a setoff and thereby "compel" his participation in the litigation. The appellate court apparently found it to be insignificant that the employer stated it did not intend to seek reimbursement for workers' compensation benefits, paid or to be paid by it to the plaintiff-employee. The court cited City of Sacramento v. Superior Court (1962) 205 Cal. App.2d 398, 403 [23 Cal. Rptr. 43] in support of its holding, and also noted that while some cases approved the use of either a cross-complaint or a defensive pleading, none rejected the former approach. (127 Cal. App.3d at pp. 1053-1054.)
The Del Monte court did not explain at length its reasons in concluding that a cross-complaint was a permissible pleading to claim the setoff, although its decision was certainly supported by then existing authority. (See also Roe v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 884, 896 [117 Cal. Rptr. 683, 528 P.2d 771] (dis. opn. of Burke, J.) [citing City of Sacramento as good law in a case in which the question before us did not arise in the majority opinion].)[2] However, it did conclude that an employer may be brought into the third party action by cross-complaint "in order to facilitate the third party defendant's proof of the employer's negligence where a finding of such negligence would lead to a reduction in plaintiff's award by the amount of compensation benefits paid...." (Del Monte Corp. v. Superior Court, at p. 1055.)
*131 We take this as a consideration of the conveniences of conducting discovery against a party under what is now known as the Civil Discovery Act. (Code Civ. Proc., § 2016 et seq.) We need not detail the ways in which information may be more expeditiously and inexpensively obtained from a party rather than from a nonparty. (Cf. Code Civ. Proc., §§ 1985 et seq., 2020 [governing subpoenas directed to nonparties], & generally 2016 et seq. [governing party discovery].) In our view, the Del Monte court was correct in its belief that the third party defendant will find it easier to obtain the necessary information with which to establish the employer's concurrent negligence if the employer is a party cross-defendant than if the employer is permitted to remain outside the litigation.
However, more recent authority takes the position that this advantage, which inures to the benefit of the third party, does not justify the corresponding expense and inconvenience to the employer. In C.J.L. Construction, Inc. v. Universal Plumbing (1993) 18 Cal. App.4th 376 [22 Cal. Rptr.2d 360], again in circumstances factually analogous to those here, the court disagreed with the conclusions in Del Monte. Instead, it concluded as a matter of law that the only way in which the third party defendant can raise the employer's concurrent negligence in order to seek a Witt v. Jackson setoff is as defensive matter in its answer. (18 Cal. App.4th at p. 387.)
The C.J.L. court relied in part on two Supreme Court cases which refer to the third party's right to establish negligence on the part of the employer as a "partial defense." (Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd., supra, 22 Cal.3d at p. 842; DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 604 at fn. 6 [7 Cal. Rptr.2d 238, 828 P.2d 140].) It is true, as the Del Monte court pointed out, that Associated Construction & Engineering Co. did not deal with the issue before us and did not purport to limit the third party to a defensive assertion; neither does DaFonte.[3] These cases therefore do not at all mandate the result reached in C.J.L. However, although we may differ with some of the analysis in C.J.L., we agree with its conclusion.
The C.J.L. court pointed out that a third party's cross-complaint against the employer will generally be framed in terms of declaratory relief. (Code Civ. Proc., § 1060.) It then noted that a court "may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances." It next cited several cases which upheld the trial court's refusal to consider a *132 declaratory relief action when the matters raised in such an action can be or have been raised as affirmative defenses. (18 Cal. App.4th at pp. 390-391.) Because, in the case before it, the employer had made no effort to seek reimbursement, and because the issues of the employer's concurrent negligence and setoff could be determined if raised as an affirmative defense, the court concluded that the cross-complaint could properly have been dismissed as unnecessary. (18 Cal. App.4th at pp. 389-391.)
The difficulty with this analysis is that the trial court in C.J.L. did not exercise its discretion under Code of Civil Procedure section 1060; it dismissed the third party's cross-complaint on the incorrect basis that because the employer had been dismissed as a defendant in the plaintiff's complaint (see Lab. Code, §§ 3600-3602), it was impossible for a third party to allege a claim against the employer in a cross-complaint, which claim was "derivative" of the claim against the employer in the complaint. (18 Cal. App.4th at pp. 382, 392.)
Furthermore, the cases cited in C.J.L. concerning the power of the court to dismiss a claim for declaratory relief where an adequate procedural remedy at law exists are of considerable vintage[4] and are inconsistent with the modern trend to permit a party to seek such relief despite the existence of another procedural remedy. (See Californians for Native Salmon etc. Assn. v. Department of Forestry (1990) 221 Cal. App.3d 1419, 1429-1430 [271 Cal. Rptr. 270].) The more recent case cited by the C.J.L. court (Allstate Ins. Co. v. Fisher (1973) 31 Cal. App.3d 391, 393-396 [107 Cal. Rptr. 251]) involved an action in which the issue sought to be made the subject of declaratory relief had already actually been raised as a defense in pending litigation; in such a situation, it is logical to say that the declaratory relief action is unnecessary. We do not find these authorities conclusive on the question of whether a court should dismiss a declaratory relief cross-complaint asserting entitlement to a Witt v. Jackson setoff if the issue of setoff has been raised or can be raised in another fashion; the modern rule permits the party to choose the type of relief it desires. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 816 et seq.)
However, we do note another flaw in the use of a declaratory relief cross-complaint to bring the employer into the action as a party, when, as in this case, the employer has not intervened to seek reimbursement. The relief actually desired by the third party defendant in this situation is a reduction in any judgment awarded against it to the plaintiff. The employer is not the party affected. It is the right of the plaintiff to recover the full amount of any *133 judgment, and the right of the third party defendant to set off the amount of workers' compensation benefits paid and to be paid that are sought to be established. If the employer is not seeking reimbursement, it has no rights to be established or to be affected by the judgment. Indeed, Westinghouse's cross-complaint here does not, in fact, seek a declaration of rights against Difko, but merely a "set-off or credit pursuant to the principals [sic] of Witt v. Jackson. ..."
Thus, in the case at bar it could properly be held that the Westinghouse cross-complaint does not state any claim for relief (declaratory or otherwise) against Difko. However, we agree with the result in C.J.L. for a more fundamental reason.
(2) The workers' compensation system, in its relationship to general tort law, is designed to afford the injured employee a speedy and secure remedy for his injuries. The trade-off is that he may not sue his employer in tort; similarly, a third party defendant cannot directly seek indemnification against the employer if the judgment against it represents more than the third party's "share" of the damages under comparative fault principles. (Lab. Code, § 3864.) The intent of the statutory scheme is to "insulate the employer from tort liability." (Privette v. Superior Court (1993) 5 Cal.4th 689, 697 [854 P.2d 721], quoting S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 354 [256 Cal. Rptr. 543, 769 P.2d 399].) The rules operate to protect the employer not only from actual tort liability, but, as a general rule, from the expenses of that type of litigation.
This is the factor which we find persuasive. The C.J.L. court, after citing Privette on the point noted above, went on to stress that both Del Monte and City of Sacramento "were decided long before workers' compensation costs became an important economic issue in California." (18 Cal. App.4th at p. 392.) When an unwilling employer is formally joined as a party through the mechanism of a cross-complaint, it is compelled to incur expenses to which a nonparty is not subject. (1b) We do not necessarily agree with Difko that these expenses will be oppressive in any given case, but we agree that the employer should not be forced to pay any litigation expenses when it is in effect a disinterested party.[5] Even a small expense in one case, multiplied through a multitude of cases, can create a substantial burden on the employers of this state.
*134 Furthermore, as the C.J.L. court pointed out, the third party defendant has ample statutory means by which to obtain information from the nonlitigant employer in order to establish the latter's negligence, including depositions and required production of evidence. (See, e.g., Code Civ. Proc., §§ 1985 et seq. and 2020 et seq.) Although the third party defendant is obliged to incur the expenses of serving the subpoena and paying witness fees, we find that given the overall intent of the workers' compensation system it is preferable that discovery expenses be borne by the third party defendant rather than the employer who does not otherwise wish to participate. The payment of witness fees and mileage expenses to the employer, where appropriate, is also a desirable way in which the burden on the employer may be minimized.
We do not find Westinghouse's contrary arguments compelling. It asserts that the employer's presence at trial will facilitate the ascertainment of comparative fault. However, its citation for the desirability of this procedure hardly supports its claim. In Everman v. Superior Court (1992) 8 Cal. App.4th 466 [10 Cal. Rptr.2d 176], the plaintiffs wished to assure the settling defendant's presence at trial in order to prevent the remaining defendants from adopting an "empty chair" approach and placing the lion's share of negligence liability and strict liability on the absent defendant. Here, Difko's absence arguably permits the defendants to make such a claim and improve their chances of a special verdict assigning primary responsibility on the negligence and strict lability causes of action to Difko.[6] Furthermore, although the Everman court did state in dicta that the settling defendant's presence "tends to facilitate the requirement ... that the comparative several liability of each defendant for noneconomic damages be allocated" (8 Cal. App.4th at p. 472), it certainly did not hold that a reluctant participant could be compelled to perform at trial as a party simply because the jury's task might be more difficult if he did not.
In summary, we side with the C.J.L. court and hold that a third party defendant who wishes to establish his right to a Witt v. Jackson offset based on the employer's concurrent negligence may only do so by raising the issue as defensive matter in his answer, in all cases in which the employer does not seek reimbursement for benefits provided to the employee by an independent action against the third party defendant; by joining in the employee's action as a party plaintiff; by filing in the employee's action a complaint *135 in intervention; or by applying therein for a first lien against the employee's recovery, if any. The trial court therefore erred in denying Difko's motions to dismiss.
III
DISPOSITION
The alternative writ having served its purpose, it is discharged. Let a peremptory writ issue as prayed.
Hollenhorst, Acting P.J., and McKinster, J., concurred.
NOTES
[1] At least, we assume that to be the theory. The only cross-complaint which has been submitted as an exhibit, that of Westinghouse, simply alleges that Difko was Miller's employer. Although it seeks a setoff based on "percentage of fault," it does not expressly allege that Difko was negligent. If Difko was not negligent, there would be no setoff; instead, the employer would have rights of reimbursement against the third party with respect to benefits paid to the employee. (Lab. Code, § 3852 et seq.)
However, we will broadly construe the Westinghouse cross-complaint, and assume that the other cross-complaints contained adequate allegations to support a claim for setoff.
[2] The majority in Roe held that negligent employers could not recover a credit for an employee's recovery against a third party under Labor Code section 386, following Witt. (Roe v. Workmen's Comp. Appeals Bd., supra, 12 Cal.3d at pp. 889-892.) Roe was also modified in Associated Construction & Engineering. (22 Cal.3d at pp. 846-847.)
[3] Those cases dealt with the appropriate formulae for the allocation of fault and reduction of damages due to the employer's concurrent negligence, applying the principles of comparative negligence and the loss-bearing provisions of Civil Code section 1431.1.
[4] E.g., Sunset Scavenger Corp. v. Oddou (1936) 11 Cal. App.2d 92, 96-98 [53 P.2d 188]; Welfare Investment Co. v. Stowell (1933) 132 Cal. App. 275, 276-278 [22 P.2d 529].
[5] A cross-defendant employer will not invariably be compelled to pay substantial legal expenses for the preparation of court papers and the making of court appearances; an employer who does not seek a reimbursement of the workers' compensation benefits paid and to be paid, and is willing to accept a judgment establishing its negligence may make the minimum of appearances, or even default without filing an answer. However, even a defaulting cross-defendant may be ordered to pay costs, and the prudent employer may generally feel obliged at least to consult counsel about the effect of the cross-complaint and the desirable manner in which to proceed.
[6] Which would have no effect on Difko, but could affect the actual liabilities of the third party defendants. (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th 593, interpreting Civil Code section 1431.1 with respect to the effect of the employer's negligence on the third party's liability for noneconomic damages.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263698/ | 24 Cal.App.4th 318 (1994)
29 Cal. Rptr.2d 330
CHARLOTTE BLY-MAGEE, Plaintiff and Respondent,
v.
BUDGET RENT-A-CAR CORPORATION, Defendant and Appellant.
Docket No. B068538.
Court of Appeals of California, Second District, Division Four.
April 21, 1994.
*320 COUNSEL
Brumer, Rubin & Weston and Robert S. Rubin for Defendant and Appellant.
Burlison & Luostari and Walter R. Luostari for Plaintiff and Respondent.
OPINION
VOGEL (C.S.), J.
Appellant Budget Rent-A-Car Corporation (Budget) appeals from a judgment awarding damages of $291,000 in favor of Charlotte Bly-Magee (Bly-Magee). The jury found that Budget was negligent in failing to register a vehicle rented by Bly-Magee and that this negligence resulted in her arrest and incarceration. The trial court limited Budget's voir dire to the issue of agency and refused to submit its special verdict form *321 specifically describing nonparties for the allocation of comparative fault. Budget contends that each of these rulings is reversible error. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 4, 1990, Bly-Magee rented a car at Runabout Enterprises, Inc., doing business as Budget Rent-A-Car of Downey (Downey). She had been referred to Downey by using Budget's national toll free number to locate the Budget location nearest her place of employment. While using the rented car, Bly-Magee was stopped by California Highway Patrol (CHP) Officer Flores who had noticed that the tags on the license plates had expired. Flores asked Bly-Magee for the car's registration. Bly-Magee told Flores the car was rented. Flores asked Bly-Magee to produce proof of insurance but she did not do so. Flores prepared a citation for driving a vehicle with expired registration and failure to produce proof of registration and insurance. Flores asked Bly-Magee to sign it, and she refused. Flores then took Bly-Magee into custody to transport her to a magistrate.[1]
When Flores arrived at the courthouse, no magistrate was available and Bly-Magee was turned over to the Los Angeles County Sheriff who placed her in a holding cell. Bly-Magee was incarcerated for seven hours before being released on her own recognizance. While she was in custody, she was confined, verbally abused, and suffered physical and emotional injuries.
Bly-Magee filed this action against Budget and Downey only. When the matter was called for trial, it was bifurcated. The issue of Budget's responsibility for Downey's failure to register the rental car was to be determined first. The remaining issues of negligence, damages, and comparative fault were deferred to the second phase of the trial.
A jury panel was called and the trial judge told them that the case was bifurcated and that the issue of Budget's responsibility for the registration of the rental car would be decided first and could be dispositive of the entire case. In the presence of the panel and counsel, the court stated as follows: "The questions I'm going to ask you probably will relate to the entire case, *322 but I'm going to ask counsel to refrain from asking questions about the entire case and just stick with the issue that we're going to try first." Budget made no objection to this procedure. The voir dire was conducted and a jury panel, plus two alternates, was selected and sworn.
After the completion of opening statements, evidence was introduced on the issue of the agency relationship of Budget and Downey and Budget's responsibility for registering the rental vehicle. Thereafter, counsel gave closing argument, the jury was instructed, and the issue was submitted to the jury. A special verdict was rendered finding "Budget Rent A Car Corporation was responsible for ensuring that the vehicle rented to Plaintiff on October 4, 1990, had a valid California registration."
At the outset of the second phase of the trial, counsel for Budget informed the court of his intent to continue with voir dire. He advised the court that he had reserved peremptory challenges anticipating that he would have an opportunity to question the jurors on damages or "other issues." Initially, the trial court agreed with Budget's view indicating that if any jurors were excused the alternates could replace them. Bly-Magee's counsel objected on the ground that Budget had not raised or otherwise objected to the limitation on voir dire before the jury had been sworn prior to the commencement of the first phase of the trial. Bly-Magee argued that by accepting the jury and allowing it to be sworn, Budget was foreclosed from reinvading the present jury by resuming voir dire and subjecting the sworn jurors to peremptory challenges. The trial court ruled that voir dire would not be reopened and stated: "[T]he issue is, was this jury sufficiently voir dired when we started the case. I think it was, so we're going to dispense with further voir dire."
The trial proceeded with the introduction of oral and documentary evidence, including other complaints filed by Bly-Magee against the CHP and the Los Angeles County Sheriff's Department and individual officers of each agency.[2]
Prior to submitting the case to the jury, Budget requested the trial court to give a proposed special verdict form in which three individual deputy sheriffs were identified by name for the allocation of fault among the parties and each of the named deputies.[3] The trial court rejected Budget's proposal and used a form of special verdict which described "other persons" to whom fault could be allocated generally, not individually. The jury rendered a *323 verdict allocating fault 5 percent to Bly-Magee, 90 percent to Budget, 5 percent to Budget of Downey, and zero percent to "other persons" and awarded damages for $276,450.
DISCUSSION
Limitation of Voir Dire
Although the record reveals specific orders bifurcating the issue of responsibility for failure to register the rental car from the issues of liability and damages, the record does not indicate that there would be two trials and two juries. Code of Civil Procedure section 598 authorizes the trial court to bifurcate issues to accommodate the convenience of witnesses, to serve the ends of justice, or to achieve economy and efficiency of the handling of juries.[4] Section 598 further provides that if the issue is decided against the person on whom liability is sought "... the trial of the other issues ... shall thereafter be had at such time, and ... before the same or other jury, as ordered by the court...."
Here, the trial court's rejection of Budget's proposal to resume voir dire of the jury was tantamount to ordering the case to continue on the remaining issues before the same jury. Indeed, Budget has not contended either here or in the trial court that, pursuant to section 1048,[5] the issue of Budget's responsibility had been severed, to be determined in separate trials by separate juries.
(1) To the extent that Budget harbors the view that a sworn jury may be reexamined at the conclusion of the first phase of a bifurcated trial for the purpose of exercising unused peremptory challenges, Budget contemplates a procedure not provided by California law. It would waste judicial resources *324 to impanel a jury to decide a preliminary issue and then to partially change the jury's composition by allowing a party to exercise any unused peremptory challenges. It would also be unfair to allow a party against whom an issue has been adversely decided to reshuffle the jury deck when the party has previously passed the panel for cause. Once the jury is passed for cause and sworn, the time for voir dire and peremptory challenges is over. The provision of section 598 allowing remaining issues to be tried before a separate jury means a new jury selected from a new and different array.
We are aware that section 222.5 grants counsel in a civil trial the right to conduct oral examination of prospective jurors to enable them to exercise both peremptory and "for cause" challenges. The scope of such examination may be restricted by the trial court within reasonable limits that allow counsel liberal and probing examination to discover bias and prejudice within the circumstances of each case. Although the applicable law affords counsel considerable latitude, it does not provide for a resumption of voir dire at any juncture after the jury is sworn. Therefore, the trial court did not err in denying Budget's request to voir dire the jury after it had decided the first bifurcated issue.
(2) To the extent that Budget's appellate contention suggests that the trial court erred when it initially limited the voir dire, the record indicates that Budget has waived its right to object to that procedure. In the pretrial and final status conference, bifurcation was ordered and it was referenced again in the pretrial conference just before the commencement of trial. However, the record does not indicate that the procedure for jury selection and the conduct of voir dire were ever mentioned until the jury panel was called and the trial court announced it would conduct a general voir dire and counsel was to refrain from asking questions about the entire case and to "stick with the issue that we're going to try first."
In the absence of any understanding that the matter was to proceed as two trials before two juries if Budget did not prevail in the first phase, it was incumbent on Budget to object to the trial court's direction limiting its voir dire. Even if Budget did not want to interrupt the trial court's commentary to the jury, it should have requested a conference at side bar or raised its concern during the first recess prior to the swearing of the jury to clarify the trial court's intentions regarding separate trials. We can hardly believe that any trial lawyer would seriously anticipate an opportunity to examine jurors after they were sworn. Although that opportunity may be enticing, its contemplation is wholly fanciful.
In Rousseau v. West Coast House Movers (1967) 256 Cal. App.2d 878, 881 [64 Cal. Rptr. 655], the trial court conducted all of the voir dire and instructed counsel to submit written questions before and during the trial *325 court's voir dire for the interrogation of the prospective jury. Rousseau did not object to any of the court's questions, submitted none of his own, and ultimately accepted the jury as constituted. Only after an adverse verdict did Rousseau register an objection to the conduct of the jury examination. The Rousseau court held that the claim of error was too late and that the failure to object at the proper time precluded an appellate attack on the procedure followed by the trial court.
We find the holding in Rousseau applicable to the present situation. Budget failed to clarify or object to the limitation on voir dire knowing that the case was bifurcated and that the law permits the remaining issues to be tried before the same jury. Thus, to the extent that Budget contends that the trial court abused its discretion by limiting voir dire to the issue of Budget's responsibility for the registration of the rental vehicle, Budget's delay in raising its concerns constituted a waiver of its right to complain now about the conduct or scope of voir dire. (See People v. Taylor (1992) 5 Cal. App.4th 1299, 1312 [7 Cal. Rptr.2d 676].)
The Special Verdict Form Did Not Mislead or Confuse the Jurors
This case involved not only the conduct of the named defendants, Budget and Downey, but included the participation of the CHP and the Los Angeles County Sheriff. It was appropriate to apportion damages among the defendants and the "universe of tortfeasors." (Civ. Code, § 1431.2; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1242, fn. 4 [246 Cal. Rptr. 629, 753 P.2d 585] (conc. & dis. opn. of Kaufman, J.).) With that in mind, Budget submitted a special verdict form to the trial court in which three nonparty deputy sheriffs were identified for the purpose of having the jury fill in blanks indicating the percentage of fault allocated to any or all of them. The trial court refused to use Budget's proposed verdict form and elected to use one in which the nonparties to whom some percentage of fault could be allocated were identified generally as "other persons." (3) Because the jury allocated no fault to the nonparty "other persons," Budget contends the trial court's refusal to use its form resulted in confusion among the jurors and constituted reversible error.
To buttress this contention, Budget lodged four affidavits of jurors with the trial court in support of its motion for a new trial. All four of the affidavits are uniform and in pertinent part state that the declarants and fellow jurors did not understand if the percentage of negligence attributable to "other persons" included the negligence of the CHP or the sheriff's department. The affidavits go on to state that, if they had known that "other persons" referred to the CHP and the Los Angeles County Sheriff's Department, they would have allocated some percentage to them. These declarations come within Evidence Code section 1150 and are inadmissible. The *326 declarations "at most suggest `deliberative error' in the jury's collective mental process confusion, misunderstanding, and misinterpretation of the law." (Ford v. Bennacka (1990) 226 Cal. App.3d 330, 336 [276 Cal. Rptr. 513].)
To the extent that Budget's counsel harbored any apprehension that the phrase "other persons" would not clearly identify to the jurors the nonparties to whom fault could be allocated, he should have concentrated on that subject in his closing argument. Indeed, one would expect trial counsel to underscore and explain to the jury the importance of allocation and even hazard a suggestion as to the appropriate formula. Given that the evidence included expansive references to the conduct of the CHP and the sheriff's department, including the complaints in the other cases filed by Bly-Magee against these law enforcement agencies arising out of this same incident, Budget had every opportunity to focus the jury on this issue but chose not to do so. In sum, the verdict form used by the trial court was not confusing or ambiguous and could not have reasonably misled the jury. We reject Budget's contention to the contrary.
DISPOSITION
The judgment is affirmed.
Woods (A.M.), P.J., and Epstein, J., concurred.
NOTES
[1] Vehicle Code section 40302 provides: "Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases: [¶] (a) When the person arrested fails to present his driver's license or other satisfactory evidence of his identity for examination. [¶] (b) When the person arrested refuses to give his written promise to appear in court. [¶] (c) When the person arrested demands an immediate appearance before a magistrate. [¶] (d) When the person arrested is charged with violating Section 23152."
[2] Bly-Magee v. Los Angeles County Sheriff's Department (U.S. Dist. Ct., C.D.Cal., No. 91 5599 CBM (Tx)); Bly-Magee v. State of California (U.S. Dist. Ct., C.D.Cal., No. 91 5600 AWT (CHKx)); and Bly-Magee v. Los Angeles County (L.A. Super. Ct., No. BC033861).
[3] Question No. 6 of the proposed special verdict form states: "Assuming that 100% represents the total negligence which was the proximate cause of the plaintiff's damage, what percentage of this 100% is due to the contributory negligence of the plaintiff and what percentage of this 100% is due to the negligence of the defendants and all other persons?
"Answer: . . .
"Other person Officer Perez ____%
"Other person Officer Cronan ____%
"Other person Officer Nash ____%
[4] All references are to the Code of Civil Procedure unless otherwise indicated.
[5] Section 1048 provides: "(a) When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. [¶] (b) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263713/ | 24 Cal.App.4th 1100 (1994)
29 Cal. Rptr.2d 527
MAURICE OVADIA et al., Plaintiffs and Respondents,
v.
ANWAR ABDULLAH et al., Defendants and Appellants.
Docket No. B071782.
Court of Appeals of California, Second District, Division Four.
May 3, 1994.
*1102 COUNSEL
Simke, Chodos, Silberfeld & Anteau, David Manning Chodos and Bernice Conn for Defendants and Appellants.
*1103 Cooper & Dempsey, Michael D. Dempsey and Jan Copley for Plaintiffs and Respondents.
OPINION
WOODS (A.M.), P.J.
This appeal is from a judgment that required Anwar Abdullah and Jamil Abdullah (Anwar, Jamil or appellants) to sell their stock in West Coast Laboratories, Inc., a family-owned corporation, back to the corporation pursuant to the provisions of Corporations Code section 2000.[1] Respondents are appellants' brothers, Maurice Ovadia and Naim Abdullah (Maurice, Naim or respondents), who initiated proceedings under section 2000.
West Coast Laboratories, Inc., (West Coast) is a pharmaceutical manufacturing company begun in 1967 by the parties, each of whom held 25 percent of the corporation's stock. Without here relating the various charges and countercharges that the parties have levied at each other, suffice it to say that relations between the brothers were not harmonious.
*1104 On September 12, 1991, respondents filed a petition to avoid voluntary dissolution of West Coast under section 2000. In the unverified petition, respondents alleged that "[a]t a series of meetings ... Anwar Abdullah and Jamil Abdullah Shad stated that their shares were being voted either to sell the Corporation to a third person, and not to [respondents], or to dissolve the Corporation." In support of this allegation, respondents submitted the declaration of their attorney and their own declarations. In his declaration, their attorney stated that he was asked by respondents "to consult with them concerning the decision of their brothers, ..., to vote their 50% ownership interest in West Coast Laboratories, Inc. in favor of dissolving and winding up the corporation." He also stated he discussed the matter with appellants' attorney with respect to obtaining an appraisal of appellants' stock.
Maurice's declaration stated: "... Naim and I realized it was impossible to continue to work as before because our relationship [with appellants] had deteriorated considerably. Naim and I called a meeting for the four of us, and Naim and I offered Jamil and Anwar the following: Either they buy our shares from us after an appraisal or we buy their shares from them after an appraisal, or we sell the whole company to a third party. [¶] Jamil and Anwar replied that they agree to sell the company to a third party providing that neither me nor Naim would remain working for the buyer, even if it was on a consulting basis and for a short time. Naim and I told Jamil and Anwar that it would be difficult to find a buyer who would accept these terms.... [¶] ... Anwar and Jamil then said they want the assets of the company to be sold and money or left-over assets divided among the four of us and then everyone goes his own way."
Naim's declaration stated: "We, that is, Maurice and I, offered to buy out Jamil and Anwar at an appraised price. They refused. We offered to give them the option to buy us out or compel us to buy them out on terms that we would propose. They refused. We offered to sell to a third party, if a buyer could be found. They refused.... Finally, Jamil and Anwar said they wanted to sell the assets of the company, divide the money and go."
Along with the petition, appellants' filed a motion for appointment of appraisers to ascertain the fair value of the corporate shares.
On March 9, 1992, appellants moved to strike the petition asserting that a suit for a voluntary or involuntary dissolution was not pending. They also filed an opposition to respondents' motion for appointment of appraisers on the same ground.
In their reply, respondents submitted the further declaration of their attorney who stated that he had been negotiating with appellants' counsel *1105 who had "assured" him that appellants "want to dissolve the corporation and take their one-half share of the proceeds...."
Appellants' counsel promptly filed a declaration denying this statement and characterizing it as "false." He submitted correspondence with respondents' counsel to show that "there has never been a vote for dissolution of any kind." (Fn. omitted.)
At the hearing on the petition and the motion, appellants' counsel, in response to the court's asking why it should not appoint an appraiser, said, "Because there is no proceeding for a voluntary dissolution made by the [appellants].... [¶] Under 601A and under 601F there has to be a written notice of the meeting, and under 601F, if there is no such meeting, if there is no such written notice, your Honor
"THE COURT: So, are you tell me
"MR. GRUNFELD: or written waiver, it invalidates the shareholders meeting.
"THE COURT: Are you telling me, counsel, that everything's fine with this corporation?
"MR. GRUNFELD: No, your Honor, I am not.
"THE COURT: And that there's no possible dissolution of this corporation, and that everything, and nobody's attempting to buy out the other side?
"MR. GRUNFELD: Your Honor, there are clearly negotiations going on, or which have gone on, between and among the brothers. That is not tantamount to a voluntary dissolution proceeding being filed by these respondents. [¶] As I started to say, your Honor, under 601A, under 601F, a failure to have a written notice or the failure to have a written waiver specifically invalidates any action taken at a meeting of the shareholders; even if there were one that ever took place. We contend that there is not."
At a later point in the hearing, the court asked appellants' counsel: "So there is a dispute, then?"
"MR. GRUNFELD: Disputes are not tantamount to a voluntary proceeding for dissolution which is the issue here as to whether there is a proceeding under 2000.
"THE COURT: Well, let's see what the Court of Appeals [sic] says, if you feel it's necessary."
*1106 The court granted the petition and appointed the appraisers. Respondents were instructed to prepare the order.
On March 23, 1992, respondents filed their opposition to appellants' motion to strike the petition. They argued that a voluntary proceeding for dissolution had been proven by their declarations regarding appellants' statements that they wanted to sell the company, divide the assets and each go his separate way. Further, respondents asserted that West Coast was a small company, "run informally," and thus the meetings referred to in their declarations were sufficient to satisfy the procedural requirements.
On March 26, 1992, appellants filed a motion for reconsideration of the order granting the petition and appointing appraisers, or, in the alternative, for a new trial. In connection with this motion, both appellants filed declarations. Regarding respondents' claim that at an informal meeting appellants had voted to dissolve the corporation, Jamil declared: "While there were discussions between the brothers, there were never any formal meetings. I never received notice of any such meetings, never signed a unanimous written consent to any conduct of action at those meetings, and never attended a meeting where either my brother Anwar or myself requested or demanded that the corporation be voluntarily dissolved. The accusation that Anwar and I decided to dissolve the company is absolutely false."
Anwar's declaration made the same point: "... I was never accorded any notice of any meetings of shareholders or directors in 1990 and 1991 where Jamil or myself requested a corporate dissolution. Similarly, I never signed any written consent to such action by shareholders. Finally, neither my brother Jamil nor myself ever requested or demanded that the corporation be voluntarily dissolved."
On March 30, 1992, appellants' motion to strike the petition was denied by a different judge than the judge who had granted the petition. On April 16, 1992, the first judge denied appellants' motion for reconsideration. The court also granted respondents' motion authorizing payment to the appraisers. Appellants then filed a petition for writ of mandate in this court. It was summarily denied.[2]
The three court-appointed appraisers concluded that West Coast was worth $1.6 million. On July 30, 1992, respondents filed a petition to confirm the award. On August 4, 1992, appellants responded by filing an at-issue memorandum for a trial on the issue of whether dissolution proceedings *1107 were pending. On August 19, 1992, they filed their opposition to the petition to confirm the award in which they demanded an evidentiary hearing on whether a voluntary dissolution had occurred.
The petition was set for August 26, 1992. The hearing was continued to September 18, 1992, because the parties had apparently reached an agreement to settle the case. The following day, however, respondents withdrew from the agreement.
On September 18, 1992, the court granted the petition to confirm the award permitting respondents 30 days within which to purchase appellants' stock for $800,000. The court denied appellants' request for an evidentiary hearing. Appellants' counsel raised the issue of whether a dissolution had occurred. Ultimately, the court stated: "It says to me that no matter what happens, there's no settlement, no agreement, and there never will be. [¶] Therefore, this court is being forced into a situation where it must rule, and it is willing to do so, and it has ruled. Tentative stands."
On September 28, 1992, appellants filed a motion for reconsideration. On October 7, 1992, judgment was entered. After unsuccessfully attempting to get appellants to comply with the judgment, and being informed that they would not comply until their motion for reconsideration was heard, respondents moved to enforce the judgment. Appellants then filed a motion seeking a brief stay under Code of Civil Procedure section 918 pending a hearing on the motion to reconsider or, alternatively, a stay pending appeal, allowing them to post an undertaking and for an order to deposit their stock with the clerk of the court. On October 14, 1992, the court denied appellants' motion, and ordered payment of $800,000 to be held by the clerk of the court for appellants' stock pending further order. It also ordered the clerk to transfer appellants' shares of the corporation to the corporation.
On October 16, 1992, appellants filed their notice of appeal. We reverse.
I
(1) Respondents, citing Finnie v. Town of Tiburon (1988) 199 Cal. App.3d 1 [244 Cal. Rptr. 581], contend that the appeal should be dismissed as moot because it would "be impossible to return the parties to their respective positions if the judgment were reversed on appeal." The argument is devoid of merit.
In Finnie, the appellant brought an action to prevent a municipal election scheduled for March 3, 1987. His request for preliminary injunction was *1108 denied and he appealed, inter alia, the order of denial. By the time the case reached the reviewing court, the election had taken place. The court dismissed that portion of the appeal as moot. The court stated: "It is well settled that an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events." (199 Cal. App.3d at p. 10.)
The instant case is not remotely similar to Finnie. Respondents' conclusory and unsupported assertion that the parties cannot be restored to the status quo ante does not equate with mootness because, whatever difficulty may exist in undoing the judgment upon reversal, the legal issues presented by the appeal are still justiciable.
In any event, respondents exaggerate the "impossibility" of restoring the parties to the status quo ante. Nothing has changed with respect to the corporation but percentages of ownership. The money paid to appellants for their interest was deposited with the superior court and is presumably still there to be repaid to the corporation once appellants' ownership interests are restored to them.
II
(2a) In our review of the record in this case, it is clear that the trial judge, faced with the seemingly intractable conflict between the parties, attempted to fashion a fair and workable solution. While we commend him for his efforts, we must reverse the judgment on the grounds that the purported voluntary dissolution of West Coast, which set these proceedings in motion, was procedurally invalid and not supported by the evidence.
(3) "There is no independent right on the part of one or more stockholders in a corporation to compel the sale to them of the shares of stock of another." (Cubalevic v. Superior Court (1966) 240 Cal. App.2d 557, 562 [49 Cal. Rptr. 698].) Cubalevic was decided under the predecessor statute to section 2000. The reviewing court issued a writ to prohibit the superior court from proceeding with a hearing to determine the fair cash value of stock in a corporation on a cross-complaint to stay the involuntary dissolution of the corporation where the complaint to dissolve it had been dismissed. "There being no such independent right [to compel the sale of stock] it must follow that there could be no cause of action stated to compel such a sale whether by way of cross-complaint or counterclaim which would survive after dismissal of the action for involuntary dissolution of the corporation in which *1109 the remedy of purchase is given." (Cubalevic v. Superior Court, supra, at p. 562.)
By parity of reasoning, there can be no action under section 2000 to avoid the voluntary dissolution of a corporation through purchase of the initiating shareholders' stock unless they have, in fact, initiated a voluntary dissolution. Whether this has happened is both a question of procedure and a question of fact.
Section 1900, subdivision (a) provides: "Any corporation may elect voluntarily to wind up and dissolve by the vote of shareholders holding shares representing 50 percent or more of the voting power." (§ 1900, subd. (a).) Under section 1903, subdivision (a), "Voluntary proceedings for winding up the corporation commenced upon the adoption of the resolution of shareholders or directors of the corporation electing to wind up and dissolve, or upon the filing with the corporation of a written consent of shareholders thereto." (§ 1903, subd. (a).)
Furthermore, section 601, subdivision (f), in the chapter of the code that discusses shareholder meetings and consents, states, in relevant part: "Any shareholder approval at a meeting, other than unanimous approval by those entitled to vote, pursuant to Section ... 1900 ... shall be valid only if the general nature of the proposal so approved was stated in the notice of meeting or in any written waiver of notice." (§ 601, subd. (f), italics added.)
(2b) Appellants argue that the failure of West Coast to have followed the motion/waiver requirement set out in section 601, subdivision (f) renders that alleged dissolution invalid. Based on the plain language of the statute, we must agree.
The word "shall" expresses a mandatory intent unless the legislative history of the statute where it occurs shows otherwise. (Utah Property & Casualty Ins. etc. Assn. v. United Services Auto. Assn. (1991) 230 Cal. App.3d 1010, 1017-1018 [281 Cal. Rptr. 917].) The legislative history of section 601, subdivision (f) is set forth in the Legislative Committee comment to the statute: "Certain matters presented for action to shareholders are of such fundamental importance that specific notice of their proposed consideration at any meeting, including the annual meeting, is required by this subdivision." (West's Ann. Corp. Code (1990 ed.) § 601, subd. (f), p. 304.)
Respondents do not contend either that the required notice was given or that a written waiver was signed but instead advance the following arguments: the waiver by attendance provision of section 601, subdivision (e) *1110 applies; compliance with subdivision (f) was excused because West Coast is a small, family-held corporation that has always been informally run; and the notice, if any was due, should have been given by appellants since they were the ones who wanted to dissolve the corporation and thus they are estopped from objecting to the noncompliance with subdivision (f). None of these arguments has any merit.
Section 601, subdivision (e) provides in relevant part: "... Attendance of a person at a meeting shall constitute a waiver of notice of and presence at such meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters required by this division to be included in the notice but not so included, if such objection is expressly made at the meeting. Neither the business to be transacted at nor the purpose of any regular or special meeting of shareholders need be specified in any written waiver of notice, consent to the holding of the meeting or approval of the minutes thereof, unless otherwise provided in the articles or bylaws, except as provided in subdivision (f)." (§ 601, subd. (e), italics added.)
Respondents maintain that by attending the meeting at which they voted to dissolve the corporation without objecting to lack of notice, appellants waived their right to make such objection under section 601, subdivision (e). This argument ignores the exception in subdivision (e) that limits its application by reference to subdivision (f), which, as we have seen, requires a notice of meeting or a written waiver. As a matter of statutory construction, moreover, a specific statute takes precedence over a general statute on the same subject. (Spilman v. California Highway Patrol (1989) 212 Cal. App.3d 59, 63 [260 Cal. Rptr. 400].) Section 601, subdivision (f), because it deals specifically with notice and waiver with respect to voluntary dissolution under section 1900, takes precedence over the more general waiver provisions of section 601, subdivision (e).
Nor are respondents assisted by the two cases on which they rely for the proposition that formalities need not be observed in voluntary dissolutions under section 1900, ABC Brewing Corporation v. Commissioner of Int. Rev. (9th Cir.1955) 224 F.2d 483, and Herschfelt v. Knowles-Raymond etc. Co. (1955) 130 Cal. App.2d 347 [279 P.2d 104]. Neither case involves the issue of notice and waiver and since both predate enactment of section 601, subdivision (f), they are of no value in interpreting that statute.
Equally unpersuasive is respondents' argument that small, family owned corporations need not comply with corporate formalities such as section 601, *1111 subdivision (f). None of the cases they cite support the proposition that such corporations are excused from the provisions of that section by virtue of their size or ownership. To the contrary, as the legislative committee note to that section makes clear, the voluntary dissolution of a corporation is a matter of "such fundamental importance" that the Legislature enacted subdivision (f) to provide specific notice/waiver requirements for that transaction.
Finally, respondents contend that appellants are, in effect, estopped from raising the notice issue because it was up to them to provide appropriate notice since it was they who wanted to dissolve the corporation. There is no support for this argument. (4) The elements of estoppel require proof that (1) the party to be estopped was apprised of the facts giving rise to the estoppel; (2) the party intended that his or her conduct would be acted upon, or acted so that the party claiming estoppel had a right to believe it was intended; (3) the party claiming estoppel was ignorant of the true state of facts; and (4) the party claiming estoppel relied upon the conduct of the other to his or her detriment. (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 244-245 [5 Cal. Rptr.2d 782, 825 P.2d 767].) (2c) There was no showing of any kind that would support application of the doctrine of estoppel in this case.
In short, there was a total and inexcusable failure to comply with the notice/waiver requirements that are a prerequisite to a valid voluntary dissolution of a corporation and, therefore, the judgment must be reversed.
III
(5a) In addition to the procedural ground for reversal, the judgment must also be reversed because substantial evidence does not support the conclusion that appellants voted their stock to voluntarily dissolve the corporation.
(6) Upon review of the evidence, all conflicts are resolved in favor of the judgment and all legitimate and reasonable inferences are indulged to support it. (Earl of Loveless, Inc. v. Gabele (1991) 2 Cal. App.4th 27, 32 [2 Cal. Rptr.2d 829].) Moreover, we discard conflicting evidence and view only that evidence that would support the judgment. (Hinson v. Clairemont Community Hospital (1990) 218 Cal. App.3d 1110, 1125 [267 Cal. Rptr. 503].)
(5b) The pivotal claim in this proceeding of which proof by respondents was required was that appellants had voted to voluntarily dissolve West Coast under the provisions of sections 1900 and 601, subdivision (f). As is *1112 already clear, there was no evidence that the notice requirement was either observed or properly waived. Moreover, the declarations by respondents do not unequivocally establish that appellants voted to dissolve the corporation. Rather, those declarations show that an impasse had been reached between the brothers, that various methods of resolving the impasse had been suggested and rejected, and that it was the preference of appellants to sell the assets of the company, divide the money and go. What is missing from the declarations is the link between appellants' preference for this course of action and evidence that the preference was translated into formal action. Without this evidence, all that was established is that the parties were in negotiation. This was not evidence sufficient to base a finding that a voluntary dissolution had actually been voted by the appellants, a point the trial judge may have recognized when he referred to a "possible dissolution" having taken place. Before the provisions of section 2000 apply, however, an actual, not a possible, dissolution must be shown.
The judgment is reversed and remanded for further proceeding consistent with this opinion. Appellants to have their costs on appeal.[3]
Vogel (C.S.), J., and Hastings, J., concurred.
A petition for a rehearing was denied May 24, 1994.
NOTES
[1] Corporations Code section 2000 provides in relevant part: "(a) Subject to any contrary provision in the articles, in any suit for involuntary dissolution, or in any proceeding for voluntary dissolution initiated by the vote of shareholders representing only 50 percent of the voting power, the corporation, or if it does not elect to purchase, the holders of 50 percent or more of the voting power of the corporation (the `purchasing parties') may avoid the dissolution of the corporation and the appointment of any receiver by purchasing for cash the shares owned by the plaintiffs or by the shareholders so initiating the proceeding (the `moving parties') at their fair value.... [¶] (b) If the purchasing parties (1) elect to purchase the shares owned by the moving parties, and (2) are unable to agree with the moving parties upon the fair value of such shares, and (3) give bond with sufficient security to pay the estimated reasonable expenses (including attorneys' fees) of the moving parties if such expenses are recoverable under subdivision (c), the court upon application of the purchasing parties, either in the pending action or in a proceeding initiated in the superior court of the proper county by the purchasing parties in the case of a voluntary election to wind up and dissolve, shall stay the winding up and dissolution proceeding and shall proceed to ascertain and fix the fair value of the shares owned by the moving parties. [¶] (c) The court shall appoint three disinterested appraisers to appraise the fair value of the shares owned by the moving parties, and shall make an order referring the matter to the appraisers so appointed for the purpose of ascertaining such value.... The award of the appraisers or of a majority of them, when confirmed by the court, shall be final and conclusive upon all parties. The court shall enter a decree which shall provide in the alternative for winding up and dissolution of the corporation unless payment is made for the shares within the time specified by the decree.... Any shareholder aggrieved by the action of the court may appeal therefrom. [¶] (d) If the purchasing parties desire to prevent the winding up and dissolution, they shall pay to the moving parties the value of their shares ascertained and decreed within the time specified pursuant to this section, or, in case of an appeal, as fixed on appeal. On receiving such payment or the tender thereof, the moving parties shall transfer their shares to the purchasing parties."
All statutory references are to the Corporations Code unless otherwise indicated.
[2] We take judicial notice of the file in the writ proceeding, Abdullah v. Superior Court (June 11, 1992) B067265 (nonpub. opn.).
[3] In view of our disposition, it is not necessary to address appellants' further arguments regarding the deficiencies of the proceedings below. Their claim for restitution under Code of Civil Procedure section 908 should be addressed to the trial court on remand. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263745/ | 236 P.3d 775 (2010)
236 Or. App. 423
STATE of Oregon, Plaintiff-Respondent,
v.
Nicole Elaine TANNER, Defendant-Appellant.
07C43289; A138575.
Court of Appeals of Oregon.
Argued and Submitted December 22, 2009.
Decided July 28, 2010.
*776 Stephanie Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
*777 Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.[*]
SERCOMBE, J.
Defendant appeals a judgment of conviction on one count of delivery of marijuana for consideration. ORS 475.860(2).[1] Defendant assigns error to the trial court's denial of her motion to suppress evidence obtained after a traffic stop. She argues, first, that all evidence obtained in violation of Article I, section 9, of the Oregon Constitution as a result of an unlawful extension of the duration of a lawful traffic stop should have been suppressed.[2] In addition, defendant argues that her confession of her intent to sell the marijuana should have been suppressed because it was obtained in violation of Article I, section 12, of the Oregon Constitution as the result of allegedly coercive police tactics that occurred after she received Miranda warnings.[3] For the following reasons, we affirm.
We review the trial court's denial of defendant's motion to suppress for errors of law. ORS 138.220. The trial court's findings of historical fact are binding on appeal if there is sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). "If findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion." Id. The following relevant facts are either undisputed or are consistent with the trial court's findings of fact and its ultimate conclusion.
On March 17, 2007, at about 1:15 a.m., a Salem police officer, Cooper, responded to a dispatch call regarding suspicious persons who reportedly had been ringing the doorbell of a residence on a dead end street for approximately three minutes. While awaiting backup near the residence, Cooper stopped defendant after observing a traffic violation. During the stop, a second officer, Beal, arrived on the scene and assisted Cooper in investigating defendant's two passengers. That investigation precipitated the arrest of the front seat passenger, which, in turn, led Cooper to see what he suspected was a used methamphetamine pipe lying on the floorboard of the front passenger seat. Following that observation, defendant consented to a search of her car, which confirmed that it was a methamphetamine pipe on the floorboard and revealed 24 individual baggies of marijuana in the car's console. Cooper also discovered four bindles of cocaine in a backpack belonging to the front seat passenger.
While Cooper and Beal were cataloging all the evidence that had been found, Beal told Cooper that defendant was the alleged victim in a domestic violence case that was set to go to trial the next week; Beal was the investigating officer on that case. Cooper then spoke again with defendant to obtain her statement regarding the marijuana; he began by providing defendant with Miranda warnings. Cooper told defendant that, if she lied to him while he took her statement for his report and it was proved that she had lied, someone in her pending case could potentially find that false information and bring it up in court and that the person charged in that case might not be convicted. Defendant admitted that she had the marijuana with the intent to sell it. She stated that she had purchased the marijuana from the front seat passenger, who had told her that selling drugs was an easy way to make money. Defendant also stated that it was her first attempt at selling marijuana, that she believed she could get $20 for each individual baggie, and that she had not sold any of the *778 marijuana because she had not yet had the chance to do so.
Defendant was ultimately indicted on one count of delivery of marijuana for consideration. She moved to suppress certain evidence found during the stop and argued that the stop of her car was not justified by reasonable suspicion that a crime had been or was about to be committed.[4] Rather, defendant contended that the only justification for the stop was the observed traffic violations. Therefore, she contended that, based on the facts, "[t]he scope of the stop immediately exceeded the reason for the initial stop and continued to exceed the reasons for the additional stop for quite some time." (Emphases added.) Defendant later reiterated that "[t]he scope of the stop was unreasonably extended by the officer when he went after the passengers[.]" (Emphasis added.) Defendant also argued that her consent to search her car was not freely and voluntarily given and that the circumstances gave rise to a coercive atmosphere that required that she be given Miranda warnings before her consent to search. Finally, defendant also argued that any statements she made to the officers after she received the Miranda warnings were not voluntary; rather, defendant contended that those statements were coerced by Cooper's comments about the pending domestic violence case in which defendant was the alleged victim.
The trial court ultimately denied defendant's motion to suppress evidence in its entirety. In its letter opinion, the trial court reasoned, "Although the appellate courts have in recent cases * * * found that contacting passengers in traffic stop cases could result in suppression of evidence, those cases are distinguishable from the facts in this case." Defendant was convicted following a bench trial.
On appeal, defendant challenges the admissibility of certain evidence under Article I, sections 9 and 12, of the Oregon Constitution.[5] Under Article I, section 9, she argues that "all evidence obtained was inadmissible because the officer impermissibly extended the duration of the traffic stop without reasonable suspicion of criminal activity." (Emphasis added.) Defendant contends that all evidence and statements obtained by Cooper "flowed directly from the unlawful extension of the stop" and that the state failed to establish that any portion of the evidence was obtained "independent of the illegality." In particular, defendant contends, in essence, that neither her consent nor the Miranda warnings were intervening events that removed the taint of illegality from the resulting evidence. Defendant also argues that, even if she was not impermissibly detained, under Article I, section 12, her confession that she possessed the marijuana with intent to sell was not voluntarily made. Defendant does not renew her argument that she should have been given Miranda warnings before her consent to search her car.
We begin by determining whether defendant has preserved one of the claims of error she now assertsthat the trial court erred in admitting evidence obtained because Cooper impermissibly extended the duration of the stop of defendant. As we recognized in State v. Walker, 234 Or.App. 596, 606, 229 P.3d 606 (2010), "we have a prudential obligation to determine sua sponte whether a contention has been preserved for appellate review. That obligation arises from considerations of jurisprudential comity and procedural fairness." (Citations omitted.) To preserve a claim of error, "a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to *779 consider and correct the error immediately, if correction is warranted." State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000).
Defendant's arguments below focused solely on an impermissible extension of the scope of the stop. Defendant's focus on an extensionor, more aptly, an expansionof the subject matter of the stop is made especially clear by her contention to the trial court that "[t]he scope of the stop immediately exceeded the reason for the initial stop and continued to exceed the reasons for the additional stop for quite some time." (Emphases added.) At no point did defendant engage the trial court, or the prosecutor, in a discussion regarding an impermissible extension of the duration of the stop.
In State v. Amador, 230 Or.App. 1, 8, 213 P.3d 846 (2009), rev. den., 347 Or. 533, 225 P.3d 43 (2010), the defendant raised two challenges on appeal to the lawfulness of a search that occurred during a traffic stop: (1) "that the officer unlawfully expanded the scope of the traffic stop by asking about drugs or weapons without reasonable suspicion" and (2) "that the officer unlawfully extended the duration of the stop." We rejected the defendant's first legal theory on its merits and then concluded that the defendant's second legal theory was unpreserved. In particular, as to that second legal theory, we held:
"Here, of the two discrete legal theories defendant advances on appeal, he presented only one to the trial court. Defendant engaged the prosecutor and the trial court in an extensive colloquy regarding the lawfulness of the officer's actions, including an extended discussion of our holding in [State v.] Amaya [, 176 Or.App. 35, 29 P.3d 1177 (2001), aff'd, 336 Or. 616, 89 P.3d 1163 (2004),] and the proper construction of ORS 810.410. What defendant did not do, however, was argue that the officer had unlawfully extended the duration of the encounter. Defendant's characterization of the officer's questions as `basically bootstrapping a traffic stop into a fishing expedition for drugs or weapons' aptly summarizes the breadth of defendant's argument to the trial court, an argument that dealt exclusively with the scope of the officer's questions, not the duration of the encounter. Because defendant failed to preserve his argument that the officer unlawfully extended the duration of the encounter, we do not address the meritsif anyof that argument."
Id. at 9-10, 213 P.3d 846 (third emphasis added; other emphases in original; omitted).
In this case, we conclude, much as we did in Amador, that defendant failed to preserve her argument that Cooper unlawfully extended the duration of the stop. That failure is particularly significant when it could have affected the evidentiary record of the hearing on the motion to suppress. A more particular and time sensitive chronology of events may be necessary to evaluate contentions about extension of the duration of a stop, as opposed to its scope. Therefore, because defendant failed to articulate to the trial court her position that Cooper unlawfully extended the duration of the stop, we do not address the merits of that argument for the first time on appeal.
We turn to defendant's sole remaining argument, that her confession that she possessed the marijuana with intent to sell was not voluntarily made as required under Article I, section 12. In particular, defendant asserts that (1) Cooper used the information regarding the pending domestic violence case to "instill fear in defendant that if she was not completely honest with him, that the assailant in the assault case would not be convicted"; (2) "[i]t was only after Cooper used [that tactic] that defendant admitted that she intended to sell the marijuana"; and (3) "[t]he state did not present any evidence that defendant's statements were not made out of fear of retribution from the offender in the assault case once he was freed." Therefore, defendant contends that the state did not meet its burden to prove that her statements were voluntarily made.
The state maintains that defendant's confession, in fact, was voluntary. The state asserts that, "[n]ot only had [defendant] been advised of her Miranda rights, but [Cooper] used no force and made no threats or promises to gain her admission." Rather, "Cooper's truthful explanation to defendant that any lie she told him during this investigation *780 might be used against her in an upcoming unrelated trial was neither a promise nor a threat, and it by no means compelled her to answer any question or make any admission." For the reasons that follow, we agree with the state that the confession was voluntary.
As noted above, Article I, section 12, provides that no person may be "compelled in any criminal prosecution to testify against himself." Under that constitutional provision, the state has the burden to prove, by a preponderance of the evidence, that any admissions or confessions by a defendant were voluntarily made. See, e.g., State v. Stevens, 311 Or. 119, 135-37, 806 P.2d 92 (1991); State v. Goree, 151 Or.App. 621, 631, 950 P.2d 919 (1997), rev. den., 327 Or. 123, 966 P.2d 216 (1998). A defendant's admissions "`may be suppressed as involuntary either because they were the product of coercion or because the defendant's Miranda rights were violated.'" State v. Breazile, 189 Or.App. 138, 143, 74 P.3d 1099 (2003) (quoting State v. Gable, 127 Or.App. 320, 324, 873 P.2d 351, rev. den., 319 Or. 274, 877 P.2d 1202 (1994)). Here, defendant has challenged the voluntariness of her confession on the basis that it was compelled out of fear i.e., that it was coerced; she does not argue that the confession should be suppressed because her Miranda rights were violated.
Voluntariness requires that "`neither duress nor intimidation, hope nor inducement caused [the] defendant to' confess." State ex rel. Juv. Dept. v. Deford, 177 Or.App. 555, 569, 34 P.3d 673 (2001) (quoting State v. Spanos, 66 Or. 118, 120, 134 P. 6 (1913)) (alteration in Deford). "The test for voluntariness under Article I, section 12, * * * is whether, under the totality of the circumstances, the waiver of rights and the confession were the product of an essentially free, unconstrained and informed choice or whether the accused's capacity for self-determination was critically impaired." State v. Burks, 107 Or.App. 588, 592, 813 P.2d 1071, rev. den., 312 Or. 151, 817 P.2d 758 (1991). Threats, promises, inducements, and similar overreaching by the police have consistently led to suppression of a defendant's resulting statements and confessions; by contrast, in the absence of police overreaching, challenges to the voluntariness of a defendant's statements or confessions have consistently failed. Deford, 177 Or.App. at 569-70, 34 P.3d 673. Under Article I, section 12, "police overreaching is an essential predicate of a challenge to the admissibility of a statement or a confession as involuntary." Id. at 572, 34 P.3d 673.
"In reviewing the voluntariness of a defendant's statements, we are bound by the trial court's findings of historical fact, but must assess independently the ultimate legal determination of voluntariness." State v. Acremant, 338 Or. 302, 324, 108 P.3d 1139, cert. den., 546 U.S. 864, 126 S.Ct. 150, 163 L.Ed.2d 148 (2005). Helpful in guiding our assessment here are State v. Linn, 179 Or. 499, 173 P.2d 305 (1946), and State v. Tenbusch, 131 Or.App. 634, 886 P.2d 1077 (1994), rev. den., 320 Or. 587, 890 P.2d 993, cert. den., 516 U.S. 991, 116 S.Ct. 523, 133 L.Ed.2d 430 (1995). In Linn, the Oregon Supreme Court held that the defendant, who was prosecuted for attempted rape, was influenced to execute a confession by "the deliberate employment of inducements and threats" and that "the receipt in evidence of that * * * confession was error since it was not shown to have been voluntary." 179 Or. at 514, 173 P.2d 305. The court noted that the circumstances in that case constituted neither
"a mere adjuration to tell the truth, nor a mere statement that it would be better to tell the truth. The inducements went much further and were calculated to induce a confession of guilt. In addition to the specifically undenied testimony of the defendant that if defendant did it `the hard way' they would fight him to the last inch, the testimony of the officers themselves discloses a subtle attempt to instill in the mind of the defendant (1) fear of a seven year sentence and of official hostility if he refused to confess and (2) expectation of leniency if he admitted the crime."
Id. at 512-13, 173 P.2d 305 (emphasis added).[6]
*781 We reached the opposite conclusion in Tenbusch. There, the defendant had contended that his obligation to take a polygraph and be truthful about his sexual history, on penalty of possible revocation of his probation, rendered his statements involuntary. 131 Or.App. at 640, 886 P.2d 1077.[7] We noted that the privilege against self-incrimination found in Article I, section 12, and the Fifth Amendment to the United States Constitution is not self-executing and must be claimed or be deemed lost. Id. at 641, 886 P.2d 1077. We stated:
"In this case, the conditions of defendant's probation require that he complete sexual offender treatment and be honest about his sexual history. Although the latter condition is more specific than the condition in [Minnesota v.] Murphy, [465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984),] requiring truthfulness `in all matters,' the overriding focus of both conditions is on truthfulness. As in Murphy, defendant's probation is conditioned on not making false statements; thus, the conditions represent the authority of the state to revoke defendant's probation if he refuses to take the polygraph or if he answers questions untruthfully. However, the conditions neither expressly nor implicitly foreclose his right to object to making self-incriminating statements. Accordingly, the conditions of defendant's probation do not force him to choose between making incriminating statements and jeopardizing his conditional liberty. His third option, not foreclosed by those conditions, is to invoke his constitutional right against compelled self-incrimination.
"We conclude that the conditions of defendant's probation do not, by their terms, constitute a threat by the state to penalize defendant for invoking the privilege against compelled self-incrimination. As noted by the state, defendant does not contend, and the trial court did not find, that defendant was ever told or led to believe that his probation could be revoked if he exercised the privilege. Under the rule articulated in Murphy, the threatened penalty must be specifically addressed to the exercise of the privilege against self-incrimination for defendant to claim that he was compelled to speak. Because no such threat was made in this case, defendant's failure to exercise the privilege in a timely manner precludes him from now claiming that his answers were compelled in violation of Article I, section 12, and the Fifth Amendment."
Id. at 644-45, 886 P.2d 1077 (omitted; emphases in original).
Returning to the case at hand, Cooper's testimony at the hearing shows only that the police conduct at issue involved a mere adjuration to tell the truth along with a truthfulnot a fraudulentcomment regarding the possible consequences of lying; the conduct did not amount to a threat, subtly implied or otherwise, directed at the exercise of defendant's privilege against self-incrimination. Defendant was not compelled to speak. Rather, she was encouraged that, if she spoke, she should do so truthfully. Cooper testified regarding his comments to defendant about the pending domestic violence case as follows:
"[Defense counsel:] Did you ever discuss that with [defendant] about not consenting or not cooperating with you and how that might affect her [pending] case?
"* * * * *
"[Cooper:] * * * During the time of talking to [defendant], taking her statement about what herthe marijuana she had claimed is when I spoke to her about her pending case. * * *
"* * * * *
"[Defense counsel:] Did you tell her that if she didn't be truthful and cooperate *782 with you it could go bad against her in court?
"[Cooper:] I stated to her that if she were to lie to me now while taking her statement for my report and it was proved that she was lying to me on my case, someone in her case where she was a victim of a crime, another attorney for, say, the suspectthe defendant in that case could usecould potentially find thatbasically false information that she's giving to me and bring that up in her court case with that other defendant.
"* * * * *
"[Defense counsel:] Did you tell her that maybe that person could be released?
"[Cooper:] I don't recall saying that. Maybe not convicted of the crime. The exact detail I don'tI can't recall.
"[Defense counsel:] Okay. But was it obvious that you were explaining to her that if she didn't cooperate and be truthful to you it could result in the person who was in jail who had beat the holy out of her could be released? Did you leave that impression with her?
"[Cooper:] I believeI don't know if the way he's stating it
"The Court: Well, how do you think you stated it?
"[Cooper:] Basically that she needed to be honest and truthful to me in this police report because at that point I knew that * * * she was going to be receiving a delivery chargea substantial charge, and that information might become known to the defendant from the
"* * * * *
"[Cooper:] And thatmy report, if I wrote my statement where it appeared that she was lying and obvious to someone that she was lying
"* * * * *
"[Cooper:]it might comeher credibility as a victim and her statements as a victimnot knowing any of the exact details of her case
"* * * * *
"The Court: Anyway, so you just made comments that could affect that other case if you lie to me in this case because they're going to get copies of these reports because the State's going to have to tell them you've been arrested?
"[Cooper:] Yes.
"The Court: And if they don't, that could affect their case?
"[Cooper:] Yes[.]"
As revealed by Cooper's testimony, his comments about the pending domestic violence case addressed only the possible consequences of lying to him in any statements for his report; his comments did not address any consequences of not speaking to him in the first instance. Indeed, before her confession, defendant had been advised of her Miranda rights, which include the right to remain silent.
Although we are sensitive to defendant's status as the alleged victim in a domestic violence case, that status does not transform all police comments related to her pending case into inappropriate threats or police overreaching. Because there were no coercive tactics used by the police in this case, the trial court did not err in admitting defendant's confession that she possessed the marijuana with intent to sell.
Affirmed.
NOTES
[*] Brewer, C.J., vice Edmonds, P.J.
[1] ORS 475.860 provides, in part:
"(1) It is unlawful for any person to deliver marijuana.
"(2) Unlawful delivery of marijuana is a:
"(a) Class B felony if the delivery is for consideration.
"(b) Class C felony if the delivery is for no consideration."
[2] Article I, section 9, provides, in part, "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]"
[3] Article I, section 12, provides, in part, "No person shall * * * be compelled in any criminal prosecution to testify against himself."
[4] Throughout the proceedings before the trial court, defendant did not cite any specific provisions of the Oregon Constitution. However, she presented arguments based on Oregon case law that sufficiently identified to the trial court the Oregon constitutional provisions at issue in this case.
[5] Defendant also challenges the evidence under the Fourth Amendment to the United States Constitution. As noted by the state, defendant did not challenge the disputed evidence on federal grounds before the trial court. Therefore, that challenge is unpreserved, and we do not consider it. See State v. Wyatt, 331 Or. 335, 341, 15 P.3d 22 (2000) (discussing preservation).
[6] To instill "fear of a seven year sentence," an officer mentioned to the defendant another case, where another man, who had been involved with the same underage female victims, had been sentenced to seven years in prison. Linn, 179 Or. at 504, 173 P.2d 305.
[7] The defendant, who was not given Miranda warnings, did not contend that he was entitled to such warnings before being asked about his sexual history. 131 Or.App. at 640 n. 4, 886 P.2d 1077. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337806/ | 183 S.E.2d 553 (1971)
279 N.C. 398
STATE of North Carolina
v.
James ALLRED.
No. 47.
Supreme Court of North Carolina.
October 13, 1971.
*557 Atty. Gen. Robert Morgan and Asst. Attys. Gen. Wm. F. Briley and Thomas B. Wood, for the State.
Dock G. Smith, Jr., Robbins, and Pittman, Staton & Betts by William W. Staton, Sanford, for defendant appellant.
BOBBITT, Chief Justice.
Defendant assigns as error the denial of his motion under G.S. § 15-173 for judgment as of nonsuit. Decision requires consideration of the evidence in the light most favorable to the State. State v. Vincent, 278 N.C. 63, 64-65, 178 S.E.2d 608, 609 (1971), and cases cited.
The evidence is uncontradicted as to this crucial fact: The death of Tommy at Robbins Crossroads on October 19, 1969, was caused by a .25 bullet fired from a .25 automatic pistol.
There is no testimony that defendant had a .25 automatic pistol at Robbins Crossroads on October 19, 1969. Nor is there testimony that defendant fired any pistol on that occasion. The State relies upon circumstantial evidence.
To withstand defendant's motion for judgment as of nonsuit, there must be substantial evidence against the accused of every essential element that goes to make up the crime charged. Whether the State has offered such substantial evidence presents a question of law for the court. State v. Stephens, 244 N.C. 380, 383-384, 93 S.E.2d 431, 433 (1956); State v. Horton, 275 N.C. 651, 657, 170 S.E.2d 466, 471 (1969). In the present case, the crucial question is whether the State offered substantial evidence that the fatal shot was fired by defendant.
The only evidence which purports to connect defendant with a .25 pistol is the testimony *558 of Tommy's father to the effect that defendant had told him, "about a month and a half" before Tommy's death, that he (defendant) had bought a .25 automatic pistol, "blue steel." There is no evidence such a pistol was seen in defendant's possession at any time before or after Tommy's death.
An attempt to reconcile the conflicting testimony would be futile. Each version differs sharply from the other, particularly on the issues of whether defendant had "a gun" and, if so, what he did with it.
According to Elkins: After he fired the three shots into the ground in front of the Allred boys, Donald, Corky and Tony, and after Tommy got out of his car and called for his pistol, defendant grabbed him (Elkins) and stuck a "small handgun" in his face. He did not know what color it was or anything about it. He heard no shot other than the three shots he (Elkins) fired.
According to McNeill: A "heavy-set fellow" and Tommy scuffled as they went to the back of McNeill's car, a white Oldsmobile. When the "heavy-set fellow" returned, he had "a little short gun" in his hand. McNeill could not identify any person in the courtroom as the "heavy-set fellow."
According to Deaton: Although he saw defendant grab Tommy by the hair of his head and knock him down, the only gun he saw was the gun Tommy had, "a nickel-plated, short gun, four or five inches long." He did not see defendant fire or have a gun.
According to Bibey: After Elkins had fired three shots from Tommy's gun, Tommy, Elkins and defendant came together "to retrieve" Tommy's gun. Meanwhile, a fourth shot was fired. Tommy broke away from the scuffling and leaned against a white Oldsmobile. The white Oldsmobile started away and Tommy fell. The only gun referred to by Bibey is Tommy's .22 pistol which Elkins had fired.
There is evidence which indicates hostility between Tommy and Elkins (and perhaps others) on the one hand and Donald, Corky and Tony Allred (and perhaps others) on the other hand. There was evidence from which it may be inferred that the three Allreds who were hostile to Tommy and Elkins were being transported on October 18, 1969, in defendant's red and white pickup truck, and that occupants of that truck challenged Tommy to come to Robbins Crossroads. There was evidence that Tommy was equipped with a loaded pistol and additional bullets. There was evidence that Tommy and defendant were good friends and evidence from which it may be inferred that defendant intervened to keep Tommy from inflicting injury or death by use of his .22 pistol.
There was positive evidence that at least one unidentified person, a "little bitty boy," had a pistol. Evidence as to the number of persons present and the number of shots fired at Robbins Crossroads during a period of hostility and confusion suggests that other unidentified persons had pistols.
The threatening language attributed to defendant by Deaton and Bibey related only to what defendant would do in the future.
It is well established that "(c)ontradictions and discrepancies, even in the state's evidence, are for the jury to resolve, and do not warrant nonsuit." 2 Strong, N.C. Index 2d, Criminal Law § 104. Ordinarily, such contradictions and discrepancies bear solely upon the weight to be given the testimony of a witness, a matter within the province of the jury. State v. Satterfield, 207 N.C. 118, 176 S.E. 466 (1934).
Here the question is whether the State has offered substantial evidence that the fatal shot was fired by defendant. The evidence on which the State relies to establish this crucial fact involves more than mere contradictions and discrepancies. The testimony of McNeill, Deaton and Bibey relate to three separate and distinct occasions, each involving different circumstances *559 immediately preceding Tommy's death. The version on which the State relies is not disclosed. The court's charge does not review any contention of the State with reference to the occasion and circumstances of Tommy's death.
Although the evidence raises suspicions as to defendant's involvement and possible guilt in respect of the death of Tommy, the conclusion we reach is that the State has failed to offer substantial evidence that the bullet which caused Tommy's death was from a .25 automatic pistol fired by defendant. On account of the inadequacy of the evidence in respect of this essential element of the crime charged, we hold the circumstantial evidence insufficient for submission to the jury. For error in failing to allow defendant's motion for judgment as of nonsuit, the judgment of the court below is reversed.
Reversed. | 01-03-2023 | 10-30-2013 |
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