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https://www.courtlistener.com/api/rest/v3/opinions/1337801/ | 256 S.C. 490 (1971)
183 S.E.2d 321
Mitchell V. SANDERS, by his Guardian ad Litem, C.E. Parris, Appellant,
v.
WESTERN AUTO SUPPLY COMPANY, Respondent.
19268
Supreme Court of South Carolina.
August 16, 1971.
*491 Messrs. Odom, Nolen & Foster, of Spartanburg, for Appellant.
*492 Messrs. Thomas W. Whiteside and Horace C. Smith, of Spartanburg, for Respondent.
*493 August 16, 1971.
BRAILSFORD, Justice.
Five-year-old Mitchell Sanders was seriously injured when his right hand came in contact with the blade of a riding lawn mower being operated by his father. He sued Western Auto Supply Company, the vendor of the mower, alleging that the cause of his injury was the defective design of the machine, which made it unreasonably dangerous to those likely to come in contact with it while being used for its intended purpose. By its answer, the defendant denied all allegations charging it with fault, and pled that the sole cause of plaintiff's injury was his own conduct in "running into or falling into and about the lawn mower being operated by his father * * *."
Upon the trial of the case, the jury returned a verdict for the defendant. The court refused plaintiff's motion for a new trial, and plaintiff appeals, charging error in the exclusion of certain testimony and in the refusal of requested instructions to the jury.
The defendant is a chain retailer, and the lawn mower was sold under its trade name. The case was tried on the theory that its responsibility was that of a manufacturer, and we so assume.
The twenty-four inch mower blade and its metal housing were suspended beneath the chassis. The flat top of the housing served as a deck on which the seated operator's feet rested. A lip, extending some four inches downward from the edge of the deck to near ground level, completely surrounded the blade except at the discharge chute an opening, some ten or twelve inches in length, along the side of the blade housing, immediately behind the right front wheel. Here, the slightly recessed deck extended only one and one-half inches beyond the revolving blade, which was otherwise guarded at the chute by a single bar located near ground level and bolted at each end to the outside of the housing lip. The edge of the deck was about an inch short of extending over the bar.
*494 On the occasion of his injury, Mitchell, suddenly and unexpectedly, undertook to jump or climb upon the mower, or upon his father's back, from the rear. It is inferable from the evidence that he fell forward, his hand striking the deck, then slipping off the edge at the discharge chute and engaging the bar, which deflected it into the opening and injury-producing blade.
A well-qualified expert witness testified that the design of the blade housing at the discharge chute was defective from a safety standpoint in that the blade tips extended to within one and one-half inches of the edge of the deck, which was much closer than was customary in the trade, and the protective bar protruded beyond the edge of the deck, instead of being flush with or inside the opening, as was usual in the trade. As to the significance of the location of the bar, the witness testified:
"Q. So Why would the bar be situated even with or inside the opening?
"A. So that anyone any foot or hand or anything else going down wouldn't catch on that bar.
"Q. If an object were approaching this bar from a vertical angle or partially vertical angle, what would the location of the bar do to that object?
"A. If it hit on that bar, it would either bounce on the outside if it hit the outside edge of it or on the inside if it hit on the inside of the center of that bar.
"Q. If the bar were on the inside of that opening and an object came from a vertical angle, what would happen?
"A. It wouldn't hit the bar. The bar would be protected by the housing."
After testifying that extension of the deck over the chute would have made the machine safer, the witness was asked on cross-examination, in effect, whether he intended to testify that if this had been done, "this child could not possibly get his hand in it?", he replied, "The way he fell he couldn't."
*495 Photographs of the mower, featuring the discharge chute, and the machine itself were in evidence. Overruling defendant's motion for a directed verdict, the trial judge held that the testimony and exhibits raised a submissible issue as to defendant's actionable negligence. This ruling is not challenged here. The issues on appeal are limited to claimed error in excluding certain testimony offered by plaintiff and in refusing certain instructions requested by him.
After plaintiff's expert witness had testified that one of the hazard-producing defects in the design of the discharge chute was that the housing did not extend over the protective bar, he was asked to estimate the cost of so extending it. Defendant's objection to this inquiry was sustained. Whereupon, counsel inquired; "Your Honor, may we have a conference in which we may submit authorities?" The court denied this request, stating: "No sir. Expense has nothing to do with that."
The factual issue for the jury was whether the defendant by its design of the discharge chute negligently created an unreasonable hazard which caused plaintiff's injury. This inquiry necessarily involved the feasibility, both from an economic and functional standpoint, of modifying the design so as to reduce or avoid the hazard. Therefore, the trial judge was mistaken in excluding the evidence upon the ground that cost had nothing to do with the issue. However, it is obvious from an inspection of the machine that the alleged fault in design could have been remedied without significant increase in the cost of defendant's product. If there was error in excluding testimony on so obvious a point, plaintiff was not prejudiced thereby.
Plaintiff excepts to the refusal of the judge to charge a request paraphrased from Mickle v. Blackmon, 252 S.C. 202, 166 S.E. (2d) 173 (1969), as follows:
"The duty of care owed by the seller of a chattel is to take reasonable precautions in the light of the known risk, balancing the likelihood of harm, and the gravity of harm if *496 it should happen, against the burden of feasible precautions which would tend to avoid or minimize the harm."
The duty of care owed by the defendant in the design of its product was governed by general principles of negligence law which, in this respect, were adequately covered in the general charge. The court was not obliged to instruct the jury in the language selected by plaintiff from the Mickle opinion, which was not innovative and stated no principle of law not fairly encompassed by the instructions.
Plaintiff next complains of the refusal of a requested instruction, again based upon the Mickle opinion, respecting an automobile manufacturer's duty to minimize risk of injury to collision victims. The instruction was inapposite to the facts of this case and was properly refused.
Plaintiff's charge that the court erred in refusing his requested instructions on the issue of causation raises a much more serious question. We quote the request in relevant part:
"Negligence, to render a person liable, need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes, is the proximate cause of the injury. So that where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient cause, without which the injury would not have resulted, or to as great an extent. * * *"
That this request embodied a sound proposition of law is undisputed. See 14 West's South Carolina Digest, Negligence, 61-62 (1952), and supplementary material. However, the order overruling plaintiff's motion for a new trial expresses the view that the instruction was inappropriate because there were no contributing or efficient causes of plaintiff's injury other than the delict charged against defendant. But the defendant specifically pled that plaintiff's injury was "caused solely and proximately by (his) running into or falling into" the lawn mower.
*497 The jury was instructed that plaintiff could recover only upon proof that defendant was negligent and that its negligence was the proximate cause of plaintiff's injury. Both negligence and proximate cause were adequately defined.[*] The jury was also instructed that there was no issue in the case as to whether the father was negligent and that, because of his immaturity, the child could not be charged with negligence.
While these instructions were adequate to eliminate from consideration any issue of negligence by the father or child as a defense, the jury could still have believed, as the verdict indicates, that the conduct of either or both was a more direct cause of the injury than any defect in design. An instruction on concurrent causation was, therefore, required to properly guide the jury in its deliberations. Since the requested instruction stated a sound principle of law, which was applicable to the case and not otherwise covered by the charge, its refusal was error, requiring a new trial.
Plaintiff complains of error in the court's refusal to charge the following request, "In order for the Plaintiff to recover in this action, he must establish, by the preponderance of the evidence, the following facts:
"(a) That there was a defect in the product as a result of the manufacturing process or design,
"(b) That the defect made the product unreasonably dangerous, and
"(c) That the injury to the Plaintiff resulted from the defect."
which he construes as an instruction on "breach of warranty in contract." Suffice it to say that the request flatly contradicted *498 the general charge of the court, which conformed to the actionable negligence theory on which the case was tried and to which no exception was taken. The court did not err in refusing it.
Two additional questions relating to the instructions are argued in the brief. They are not likely to recur upon retrial and need not be considered.
Reversed and remanded.
MOSS, C.J., and LEWIS, BUSSEY and LITTLEJOHN, JJ., concur.
NOTES
[*] Quoting from the charge: "Now, proximate cause literally means the efficient cause, the direct cause, that cause without which there would not have been personal injury. That's somewhat technical language, so I'll rephrase it in a different manner. The plaintiff must show that the defective design, if that has been proved, due, caused, occasioned or resulted in the child's coming into contact with the revolving cutting agent. * * *" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338455/ | 105 S.E.2d 94 (1958)
249 N.C. 31
F. A. McDANIEL, Jr.,
v.
Reverend Aubrey T. QUAKENBUSH and Fred Weaver et al., Trustees, and Yates Harbison et al., Deacon Board of the First Baptist Church of Kings Mountain, North Carolina.
No. 161.
Supreme Court of North Carolina.
October 8, 1958.
*97 Mullen, Holland & Cooke, Gastonia, for defendants-appellants.
Davis & White, Kings Mountain, Kennedy, Mahoney & Mull, Horn & West, Shelby, for plaintiffs-appellees.
DENNY, Justice.
The appellants assign as error the overruling of their demurrer and the continuance of the restraining order until the final hearing.
A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action should be overruled if the complaint, when liberally construed in favor of the pleader, alleges facts sufficient to constitute a cause of action. Or, to put it another way, if any portion of a complaint alleges facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be reasonably and fairly gathered from it, the pleading will survive a demurrer. Bryant v. Little River Ice Co., 233 N.C. 266, 63 S.E.2d 547, and cited cases. See also Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; Workman v. Workman, 242 N.C. 726, 89 S.E.2d 390; Batchelor v. Mitchell, 238 N.C. 351, 78 S.E.2d 240.
A demurrer admits the truth of all allegations of fact contained in the complaint and inferences of fact reasonably drawn therefrom. Wiscassett Mills Co. v. Shaw, 233 N.C. 71, 62 S.E.2d 487; Read v. Young Roofing Co., 234 N.C. 273, 66 S.E.2d 821; Stribbling v. Lamm, 239 N.C. 529, 80 S.E.2d 270; Belch v. Perry, 240 N.C. 764, 84 S.E.2d 186.
We are not dealing with the merits of this controversy but only with the allegations of the complaint. Star Furniture Co. v. Carolina & N. W. R. R. Co., 195 N.C. 636, 143 S.E. 242. However, whether the meeting on 23 October 1957 was properly or improperly called, if the plaintiff can show upon the final hearing that the result of the election complained of was brought about by undue influence, coercive, or fraudulent means, as alleged, the election should be set aside.
The restraining order as we interpret it, restrains the defendants from selling and transferring any of the real estate belonging to the First Baptist Church of Kings Mountain, North Carolina, and also forbids them from disposing, transferring, or expending any portion of the building fund of the church in connection with the relocation of the church, until the final hearing on this cause, unless otherwise ordered by the court.
We do not interpret the order complained of to restrain the church, in any manner, from holding an election bearing on the question of the removal of the church, or any other question that may properly come before it, save and except in the respects enumerated hereinabove. The church is free to approve or to rescind the action taken on 23 October 1957, if it desires to do so.
Since it appears from the record that this church has no written constitution or bylaws, the manner of calling meetings for the purpose of ascertaining the will of the members of the church should be governed by the customs and practices of the church as they have been observed and practiced through the years relating to such matters. A majority of such membership, ordinarily, controls the right to the use and title to church property. Reid v. Johnston, 241 N.C. 201, 85 S.E.2d 114; Dix v. Pruitt, 194 N.C. 64, 138 S.E. 412. There is no doctrinal departure involved in this action as in Reid v. Johnston, supra.
The rulings of the court below, overruling the demurrer and continuing the *98 restraining order until the final hearing, will be upheld.
Affirmed.
PARKER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338984/ | 510 S.E.2d 702 (1999)
Linda R. SHARP, Plaintiff,
v.
Carole S. GAILOR, Womble Carlyle Sandridge & Rice, Gailor & Associates, Marilyn Forbes, Karen Britt Peeler, A. Elizabeth Barnes, John Hester, and Lawyers Mutual Liability Insurance Company Of North Carolina, Defendants.
No. COA98-284.
Court of Appeals of North Carolina.
February 2, 1999.
*703 Linda R. Sharp, Kill Devil Hills, pro se.
Hornthal, Riley, Ellis & Maland, L.L.P. by L.P. Hornthal, Jr., Elizabeth City, for defendants-appellees Carole S. Gailor; Womble Carlyle Sandridge & Rice, PLLC; Gailor & Associates, PLLC; Marilyn Forbes; and A. Elizabeth Barnes.
Baker, Jenkins, Jones & Daly, P.A. by Ronald G. Baker and Roger A. Askew, Ahoskie, for defendants-appellees Karen Britt Peeler, John Hester, and Lawyers Mutual Liability Insurance Company of North Carolina.
LEWIS, Judge.
Plaintiff filed her original complaint in this case on 26 November 1996 and an amended complaint on or about 27 May 1997. According to her amended complaint, plaintiff separated from her husband on 23 January 1984. She hired D. Keith Teague, Esq. to represent her in the ensuing action for equitable distribution. Mr. Teague withdrew on 3 July 1989. He was replaced by defendant Carole Gailor, Esq., who was then a partner with defendant Womble Carlyle Sandridge & Rice ("Womble Carlyle"). On or about 21 September 1989, plaintiff, Gailor, and Womble Carlyle entered into a retainer agreement under which Gailor and Womble Carlyle were to represent plaintiff in the equitable distribution case.
An equitable distribution hearing was held from 5 August 1991 to 11 August 1991 before a referee in Dare County. Plaintiff was apparently represented by defendants Gailor, Marilyn Forbes, Esq., and A. Elizabeth Barnes, Esq.; it appears that Ms. Forbes and Ms. Barnes were associates with Womble Carlyle. Judgment in the equitable distribution was entered 19 April 1993, and some associates with Womble Carlyle, including defendant Barnes, prepared an appellate brief and record and filed it on 4 October 1993. In an opinion filed 18 October 1994, a unanimous panel of this Court affirmed the order of equitable distribution, and the Supreme Court subsequently denied discretionary review. Sharp v. Sharp, 116 N.C.App. 513, 449 S.E.2d 39, disc. review denied, 338 N.C. 669, 453 S.E.2d 181 (1994).
Plaintiff's amended complaint alleges, in eleven separate counts, misfeasance and nonfeasance by the defendants in connection with plaintiff's equitable distribution case. On defendants' motion, the trial court dismissed all of plaintiff's claims for failure to state a claim upon which relief can be granted. See N.C.R. Civ. P. 12(b). Plaintiff appeals.
Our review of the trial court's decision is limited to those arguments which plaintiff has chosen to make in her appellate brief.
The function of all briefs required or permitted by these rules is to define clearly the questions presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon. Review is limited to questions so presented in the several briefs.
N.C.R.App. P. 28(a).
Plaintiff's first argument is that her claims for legal malpractice should have withstood defendants' motion to dismiss. North Carolina General Statutes section 1-15(c) (1996) provides,
Except where otherwise provided by statute, a cause of action for malpractice arising out of the performance of or failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action....
Plaintiff filed her complaint on 26 November 1996. Her legal malpractice claims are barred unless they are supported by acts or omissions occurring after 26 November 1993.
*704 On pages eight and nine of her brief, plaintiff argues that the following acts and/or omissions by some of the defendants, alleged in her amended complaint as having occurred after 26 November 1993, constitute legal malpractice: (1) The failure of defendants Gailor, Womble Carlyle, Barnes, and Forbes to correct material errors in the appeal they had prepared and filed with this Court on 4 October 1993; (2) billing plaintiff for the preparation of her appeal; (3) reviewing the opinion this Court filed 18 October 1994, in the case Sharp v. Sharp; (4) billing plaintiff for reviewing this Court's opinion in Sharp v. Sharp; (5) preparing a motion for discretionary review on 22 November 1994; (6) failing to ask this court for a rehearing; and (7) defendant Gailor's "fail[ing] to follow the judgment handed down and affirmed by the NC [sic] Court of Appeals" and "ma[king] a `deal' which was not favorable to Plaintiff with the attorney for Plaintiff's ex-husband" on 6 March 1995. For this last item, plaintiff cites Paragraphs 5C, 5D, and 5E of her Eleventh Count, titled "Fraud."
Items (2) through (6) are clearly not actionable as legal malpractice; nothing in any of these acts or omissions, as alleged, is a dereliction of professional duty. Neither is item (1) an omission constituting legal malpractice. There is no provision in the Rules of Appellate Procedure which permits an appellant to unilaterally correct or augment his brief after it has been filed. Nor is there any rule in this state that expressly authorizes an appellant to move an appellate court for permission to correct or augment his brief. In fact, Rule of Appellate Procedure 28(g), which permits a party to supply an appellate court with a memorandum of additional authority discovered by the party after the brief is filed, expressly prohibits the use of the memorandum "for additional argument." Thus, once plaintiff's appellate brief in the case Sharp v. Sharp was filed, nothing could be done to "correct" it; the matter was out of defendants' hands. Any malpractice claim based on the erroneous preparation of that brief is based on acts or omissions that occurred on or before October 1993, so the claim is barred by G.S. 1-15(c).
As noted above, item (7) is presented as a claim of fraud in plaintiff's complaint. The paragraphs cited by plaintiff, however, do not allege the elements of either actual or constructive fraud. See Terry v. Terry, 302 N.C. 77, 82-83, 273 S.E.2d 674, 677 (1981). Plaintiff comes closer to alleging constructive fraud than actual fraud, but what is missing is any allegation that Gailor took advantage of her position of trust for the purpose of benefiting herself. See Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215, 224 (1997). Thus, the acts alleged in item (7) fail to state a claim for fraud.
Plaintiff next argues that her claims of breach of fiduciary duty are claims for which relief can be granted. The acts and omissions upon which her claims of breach of fiduciary duty are based include the following: failing to protect real property marital assets "by filing a lis pendens" [sic], failing to pursue a timely settlement of the equitable distribution case, entering into pretrial stipulations to plaintiff's detriment, failing to offer material evidence in plaintiff's favor, delaying plaintiff's trial, failing to review the credentials of an expert witness hired to testify on plaintiff's behalf, failing to ensure the presence of an expert witness at trial, failing to prepare an adequate appellate brief. As these examples show, plaintiff's claims of breach of fiduciary duty are nothing more than claims of ordinary legal malpractice, which, as we have said, are barred by the statute of limitations.
Finally, plaintiff alleges that her claims of unfair and deceptive trade practices are claims for which relief can be granted. These claims are not recognized by statute. While the General Assembly has declared unfair and deceptive practices "in or affecting commerce" to be unlawful, N.C. Gen.Stat. § 75-1.1(a) (1994), it has expressly excluded the rendition of professional services "by a member of a learned profession" from the definition of "commerce." G.S. 75-1.1(b). Plaintiff argues that we should "giv[e] her the right to sue under the state's Unfair and Deceptive Trade Practices Act," but as *705 judges, we should not and will not rewrite a law enacted by our state legislature.
Affirmed.
Judges GREENE and HUNTER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337839/ | 124 Ga. App. 16 (1971)
183 S.E.2d 20
CITY OF ALBANY
v.
KEY.
45956.
Court of Appeals of Georgia.
Argued February 3, 1971.
Decided June 8, 1971.
*17 Landau, Davis & Farkas, James V. Davis, for appellant.
EBERHARDT, Judge.
What was the authority of the recorder in the imposition of a sentence after conviction of violations of penal ordinances of the city? We have made a fairly careful and exhaustive research of the charter of the city, which appears to have been first granted in 1841. Ga. L. 1841, p. 52.[1] In § 15 of this charter provision was made for the punishment of violations of ordinances by the imposition of a fine, or imprisonment in the event of failure to pay it. There seems to have been no change in the power granted until 1858 (Ga. L. 1858, p. 128) when the Mayor of Albany was granted "the same power to punish for offenses as [is granted] to the Mayor of Columbus." At the same time the Mayor of Columbus was granted power to impose fines and to imprison if the fine were not paid, for specifically listed offenses. In 1889 (Ga. L. 1888-1889, p. 786) power was granted to impose fines, or to imprison, or to compel work on the streets or in work camps, as may be prescribed by ordinances.
A new charter was granted by Ga. L. 1899, p. 107, and by § 24 the judge of the police court was granted power "to try all offenders against the laws and ordinances of said city, and to inflict such penalties as may be prescribed therefore." Another new charter came in 1907 (Ga. L. 1907, p. 369) and by § 10 of it the power to inflict penalties was to be "as prescribed by ordinances." Another charter was granted by Ga. L. 1910, p. 316, and § 10 of this one provided that the judge of the police court should have power to impose punishment for violations of ordinances by fines, not exceeding $200, or by imprisonment, or by labor on the streets, or in the alternative. This continued until 1912, when *18 another charter was granted (Ga. L. 1912, p. 515), and § 10 of this charter authorized the imposition of fines, not exceeding $200, or imprisonment, or by labor on the streets, or in the alternative, or as prescribed by ordinance. Another charter came in 1917 (Ga. L. 1917, p. 454), but no change was made in this respect. The provisions remained the same. The last charter granted, so far as we have been able to determine, and under which the city now operates its government,[2] including the police court, was by Ga. L. 1923, p. 370. In § 18 of that charter it is provided that: "The board of commissioners of said city shall have power ... to prescribe punishments for the violation of the same (ordinances of the city), in a fine not exceeding two hundred dollars ($200) or imprisonment in the guardhouse, city prison or other place provided, or compulsory labor on the streets or other public works or city chain gang, not to exceed sixty (60) days, and either one or both of said punishments may be prescribed, or the several punishments made cumulative, or the fine may be imposed with an alternative of said imprisonment or compulsory labor, and the fine imposed may be coerced by such imprisonment or labor..." Section 24 (1) of this charter provides: "Said police court shall have jurisdiction ... to punish persons convicted in said court of violating such laws and ordinances in a fine not to exceed two hundred dollars or by imprisonment in the guardhouse, city prison, or other place provided, or by compulsory labor on the streets or other public works, or city chain gang not to exceed sixty (60) days, and either one or more of said punishments may be imposed, or the several punishments may be cumulative, or the fine may be imposed with an alternative of such imprisonment or compulsory labor or coerced or enforced by punishment or labor; ... " (Emphasis supplied). The provisions of prior charters were, of course, repealed by the new one.
We deem the language of these provisions to make it clear that the authority to inflict or impose punishment and penalties has, since 1923, at least, included the power to impose a fine or imprisonment, *19 or both, or to impose them in the alternative, up to the prescribed limits. In this respect the recorder has acted within the provisions, and unless these provisions are, for some reason, invalid, the sentences imposed are proper.[3]
Appellee contends that these charter provisions are void because in conflict with Code § 69-205, which provides: "The right and power to organize work gangs or other means of confinement and to confine at labor therein, for a term not exceeding 30 days, persons convicted of violating the ordinances of incorporated towns and villages are hereby conferred on the incorporated towns and villages or their respective authorities: Provided, that said penalty shall be inflicted only as an alternative upon failure or refusal to pay fines imposed for such violations."
This Code section comes from Ga. L. 1880-81, p. 179, which reads: "An Act to confer additional powers on incorporated towns and villages of this State, and for other purposes.
"Section I. The General Assembly of the State of Georgia do enact, That, from and after the passage of this Act, as additions to powers existing under present laws, the right and power to organize work-gangs or other means of confinement, and to confine at labor therein, for a term not exceeding thirty days, persons convicted of violating the ordinances of such towns and villages, are hereby conferred on the incorporated towns and villages of this State, or their respective authorities: Provided, that said penalty shall be inflicted only as an alternative of failure or refusal to pay fines imposed for such violations.
"Section II. Be it further enacted, That all laws and parts of laws, except local laws, in conflict with this Act are hereby repealed.
"Approved, September 29, 1881." (Emphasis supplied).
It is to be observed that this Act had application only to towns *20 and villages. From the time of the charter granted in 1841 Albany was incorporated as a city. A town or village and a city were not the same (see Spence v. Rowell, 213 Ga. 145 (97 SE2d 350), and cases cited), until the adoption of Ga. L. 1964, p. 170, now appearing as Code Ann. § 69-1601, providing that the words "town," "city," and "municipality," are to be construed as synonymous wherever they may appear in the statutory laws of Georgia. We do not think the Act of 1964 (Code Ann. § 69-1601) operated to diminish the power of the city, for it could only do so if the Act of 1881 had that effect, and it specifically provided additions to powers existing, not limitations. We think, too, that a reading of the Act of 1881 clearly indicates that it was designed to permit only the providing of "work-gangs" and to afford the town or village a right to put offenders to work thereon when fines imposed were not paid. It did not deal with the matter of sentencing one to imprisonment only.
The Act of 1881 had been codified and was included as a part of the Code when adopted, and Code § 69-701, also included, provides: "The organization of the various corporate and police courts of this State, and the laws relative thereto, are undisturbed by the adoption of this Code, unless additional, concurrent, or exclusive jurisdiction, or cumulative remedies, are conferred by it upon them or other courts, or other magistracy, and then they are altered only to that extent." (Emphasis supplied). Thus, the public policy was declared to be that powers of these courts granted to municipalities in their charters were not to be diluted, but rather enlarged by the adoption of the Code. A similar declaration is found in Code § 102-107: "If there is a law in force at the time of the adoption of this Code, having entirely a local application, such local law is not repealed by this Code, unless expressly so declared."
Of course, it is true that a municipal ordinance which penalizes an act made penal by existing State law covering the same subject matter must yield to the State law. Art. I, Sec. IV, Par. I of the Constitution; Jenkins v. Jones, 209 Ga. 758 (1) (75 SE2d 815). But the ordinances for violations of which there were convictions here do not make penal matters which are covered by statutes of general application, nor do the charter provisions. And since it is specifically declared by the Act of 1881 that it is intended only to *21 grant additional powers for prescribing punishment of a specified kind, it cannot be said that the provisions of the charter, or of the ordinances, conflict with that Act, as codified in § 69-205.
One purpose of the Act of 1881, codified as Code § 69-205, is probably explained in Leonard v. Mayor &c. of Eatonton, 126 Ga. 63 (54 S.E. 963), dealing with a similar statute adopted in 1879, codified as Code § 69-704, to be the broadening of the powers of municipalities by permitting the imposition of an alternative sentence, which had previously been held to be taboo because coercive in nature. Brieswick v. Mayor &c. of Brunswick, 51 Ga. 639. Even that Act was permissive, and not mandatory; it broadened power rather than diluting it.
If our construction of Code § 69-205 were not correct, we should find that we have two Code sections dealing with the powers of municipalities to impose punishment which are themselves conflicting. But we do not so regard them. Section 69-205 applies only when the municipality seeks to impose labor in an organized work-gang as a means of confinement. That is not the same, or even the equivalent of imprisonment in a city jail. The recorder did not sentence Mr. Key to labor on a work-gang.
2. Was there error in the suspension of the accused's driver's license? We think not. The action of the recorder was specifically provided for by Ga. L. 1937, pp. 322, 348; 1951, pp. 598, 604 (Code Ann. § 92A-9908), and the stipulation of the facts, together with the petition for certiorari, the recorder's answer, and other portions of the record clearly demonstrate that the basis for the suspension comes within the ambit of the statute.
The contention that this was the imposition of an additional penalty for the same offense is without merit. The cancellation or suspension of a driver's license is not the imposition of a criminal penalty, or a punishment for crime, but is a civil disqualification. The suspension was not a part of the sentence imposed; it was a separate matter, and thus does not run counter to Nelson v. State, 87 Ga. App. 644 (75 SE2d 39). Cf. Turmon v. Department of Public Safety, 222 Ga. 843 (3) (152 SE2d 884); Dennis v. State, 226 Ga. 341 (175 SE2d 17). What we hold here does not conflict with the holding in Trowbridge v. Dominy, 92 Ga. App. 177 (88 SE2d 161).
Judgment reversed. Hall, P. J., and Whitman, J., concur.
NOTES
[1] In subsequent Acts (Ga. L. 1899, p. 124; Ga. L. 1907, p. 369, § 2; Ga. L. 1910, p. 316, § 2; Ga. L. 1917, p. 454, § 2), reference is made to a charter granted in 1838, but an examination of the printed laws of that year does not disclose it.
[2] There have been many amendments to this, as well as former charters, but none of the amendments appear to have made changes as to this subject matter.
[3] It is not contended that appellant has been or is being confined to "work out" a fine which, because of his indigency, he is unable to pay, as was the case in Williams v. Illinois, 399 U.S. 235 (90 SC 2018, 26 LE2d 586), or that he suffers confinement because of inability to pay fines for offenses punishable by fines only, as was the case in Tate v. Short, 401 U.S. 395 (28 LE2d 130). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337838/ | 212 Va. 237 (1971)
HARRY KOHLBERG
v.
VIRGINIA REAL ESTATE COMMISSION.
Record No. 7576.
Supreme Court of Virginia.
September 1, 1971.
Present, Snead, C.J., Carrico, Gordon, Harrison, Cochran and Harman, JJ.
1. Court must interpret statute so as to uphold its constitutionality if this can be reasonably done. Statute will be construed as whole. Provision restricting improper dealing, in context with dishonest or fraudulent dealing, is valid exercise of Police Power.
2. Under statute prohibiting dishonest or fraudulent dealing, unqualified rule prohibiting offer to repurchase by real estate dealer is not constitutionally valid.
Error to a judgment of the Corporation Court of the City of Norfolk. Hon. Alfred W. Whitehurst, judge presiding.
Joseph Teck (Underwood & Byrd, on brief), for plaintiff in error.
T. J. Markow, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
HARMAN
HARMAN, J., delivered the opinion of the court.
A jury in the trial court, upon conflicting evidence, found Harry Kohlberg (Kohlberg) guilty of violating Rule II(16) of the Rules of the Virginia Real Estate Commission (Commission). The trial court entered an order on this verdict affirming the action of the Commission in suspending Kohlberg's license as a real estate salesman for a period of 60 days. We granted a writ of error to Kohlberg.
The conflicts in the evidence have already been resolved against Kohlberg by the jury's verdict so the only issue here is whether the rule which he violated is constitutionally valid. *238
The rule, in pertinent part, reads as follows:
{"Section II, Business Practices"
{". . . (If) any real estate broker or salesman fails or neglects to abide by the following, he shall be deemed, prima facie, to be guilty of improper dealings:"
* * *
{"(16) Offer or Promise to Repurchase. -- A licensee shall not, as an inducement to a purchase of real estate, promise or offer, conditionally or unconditionally, to a prospective purchaser, that, if such prospective purchaser purchases such real estate, the licensee, or any other person, firm or corporation, will repurchase such real estate, or the purchaser's equity or other property rights therein."
This rule was adopted under Code | 54-740 which provides the Commission with its general rule making power. Code | 54-762(10) authorizes the Commission to revoke or suspend the license of any licensee who is guilty of "(any) other conduct . . . which constitutes improper, fraudulent, or dishonest dealing."
Kohlberg does not challenge the power of the Commission to promulgate proper rules controlling the conduct of its licensees. He says, however, that "improper dealing" as used in Rule II(16) is so vague and indefinite as to violate the Due Process provisions of both the Constitution of the United States and the Constitution of Virginia.
Kohlberg's assignment of error was limited to the rule itself. But, in determining the validity of the rule, it is necessary for us to consider the underlying statute which supports and authorizes its adoption.
We have held that the term "improper person" used in an interdiction statute admits to such arbitrary interpretation as to make it unconstitutionally vague and indefinite. Booth Commonwealth, 197 Va. 177, 88 S.E.2d 916 (1955). We pointed out there that the term "improper" provided the only standard. Since the term, in that context, did not lend itself to uniformity of interpretation and enforcement, we held it was violative of Due Process.
Here, when we look to Code | 54-762(10), the underlying statute, we find that the term "improper . . . dealing" is not the sole standard provided. It is coupled in the statute with the terms "fraudulent" and "dishonest" dealing, both of which constitute a *239 violation of the moral code against taking an unfair financial advantage of another person with whom one deals, that is with moral culpability.
It is our duty to interpret a statute so as to uphold its constitutionality if this can be reasonably done without doing violence to the accepted rules of statutory interpretation.
Moreover, no legislative act should be construed as intended to deny constitutional rights unless such a conclusion is unavoidable. Savage Commonwealth, 152 Va. 992, 1000, 147 S.E. 262, 264 (1929).
We have said:
{"When we know the object of a statute and are called upon to construe a phrase or a sentence which, standing alone, may be susceptible of different interpretations, we know of no safer rule than to take the statute by its four corners and critically examine it as a whole to ascertain the legislative intent, as manifested by its different provisions. If, upon such an examination, an interpretation can be made, consistent with the language used, which will carry into effect the object sought to be accomplished by the statute, that interpretation should be adopted, in preference to one which would be equally consistent with the language used, standing alone, but which would defeat, or tend to defeat, the manifest intent of the legislature." Harris
Commonwealth, 142 Va. 620, 625, 128 S.E. 578, 579 (1925).
The meaning of a word, under the doctrine of noscitur a sociis, takes color and expression from the purport of the entire phrase of which it is a part, and it must be construed so as to harmonize with the context as a whole.
Vilardo Sacramento County, 54 Cal. App. 2d 413, 420, 129 P.2d 165, 168-69 (1942).
The Supreme Court of Wisconsin, in Lewis Realty, Inc. Wisconsin Real Est. Brokers' Board, 6 Wis. 2d 99, 94 N.W.2d 238 (1959), construing the identical language which appears in our statute, held that "improper dealing" as used in the Wisconsin statute, by its context in the statute, was restricted to conduct which involves moral culpability and which tends to take an unfair advantage of the person with whom the actor deals. In other words, it must be closely akin to dishonest or fraudulent dealing.
Applying the principles set forth earlier, we adopt this definition *240 and hold Code | 54-762(10) to be a valid and constitutional exercise of the Police Power.
When we consider Rule II(16), however, we must reach a different conclusion. Its prohibition against an offer to repurchase is absolute and without qualification. An offer to repurchase, standing alone, is not an act which involves moral culpability nor is it an act closely akin to fraudulent or dishonest dealing. We hold, therefore, that Rule II(16) is an invalid application of Code | 54-762(10) since the conduct prohibited by the rule is not of the character which the Commission may prohibit under the statute.
For these reasons the order of the trial court affirming the Commission's action in suspending Kohlberg's license is reversed and this cause will be dismissed.
Reversed and dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2577369/ | 643 F. Supp. 2d 43 (2009)
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,
v.
Arne DUNCAN, Secretary of Education, et al., Defendants.
Civil Action No. 06-02086 (HHK).
United States District Court, District of Columbia.
August 10, 2009.
*45 Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Scott Allan Hodes, Washington, DC, for Plaintiff.
Arthur R. Goldberg, John R. Coleman, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION
HENRY H. KENNEDY, JR., District Judge.
Citizens for Responsibility and Ethics in Washington ("CREW") brings this action against Arne Duncan, the Secretary of Education, in his official capacity, and the United States Department of Education (collectively, the "Department") under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. CREW alleges that the Department failed to disclose documents as required by the Federal Advisory Committee Act, 5 U.S.C.App. 2 § 1 et seq. *46 ("FACA"). CREW also alleges that the Department failed to comply with the open meetings and disclosure provisions of FACA and failed to publish a FACA charter. CREW seeks the full production of their requested documents, and declaratory and injunctive relief holding that the Department violated FACA and enjoining it from future violations.
Before the Court is the Department's motion to dismiss for lack of subject matter jurisdiction on grounds of mootness [# 15]. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion should be granted.
I. BACKGROUND
In 2002, Congress enacted the Reading First Initiative, which requires the Secretary of Education to create a panel to evaluate state Reading First grant proposals and make approval recommendations to the Secretary. 20 U.S.C. § 6363(c)(2)(C). Accordingly, the former Secretary of Education, Margaret Spellings, created a panel consisting of three people selected by Secretary Spellings herself, three selected by the National Institute for Literacy, three selected by the National Research Council of the National Academy of Sciences, and three selected by the National Institute of Child Health and Human Development as required by the Reading First statute. Spellings then created sub-panels to review the State applications and recommend either approval or disapproval to the Secretary. The Department chose the majority of panelists on these sub-panels, allegedly in violation of statutory requirements. The Department refers to these sub-panels as the "Old Panel." It is the "Old Panel" that CREW alleges violated FACA disclosure, open meeting and charter requirements.
In September 2006, the Department's Office of Inspector General issued a Final Inspection Report, which found that the Old Panel did not comply with the Elementary and Secondary Education Act of 1965. In response to this finding, CREW sent a letter to the Department requesting all documents related to the Old Panel's review of grant proposals, the Old Panel's charter, and detailed meeting minutes. CREW intended to analyze this information and share it with the public through various forms of media, including the CREW website. The Department did not initially respond to this request. Believing the non-disclosure to be a violation of FACA § 10(b) requirements, CREW instituted this suit in December 2006.
After this suit was filed, the Department searched "every file drawer in every file cabinet known to contain Reading First program files." (Fourth Butler Decl. ¶ 4.) This search yielded 62,000 pages of documents containing:
a. the preliminary and final versions of the Reading First applications that [State Educational Agencies] submitted to the Department;
b. the Reading First criteria for Review of State applications that the Department provided to peer reviewers;
c. the Technical Review Form Summary Sheets of individual panelists reviewing Reading First applications; and
d. the Panel Chair Summary Forms relative to all versions of the Reading First applications submitted by [State Educational Agencies].
(Second Butler Decl. ¶ 4.) By July 17, 2007, the Department copied these documents onto compact discs and sent the discs to CREW. According to the Department, this disclosure represented "all of the documents in the Department's possession that were made available to or prepared for or *47 by the panels that reviewed the Reading First Applications." (Id. ¶ 5.)
After this suit was filed, Spellings also committed to "mov[e] swiftly to enact all of the Inspector General's recommendations," (Compl. Ex. E.), and on March 1, 2007, she announced the forthcoming establishment of a new panel ("New Panel"), which would replace the Old Panel. Spellings issued a charter for the New Panel and stated that the New Panel would take over the duties of the Old Panel. Pursuant to FACA, the Department then published in the Federal Register "the date and location of the first meeting of the New Panel, as well as a tentative agenda." (Def's. Mot. Dismiss at 8.) CREW does not dispute the Department's assertion that the New Panel's activities have thus far complied with FACA.
In August 2008, the Department's Office of Elementary and Secondary Education moved to a new office space. During this move, a banker's box thought to contain only personnel-related documents was delivered to the new office of Dr. Joseph Conaty.[1] After reviewing the box's contents, Dr. Conaty found 285 pages worth of Reading First documents. These documents were sent to CREW on September 15, 2008. In his fourth declaration, James Butler[2] declared that "[t]o the best of [his] knowledge, information, and belief, the Department possesses no additional documents that were made available to or prepared for or by the panels that reviewed the Reading First applications." (Fourth Butler Decl. ¶ 12.)
II. ANALYSIS
The Department moves to dismiss this case for lack of subject matter jurisdiction because the Department produced the requested documents and established a new advisory panel in compliance with FACA. As a result, the Department contends that CREW's claims are all moot. CREW responds that the Department has not produced all of the requested material and that CREW's claims for declaratory and injunctive relief still present a live issue. CREW seeks the full production of the requested documents, declaratory relief, and an injunction enjoining the Department from utilizing the advice of Reading First panels until the Department complies with FACA.
Article III requires that its "case or controversy requirement subsist[] through all stages of federal judicial proceedings, trial and appellate." Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998) (internal quotation omitted). To satisfy the requirement of a case or controversy, "the plaintiff must have suffered or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Id. (internal quotation omitted). When the injury dissipates, a case has "lost its character as a present, live controversy of the kind that must exist if [the court is] to avoid advisory opinions on abstract questions of law." Princeton Univ. v. Schmid, 455 U.S. 100, 103, 102 S. Ct. 867, 70 L. Ed. 2d 855 (1982) (internal quotation omitted). At this point, the case becomes moot. Id.; see also U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980) (describing mootness as "the doctrine of standing set in a time frame: The requisite *48 personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).") (internal quotation omitted).
The Court will first consider whether CREW's claim for production of documents is moot and then turn to the question of whether its claims for declaratory and injunctive relief are moot.
A. The Department's Demonstration of Full Document Production Moots CREW's Claim to Compel Production.
The first of CREW's claims seeks full production of the documents it requested pursuant to FACA § 10(b). CREW argues that the Department has not demonstrated that it has conducted an adequate search for the requested records. CREW contends that the Department' declarations are conclusory because the Department has not shown the scope and method of its search or demonstrated that it contacted the members of the working group regarding the requested documents. Additionally, CREW points to the Department's failure to account for certain requested documents, including Old Panel members' conflict of interest forms, as evidence that the Department's search was inadequate.
The Department responds that it has produced all responsive documents and that its declarations demonstrate the adequacy of its search. Furthermore, the Department asserts that it is under no obligation to contact former working group members without evidence that such members possess any of the requested documents, and avers that the conflict of interest forms requested by CREW do not exist.
When determining whether an agency has performed an adequate search for documents, a court may rely on agency affidavits because "these affidavits are equally as trustworthy when they aver that all documents have been produced or are unidentifiable as when they aver that identified documents are exempt." Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir. 1978). Agency affidavits "enjoy a presumption of good faith, which will withstand purely speculative claims about the existence and discoverability of other documents." Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981). These affidavits, however, must be "`relatively detailed' and non-conclusory and . . . submitted in good faith." Id. (citing Goland, 607 F.2d at 352). The affidavits should explain "the scope and method of the search." Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982); see also Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1487 (D.C.Cir.1984) (affidavits must demonstrate a "good-faith effort to locate responsive materials.").
Once a defendant has presented an adequately detailed affidavit, the burden then shifts to the plaintiff to present evidence suggesting that the search was not adequate. Ground Saucer Watch, Inc., 692 F.2d at 771. If the plaintiff does not present such evidence, the agency maintains a "presumption of good faith." Id.; see Physicians Comm. for Responsible Medicine v. Glickman, 117 F. Supp. 2d 1, 4 (D.D.C.2000) ("Discovery to pursue a suspicion or a hunch is unwarranted.").
The Fourth Declaration of James Butler, submitted with the Department's "Notice of Newly Discovered Documents" [# 19] is sufficiently detailed and non-conclusory to warrant this Court's presumption of good faith regarding the Department's search. By stating in the Fourth Butler Declaration that the two review sessions were carried out by James Butler and his staff, and Dr. Joseph Conaty, respectively, and that each session covered *49 "every file drawer of every file cabinet known to contain Reading First program files," (Fourth Butler Decl. ¶¶ 4, 6.), the Department identified the scope and method of its search. The Department has thus met its burden of providing an adequately detailed and non-conclusory affidavit. See Perry, 684 F.2d at 127 ("Neither Weisberg nor Founding Church of Scientology demands . . . that the affidavits of the responding agency set forth with meticulous documentation the details of an epic search for the requested records.").[3]
Furthermore, CREW fails to provide any evidence to support its belief that documents outside of those already provided are unaccounted for or exist. In order to successfully challenge the adequacy of an agency document search, a party "must point to evidence sufficient to put the Agency's good faith into doubt." Ground Saucer Watch, Inc., 692 F.2d at 771. Perry summarized the type of evidence needed to instill such doubt:
In Weisberg, the agency's own assertions supported an inference that specifically identified material, solicited by the requester, might have remained in the agency's possession. The appellant in Weisberg also adduced specific evidence tending to show that the search conducted for the records had been inadequate. Id.
Perry, 684 F.2d at 127 (internal citation omitted). Here, CREW does not point to sufficient evidence indicating that the Department conducted an inadequate search, or that the Department possesses unproduced Reading First documents. As evidence that "conflict of interest forms" exist and were not produced, CREW points to a letter in which the Department's attorney referenced "conflict of interest forms." Pl.'s Opp'n to Defs.' Mot. Dismiss at 14. The Department's attorney only referenced these forms, however, in response to CREW's own request for them.
Lastly, the Department is not obliged to produce the remaining documents, requested by CREW and listed in Exhibit A of plaintiff's opposition, because CREW has not provided evidence that the Department actually possesses them. See Glickman, 117 F.Supp.2d at 4 ("An agency is `under no duty to disclose documents not in its possession.'") (citing Rothschild v. Dep't of Energy, 6 F. Supp. 2d 38, 40 (D.D.C.1998)). CREW's argument amounts to no more than "mere speculation that as yet uncovered documents may exist." See Iturralde v. Comptroller of the Currency, 315 F.3d 311, 316 (D.C.Cir.2003) (citing SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir.1991)).
Because the evidence indicates that the Department has now produced all available *50 documents, and CREW does not defeat the Department's presumptive good faith, see Ground Saucer Watch, Inc., 692 F.2d at 771, the Court is satisfied that CREW's requested documents "[have] been produced, [are] unidentifiable, or [are] wholly exempt." See Nat'l Cable Television Ass'n v. F.C.C., 479 F.2d 183, 186 (D.C.Cir.1973). Therefore, an order compelling document production can no longer redress CREW's informational injury, and the claim to compel production is moot.
B. Declaratory and Injunctive Relief Can No Longer Redress CREW's Injuries.
CREW's claim for declaratory and injunctive relief is two-fold. CREW seeks declaratory and injunctive relief with respect to the Department's allegedly inadequate document production. CREW also seeks declaratory and injunctive relief with respect to the Old Panel's other FACA violations, including the violation of FACA's open meetings and charter requirements. CREW argues that these past FACA violations still present a live issue for adjudication, noting specifically that the termination of a committee does not moot a claim for declaratory and injunctive relief. The Department rejoins that the establishment of the New Panel and its production of the requested documents operate to moot both elements of CREW's claim for declaratory and injunctive relief.
CREW is correct that termination of the Old Panel does not necessarily moot its claims. See United States v. W.T. Grant, 345 U.S. 629, 632, 73 S. Ct. 894, 97 L. Ed. 1303 (1953) ("voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e. does not make the case moot."). To survive a mootness inquiry, however, CREW must demonstrate that:
the facts alleged, under all circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed. 826 (1941). A claim arising under FACA for declaratory judgment will become moot when "the working group has been terminated and all appropriate working group documents have been publicly released," Ass'n of Am. Physicians & Surgeons v. Clinton, 879 F. Supp. 103, 106 (D.D.C. 1994), so long as defendants "demonstrate that `there is no reasonable expectation that the wrong will be repeated.'" W.T. Grant Co., 345 U.S. at 633, 73 S. Ct. 894 (internal quotation omitted). Once a defendant has satisfied these two requirements, "there will simply be no continuing case or controversy for judicial resolution," because there will be no Committee proceedings left to challenge and no documents in need of production. See Am. Physicians & Surgeons, 879 F.Supp. at 106. Likewise, there will be no basis for injunctive or other equitable relief. Id.
CREW argues that its request for declaratory and injunctive relief with respect to the Department's allegedly deficient document production is not moot, citing Byrd v. EPA for support. Byrd is distinguishable, however, because in Byrd, the need for declaratory relief turned on the timeliness of the production. See Byrd v. U.S. EPA, 174 F.3d 239, 244 (D.C.Cir. 1999). The District of Columbia Circuit draws a clear distinction between an injury resulting only from a failure to produce and one resulting from a failure to produce in a timely fashion:
If Byrd had simply complained that EPA failed to release the documents he requested, his alleged injury could not be redressed by any action of this court *51 because he ultimately received the materials. Byrd's injury, however, resulted from EPA's failure to furnish him with the documents until long after they would have been of any use to him.
Id. Unlike Byrd, here CREW does not allege any injury due to the Department' tardy disclosure of the requested documents. CREW does not indicate that it had any intention to use the requested documents for anything more than information dissemination, a task that the organization is now capable of carrying out.
In arguing that its claims for declaratory and injunctive relief are not moot, CREW makes several references to the ongoing nature of these violations. "So long as an agency's refusal to supply information evidences a policy or practice of delayed disclosure . . . and not merely isolated mistakes by agency officials, a party's challenge to the policy or practice cannot be mooted by the release of the specific documents that prompted the suit." Payne Enters. v. United States, 837 F.2d 486, 491 (D.C.Cir.1988) (footnote omitted). CREW has not, however, alleged the existence of an agency policy or practice of withholding information, only a "persistent refusal to admit [the Department's] past violations." (Pl. Opp'n to Defs.' Mot. to Dismiss at 11.) Therefore, CREW has not established a reasonable expectation that the Department will repeat its disclosure violations. See W.T. Grant, 345 U.S. at 633, 73 S. Ct. 894.
Regarding the Department's other alleged FACA violations, including the violation of FACA's open meetings and charter requirements, the Department's establishment of the New Panel renders these claims moot. See Am. Physicians & Surgeons, 879 F.Supp. at 106. The New Panel performs the same tasks as the Old Panel, illustrating the termination and replacement of the Old Panel. Moreover, it is undisputed that the New Panel is chartered under FACA, and to date, this panel has satisfied all of its requirements under FACA. These actions by the Department eliminate the need for this Court to grant declaratory and injunctive relief. See Byrd, 174 F.3d at 244, ("[Byrd's] injury would be mooted if EPA convened another panel . . . in compliance with FACA."); see also Am. Physicians & Surgeons, 879 F.Supp. at 106 (holding that a FACA claim becomes moot when "the working group has been terminated and all appropriate working group documents have been publicly released."). Without further evidence to the contrary, this Court has "no reasonable expectation that [the Department's FACA violations] will be repeated." See W.T. Grant, 345 U.S. at 633, 73 S. Ct. 894 (internal quotation omitted). Accordingly, declaratory and injunctive relief can no longer redress CREW's injuries and its claims are moot.
III. CONCLUSION
For the foregoing reasons, the Court concludes that Department's motion to dismiss for lack of subject matter jurisdiction on grounds of mootness [# 15] should be granted. An appropriate order accompanies this memorandum opinion.
NOTES
[1] Dr. Conaty is the Director of the Academic Improvement and Teacher Quality Programs Division of the Department of Education's Office of Elementary and Secondary Education. (Fourth Butler Decl. ¶ 7.)
[2] James Butler is the Group Leader of Teacher Quality Programs in the Academic Improvement and Teacher Quality Programs Division of the U.S. Department of Education's Office of Elementary and Secondary Education. (Fourth Butler Decl. ¶ 1.)
[3] The D.C. Circuit has acknowledged that "the discovery of additional documents is more probative that the search was not thorough than if no other documents were found to exist." Goland, 607 F.2d at 370. The Circuit has also recognized, however, that it must consider "all of the surrounding circumstances" when ruling on the adequacy of a documents search, Perry, 684 F.2d at 128, and that "a disappointed litigant may not avail herself of every imaginable inference from newly discovered facts in order to upset a final judgment," Goland, 607 F.2d at 370. Thus, the fact that the agency found more documents alone is not illustrative of a bad faith search. As was the case in Perry, where only ten additional pages were found subsequent to the initial 600 page disclosure, Perry, 684 F.2d at 128, the 285 additional pages of documents found in this case represent a small percentage of the more than 62,000 pages of the disclosed documents. Furthermore, the delay was caused because the files were placed in a banker's box that otherwise contained personnel files. This suggests "neither artifice nor subterfuge but rather, at worse, administrative inefficiency" and does not put the Department's presumptive good faith in jeopardy. See id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204033/ | 888 N.E.2d 1290 (2008)
DYER
v.
STATE.
No. 27A02-0802-CR-132.
Court of Appeals of Indiana.
June 19, 2008.
RILEY, J.
Disposition of case by unpublished memorandum decision. Reversed and Remanded.
BAKER, C.J. Concurs.
ROBB, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337896/ | 212 Va. 174 (1971)
PAT BUTLER
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY.
Record No. 7610.
Supreme Court of Virginia.
September 1, 1971.
Robert Sondej (Mattox, Hawks & Sondej, on brief), for appellant.
Robert M. Furniss, Jr. (Furniss, Davis & Sachs, on brief), for appellee.
Present, All the Justices.
Assured purchased additional automobile. Thereafter both vehicles were operated for a time though Volkswagen named in policy had been put up for sale. On May 27 license plates were removed from Volkswagen, which had not yet been sold, and placed on Corvette, the additional automobile. On same date, application for transfer of plates was forwarded to Division of Motor Vehicles and transfer was made by the Division on June 5. Insurance policy does not cover Corvette for accident occurring May 28.
Appeal from a decree of the Circuit Court of the City of Portsmouth. Hon. Henry W. MacKenzie, Jr., judge presiding.
CARRICO
CARRICO, J., delivered the opinion of the court.
Government Employees Insurance Company (GEICO) filed a motion for declaratory judgment against Pat Butler, Norman C. Bonenberger, and Marcia Pegram McVey seeking a determination of its liability on an insurance policy issued to Mrs. McVey. The issue presented to the trial court was whether a Corvette, acquired by Mrs. McVey during the policy period, had "replaced" a Volkswagen, initially insured, so as to afford coverage for Miss Butler's claim resulting from operation of the Corvette by Bonenberger. The trial court ruled in GEICO's favor, and Miss Butler was granted an appeal.
The record shows that the policy issued to Mrs. McVey (then *175 Pegram) was effective for one year from October 10, 1968. The policy contained a provision extending coverage to any automobile "ownership of which is acquired by the named insured during the policy period, provided . . . [it] replaces an owned automobile." An owned automobile was defined as one "described in [the] policy for which a specific premium charge indicates that coverage is afforded."
The policy as issued covered a 1967 Volkswagen owned by Mrs. McVey. On March 15, 1969, within the policy period, Mrs. McVey purchased a 1958 Chevrolet Corvette, retaining ownership of the Volkswagen. Several weeks after the purchase, Mrs. McVey placed the Volkswagen with Victory Sales Corporation, an automobile agency where her husband was sales manager, to be sold for her. The Volkswagen was fully operable and Mrs. McVey's license plates, which were renewed after the car was put up for sale, remained on the vehicle. The Volkswagen was operated for purposes of demonstration while on the Victory lot.
The Corvette was also operable and was occasionally operated by Mrs. McVey, although it was garaged several times for repair work preparatory to a cross-country trip planned by the McVeys. During this time, the Corvette carried dealer's license plates issued to Victory Sales Corporation.
On May 27, 1969, Mrs. McVey's license plates were removed from the Volkswagen and placed on the Corvette. On the same date, an application for the transfer of the plates was forwarded to the Division of Motor Vehicles, the application certifying that GEICO's policy was applicable to the Corvette. The transfer was made by the Division on June 5.
On June 27, the Volkswagen was sold and title was transferred. Victory Sales Corporation was paid a commission on the transaction.
Meantime, on May 28, Bonenberger, while operating the Corvette with permission of Mrs. McVey, was involved in an accident. Miss Butler, a passenger in the vehicle, was injured. Mrs. McVey then notified GEICO of her acquisition of the Corvette and requested transfer of her insurance coverage.
Miss Butler brought an action against Bonenberger for damages, and the question arose whether GEICO's policy covered his liability resulting from operation of the Corvette. Thereupon, GEICO instituted the present declaratory judgment proceeding.
The trial court ruled that "the Corvette did not replace the Volkswagen *176 within the meaning of the policy provisions." Accordingly, GEICO's policy was held not to provide coverage for the accident in which the Corvette was involved.
On appeal, Miss Butler contends that the trial court erred in its finding. She argues that the Corvette replaced the Volkswagen when the latter was put up for sale at Victory Sales Corporation and, if not then, most certainly when Mrs. McVey's license plates were taken off the Volkswagen and placed on the Corvette.
We have no difficulty in agreeing with the trial court's finding that the Corvette did not replace the Volkswagen within the meaning of the policy provisions. As the lower court noted, both cars remained in the ownership and under the control of Mrs. McVey and both vehicles were operable until the accident occurred in which the Corvette was involved. That the Volkswagen had been put up for sale and that its license plates had been physically transferred to the Corvette had no legal effect on the situation.
Under these circumstances, and regardless of what interpretation is put upon the policy provisions relative to when replacement should occur, the holding is inescapable that the Volkswagen remained the insured vehicle and that coverage never attached to the Corvette. This results in affirmance of the judgment of the trial court.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338493/ | 199 Va. 363 (1957)
W. W. FLOYD, T/A, ETC.
v.
GEORGE D. FISCHER, COMMISSIONER, ETC., ET AL.
Record No. 4682.
Supreme Court of Virginia.
September 6, 1957.
Harry D. Sizemore and L. Lee Bean (Bean & Sizemore, on brief), for the plaintiff in error.
William J. Hassan, Commonwealth's Attorney (K. McFarlane Smith, Assistant Commonwealth's Attorney, on brief), for the defendants in error.
Present, All the Justices.
1. By Code 1950, section 7-9, Virginia ceded to the United States exclusive jurisdiction over the territory embraced within the Washington National Airport, reserving, however, the power to levy a tax on the sale of oil and gasoline sold on the airport for use in vehicles. This reservation did not include the power to levy taxes for the privilege of doing business on the airport. Hence Floyd, whose business was the sale of oil and gasoline there, was not properly assessed under Arlington county's business privilege tax ordinance or the State's merchants license tax, since they were not taxes on the sale of the products. It was error, therefore, to sustain the tax officials' demurrer to Floyd's petition for relief from assessment for these taxes.
2. The taxing unit must pinpoint the law authorizing the imposition of a challenged tax; and where any substantial doubt exists as to whether a tax is applicable, such doubt must be resolved in favor of the taxpayer.
Error to an order of the Circuit Court of Arlington county. Hon. Emery N. Hosmer, judge presiding. The opinion states the case.
WHITTLE
WHITTLE, J., delivered the opinion of the court.
Floyd filed a petition in the Circuit Court against the Commissioner of Revenue, the Treasurer, and the County Board of Arlington County for relief from an erroneous tax assessment, for a declaratory judgment and general relief. He prayed that Article 67 of the County Business Privilege Tax Ordinance and Articles 6, 7 and 8 of Title 58, Chapter 7, Code of Virginia, 1950, as amended, [1] be declared ineffective with regard to the operation of his business, the selling of "oil, gasoline and all other motor fuels and lubricants" on the Washington National Airport Reservation.
Petitioner alleged that he had been required by the Commissioner of Revenue to apply for an Arlington County business privilege license and a Virginia retail merchants license; that he applied for said licenses under protest; that both license taxes had been assessed, and that he would be amenable to civil and criminal penalties unless he paid them.
Petitioner further alleged that the Commonwealth of Virginia properly levies and collects a tax of 6c per gallon on all gasoline sold by him on said reservation; that Section 107 of United States Public Law 208, 79th Congress, approved October 31, 1945, incorporated and passed by the Virginia legislature in Section 7-9, Code of Virginia, 1950, as amended, grants to the Commonwealth authority to levy said 6c per gallon tax on the sale of gasoline, but the requirement for the payment of business license taxes, the costs of which are calculated by volume of sales, is in conflict with United States Public Law 208, 79th Congress, as appearing in Section 7-9, Code of Virginia, 1950, as amended; that such requirement is expressly repealed by provision of said section; and that appellees are acting improperly in assessing or attempting to collect said license taxes from him.
Respondents (appellees) filed a demurrer to the petition in which they asserted that Section 107, as incorporated in Section 7-9, Code of Virginia, 1950, as amended, authorized the Commonwealth of Virginia to levy a tax on the sale of "oil, gasoline and all other motor fuels and lubricants" sold on the reservation "for use in over-the-road vehicles such as trucks, busses, and automobiles, except sales to the United States." *365
From an order sustaining the demurrer and dismissing the petition we granted Floyd an appeal.
Petitioner argues that in the grant by the Commonwealth of Virginia to the District of Columbia the Commonwealth relinquished all its right of taxation within the grant except that specifically reserved, and that the effect of the grant was to make void within the territory granted Section 67 of the Arlington County Business Privilege Tax Ordinances and Articles 6, 7 and 8 of Title 58, Chapter 7 of the Code of Virginia, 1950, above referred to. With this we agree.
Section 7-9, Code of Virginia, 1950, as amended, reads:
"BOUNDARY LINE BETWEEN VIRGINIA AND DISTRICT OF COLUMBIA. -- Whereas there has been passed by the Congress of the United States Public Law two hundred eight -- Seventy-ninth Congress, approved October thirty-first, nineteen hundred forty-five, entitled 'An act to establish a boundary line between the District of Columbia and the Commonwealth of Virginia, and for other purposes', Title I of the act being as follows:"
* * *
"Section 107. The State of Virginia hereby consents that exclusive jurisdiction in the Washington National Airport (as described in section one (b) of the act of June twenty-ninth, nineteen hundred forty (fifty-four Stat. six hundred eighty-six), title to which is now in the United States, shall be in the United States. The conditions upon which this consent is given are the following and none other: (one) There is hereby reserved in the Commonwealth of Virginia the jurisdiction and power to levy a tax on the sale of oil, gasoline, and all other motor fuels and lubricants sold on the Washington National Airport for use in over-the-road vehicles such as trucks, busses and automobiles, except sales to the United States: Provided, that the Commonwealth of Virginia shall have no jurisdiction or power to levy a tax on the sale or use of oil, gasoline, or other motor fuels and lubricants for other purposes; * * *."
"Subject to the limitation on the consent of the State of Virginia as expressed herein exclusive jurisdiction in the Washington National Airport shall be in the United States and the same is hereby accepted by the United States."
* * * *366
"Any provision of law of the United States or the Commonwealth of Virginia which is to any extent in conflict with this act is to the extent of such conflict hereby expressly repealed."
It will be noted that "exclusive jurisdiction" in the territory ceded is in the United States, and the only taxing right reserved by the Commonwealth reads: "There is hereby reserved in the Commonwealth of Virginia the jurisdiction and power to levy a tax on the sale of oil, gasoline and all other motor fuels and lubricants sold on the Washington National Airport for use in over-the-road vehicles such as trucks, busses, and automobiles, * * *."
The county's business privilege tax and the retail merchants tax sought to be assessed by the Commonwealth are not taxes on the sale of "oil, gasoline and all other motor fuels and lubricants". They are taxes for the privilege of doing business in the Commonwealth, and the right of the Commonwealth or any of its sub-divisions in the ceded territory was not reserved to exact this privilege tax. The only right reserved under the grant was the right to collect a tax on "the sale" of oil, gasoline and all other motor fuels and lubricants.
Had the Commonwealth intended to reserve the right to assess a license tax or a tax for the privilege of doing business, the right should have been spelled out in plain language. The assessments here sought are regulatory measures and are not taxes on "the sale" of the enumerated products.
The burden was on the Commonwealth and the county to pinpoint the law authorizing them to exact the taxes here sought to be collected, and this has not been done. Clearly it is not within the Commonwealth's reserved authority in the grant. We are not authorized to read into the statute something that was not within the manifest intention of the legislature as gathered from the act itself. To depart from the meaning expressed by the words in the statute is to alter it, resulting in legislation rather than interpretation. Jordan Town of South Boston, 138 Va. 838, 122 S.E. 265.
The Constitution of Virginia (| 50) provides that "Every law imposing, continuing or reviving a tax shall specifically state such tax, and no law shall be construed as so stating such tax which requires a reference to any other law or any other tax. * * *"
It is elementary that where there is any substantial doubt as to whether or not a business is included in the descriptive language of a legislative enactment imposing a tax, such doubt must be resolved in *367 favor of the taxpayer. Estes City of Richmond, 193 Va. 181, 68 S.E.2d 109.
Under the grant from Virginia to the United States the Commonwealth is presumed to have specifically reserved all taxing rights which it intended to reserve, and the Virginia retail merchants license tax and the county's business privilege license tax not having been reserved, they being the taxing rights here sought to be asserted, are necessarily excluded.
For the reasons stated the case is remanded to the Circuit Court with the direction that an order be entered granting petitioner the relief prayed for.
Reversed and remanded.
NOTES
[1] Title 58, Chapter 7, deals with State licenses generally; Article 6 of the chapter provides for licensing "merchants, wholesale"; Article 7 for licensing "merchants, retail"; and Article 8 for licensing "merchants, wholesale and retail". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263768/ | 479 F.Supp. 710 (1979)
OR DA INDUSTRIES, LTD., Plaintiff,
v.
LEISURE LEARNING PRODUCTS, INC., Doe Manufacturers A and B, Roe Retailers X, Y and Z, Defendants.
No. 79 Civ. 3322.
United States District Court, S. D. New York.
October 9, 1979.
*711 *712 *713 Laurence Shiff, New York City, for plaintiff.
St. Onge, Steward, Johnston, Reens & Noe, Stamford, Conn., Gerard F. Dunne, New York City, for defendant Leisure Learning Products, Inc.; Louis H. Reens, Stamford, Conn., of counsel.
OPINION
ROBERT J. WARD, District Judge.
Plaintiff Or Da Industries, Ltd. ("Or Da"), an Israeli corporation, brought this action under the Federal Trademark Act of 1946 ("the Lanham Act"), 15 U.S.C. §§ 1051-1127, against Leisure Learning Products, Inc. ("Leisure Learning"), and other unnamed manufacturers and retailers, alleging the infringement of six registered trademarks.[1] These trademarks were issued to Or Da during February, March and September of 1977, and are listed in the Patent Office's Principal Register. Jurisdiction is based on 15 U.S.C. § 1121 and 28 U.S.C. § 1338. The complaint asks for injunctive relief, actual damages, and punitive damages. Defendant, a Connecticut corporation, denies any infringement and counterclaims that Or Da has committed certain business torts against Leisure Learning.
Or Da seeks to preliminarily enjoin Leisure Learning from marketing a children's game defendant calls "Mr. Brain Builder." Plaintiff claims Leisure Learning's use of this name infringes Or Da's registered trademark "Brainy Blocks," the name Or Da uses on a competing product.
On September 10, 1979, after hearing the testimony of two witnesses and receiving some sixteen exhibits in evidence, the Court refused to grant a temporary restraining order and directed Leisure Learning to appear on September 21, 1979, to show cause why it should not be preliminarily enjoined from marketing its game "Mr. Brain Builder." At the September 21 hearing the Court received additional evidence by way of affidavits. For the reasons stated below, plaintiff's motion for a preliminary injunction is granted.
Or Da is an Israeli manufacturer of children's games which alleges that it has been selling its games in the United States continuously since 1974. Beginning in 1975, Leisure Learning Centers Inc., the parent corporation of defendant Leisure Learning, purchased Or Da games for resale in its own retail store and in franchised Leisure Learning Centers outlets. In 1976, the defendant Leisure Learning was formed by Leisure Learning Centers. At that time, Richard G. Bendett, defendant corporation's principal, entered into a distributorship arrangement with Or Da under which Leisure Learning was to purchase Or Da games for resale to retail outlets in the United States.[2]
In late 1977 a dispute arose between Or Da and Leisure Learning over the latter's failure to make payment on some $48,411 due Or Da,[3] and by mid-1978 the parties' business relationship was on the rocks. Or Da refused to make further shipments to Leisure Learning after its last shipment in June 1978. Claiming a contractual right to do so, Leisure Learning then manufactured *714 near perfect copies of the Or Da products Leisure Learning needed to fill outstanding orders. One of the products defendant copied was Or Da's "Brainy Blocks" game. A February 1979 injunction issued by the New York State Supreme Court restrained defendant from further copying Or Da's game configuration and packaging. It was sometime within the next few months that Leisure Learning began the production and marketing of the game it now calls "Mr. Brain Builder."
Or Da's application for trademark registration for "Brainy Blocks" was granted on September 6, 1976, though plaintiff claims the game made its first appearance as "Brainy Blocks" on the United States market some three years earlier. "Brainy Blocks" is a tangram game consisting of variously sized plastic, geometric-shaped pieces and cards printed with the outlines of figures. The object of the game is to use some or all of these pieces to fill the space within each figure outline. The figure cards are numbered in increasing order of difficulty, with the higher numbered cards generally requiring more pieces, and more thinking, to complete. The "Brainy Blocks" game Or Da marketed through Leisure Learning contained thirty-two geometric pieces and eighteen cards.
At the present time Or Da markets a line of three "Brainy Blocks" games. This line consists of "Approaching Brainy Blocks," "Basic Brainy Blocks," and "Creative Brainy Blocks."[4] "Approaching Brainy Blocks" is designed for younger children (aged 4 to 6) and contains sixteen geometric pieces. "Basic Brainy Blocks" is directed at children aged 6 to 8 and like its predecessor "Brainy Blocks" contains thirty-two pieces and eighteen cards. "Creative Brainy Blocks" has eighty pieces and is designed for children over age eight.
Leisure Learning's "Mr. Brain Builder" is strikingly similar to Or Da's earlier "Brainy Blocks" and to its current "Basic Brainy Blocks." The box containing defendant's game is the same size and the same shape as the boxes for these two Or Da games. Although the dress of defendant's game differs from the dress of Or Da's "Brainy Blocks" and "Basic Brainy Blocks," Leisure Learning's "Mr. Brain Builder" is essentially the same game as the two Or Da products. It contains thirty-two geometric pieces and thirty figure cards, and is played the same way as "Brainy Blocks."
Plaintiff contends that defendant's use of "Mr. Brain Builder" infringes its registered trademark "Brainy Blocks," claiming that "Mr. Brain Builder" sounds, appears and means the same as "Brainy Blocks." Maintaining that the two names are confusingly similar, Or Da asserts that the consumer is likely to mistake Leisure Learning's tangram game for its own. Plaintiff claims it will be irreparably harmed if defendant is permitted to continue marketing its game as "Mr. Brain Builder." Defendant acknowledges that its game competes with and is marketed through the same channels of trade as Or Da's game but argues that "Mr. Brain Builder" is not confusingly similar to "Brainy Blocks."
Recent cases in this Circuit have removed any remaining doubt as to the showing a party must make to prevail on a request for preliminary injunctive relief. As articulated by the court in Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam) (footnote omitted):
The standard in the Second Circuit for injunctive relief clearly calls for a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits 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.
This standard was reiterated in Seaboard World Airlines, Inc. v. Tiger International, *715 Inc., 600 F.2d 355, 359 (2d Cir. 1979), and Jack Kahn Music Co., Inc. v. Baldwin Piano & Organ Co., 604 F.2d 755 (2d Cir. 1979). Moreover, as the Jack Kahn court emphasized, the party seeking a preliminary injunction must show that irreparable injury is probable if the injunction does not issue. The possibility of such injury alone is not enough. A court in this Circuit cannot "regard as sufficient proof of a lack of any remedy at law a mere speculation that there is a possibility that the party seeking the injunction may in some unproved way suffer loss or damage." Id. at 759. This standard applies where preliminary injunctive relief is sought from an alleged trademark infringement. Selchow & Righter Co. v. McGraw-Hill Book Co., 580 F.2d 25, 27 (2d Cir. 1978).
The Court is satisfied that plaintiff has shown it probably will succeed on the merits of its claim that defendant infringed its "Brainy Blocks" trademark and believes plaintiff is likely to suffer irreparable injury if defendant is permitted to continue marketing its competing product as "Mr. Brain Builder." The name defendant has chosen to use for its tangram game is sufficiently similar to plaintiff's to create the likelihood that prospective purchasers will be confused as to the source of the games. The probable dilution in the value of plaintiff's trademark resulting from defendant's use of a similar name would result in harm that could not easily be translated into monetary damages, and it would be almost equally difficult to assess the damage done to plaintiff by the loss of sales resulting from defendant's use of an infringing mark.
To succeed on the merits of its infringement claim plaintiff must, as a threshold matter, establish that "Brainy Blocks" is a valid trademark and entitled to protection.
[A] mark found to be suggestive, arbitrary or fanciful (i. e., more than merely descriptive) is entitled to protection without proof of secondary meaning. . . . [T]he decision of the Patent and Trademark Office to register a mark without requiring proof of secondary meaning affords a rebuttable presumption that the mark is more than merely descriptive.
McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1132 (2d Cir. 1979), citing Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 11 (2d Cir. 1976). It does not appear that the Patent Office required plaintiff to establish secondary meaning before registering its trademark, nor has defendant suggested otherwise. Defendant has made no showing to rebut a presumption that Or Da's mark is more than descriptive.
Plaintiff's mark is not descriptive. There is no dispute that Or Da's use of the word "blocks" gives some indication of the nature of the product, as the game does contain geometric tile pieces resembling blocks, and the Court agrees that the inclusion of "brain" suggests a child would have to apply cognitive skills to play the game. This, however, hardly renders the name merely descriptive. Denominating the product as "Brainy Blocks" in no way "conveys an immediate idea of the ingredients, qualities or characteristics of the goods." Abercrombie & Fitch Co. v. Hunting World, Inc., supra, 537 F.2d at 11, quoting Stix Products, Inc. v. United Merchants & Manufacturers Inc., 295 F.Supp. 479, 488 (S.D.N. Y.1968). The term at least is suggestive, as "it requires imagination, thought and perception to reach a conclusion as to the nature of [plaintiff's] goods." Id. Thus, finding the mark to be more than merely descriptive, the Court need not require proof of secondary meaning to afford "Brainy Blocks" trademark protection.[5]
*716 Trademark infringement under section 32(1)(a) of the Lanham Act, 15 U.S.C. § 1114(1)(a), occurs when the nonconsensual use of a "colorable imitation of a registered mark . . . is likely to cause confusion, or to cause mistake, or to deceive." The weighing of a number of factors must necessarily enter into any consideration of the likelihood of confusion. Factors appropriate to the evaluation of confusion in trademark infringement cases involving different products were suggested by the court in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir. 1961). These factors were later applied in substantially the same form to infringement actions involving competing products. In Grotarian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 523 F.2d 1331, 1336 (2d Cir. 1975), the court listed as these seven factors:
"the strength of the [allegedly infringed] marks; the alleged infringer's purpose in adopting its marks; the degree of similarity between the marks; the degree of similarity between the products; the competitive proximity of the products; actual confusion; and the degree of care likely to be exercised by consumers."
See also B & L Sales Associates v. H. Daroff & Sons, Inc., 421 F.2d 352, 354 (2d Cir.), cert. denied, 398 U.S. 952, 90 S.Ct. 1873, 26 L.Ed.2d 292 (1970), and Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., 411 F.2d 1097, 1099 (2d Cir. 1969), cert. dismissed, 396 U.S. 1054, 90 S.Ct. 707, 24 L.Ed.2d 698 (1970). The Court has considered each of the factors as they relate to the case at hand.
Defendant's game competes directly with the plaintiff's three-game "Brainy Blocks" product line. Given that defendant's game was developed directly from plaintiff's concept, it is not surprising that Leisure Learning's game and Or Da's "Basic Brainy Blocks" are nearly identical products.
The parties' games can be expected to compete in the same stores for sales to the same class of customers. A large percentage of retail stores now carrying "Brainy Blocks" gamesperhaps the vast majority of these storesfirst purchased the product from the defendant when it was plaintiff's distributor. Defendant already has soughtand gives no indication it will not continue to seekto market its competing product through those same outlets to which it distributed Or Da games.
As indicated earlier, Or Da's "Brainy Blocks" is a suggestive rather than descriptive mark. It is not, as defendant contends, a weak mark entitled only to minimal protection. Plaintiff, of course, has no exclusive right to the use of "brain" in its mark. The registered trademarks of many other products designed to present an intellectual challenge utilize this word.[6] But, as defendant itself suggests, "it would be incorrect for purposes of comparison to break down each mark to its simplest element or characteristic . . . . All relevant factors *717 should be evaluated in their entirety as reflected by each mark and its respective product." Johnson & Johnson v. Colgate-Palmolive Co., 345 F.Supp. 1216, 1222 (D.N. J.1972).[7]
Regarding the degree of similarity between the marks, the Court finds that defendant's "Mr. Brain Builder" bears a sufficient similarity to plaintiff's "Brainy Blocks" to convey to the consumer the impression that the games come from the same source. This is all that is required for the similarity to give rise to a likelihood of confusion. "The law does not require that trademarks be carefully analyzed and dissected by the purchasing public." McGregor-Doniger Inc. v. Drizzle Inc., supra, 599 F.2d at 1134. In the case of competing products, "[t]he test is not whether the consumer will know the difference if he sees the competing products on the same shelf. It is whether he will know the difference if [`Mr. Brain Builder'] is singly presented and he has heard of ['Brainy Blocks']." American Home Products Corp. v. Johnson Chemical Co., 589 F.2d 103, 107 (2d Cir. 1978). The Court believes "Mr. Brain Builder" would fail such a "single presentation" test.
Leisure Learning's "Mr. Brain Builder" game and Or Da's "Brainy Blocks" games appear to be rather unique products. The Court has been presented with no evidence that there are similar games on the American market.[8] Moreover, on the basis of the evidence thus far presented, it would appear that Or Da's tangram game would be the only one like it on the market if its distributorship arrangement with Leisure Learning had not fallen through and defendant had not begun marketing its game. Thus, although the dress of the products may be different, the similarity of the names taken in the context of the uniqueness of the products strongly suggests confusion is likely.
"Mr. Brain Builder" and "Brainy Blocks" exhibit substantial similarities in sound, appearance and meaning.[9] Both marks used the word "brain" and in neither case does it describe the product. "Builder" and "blocks" have similar connotations and sound somewhat alike. Both words begin with a plosive "B," followed by the distinctive sound of the letter "L." In meaning the two words suggest constructiona builder is one who constructs; blocks are used in constructionand the suggestion that the game offers the "building blocks" of brain development is common to both products. The two marks employ identical alliteration. Neither defendant's use of "Mr." in an attempt to personify its mark nor its display of "Leisure Learning" below the mark appreciably diminishes the likelihood *718 of confusion.[10]See Miles Shoes, Inc. v. R.H. Macy & Co., 199 F.2d 602, 603 (2d Cir. 1952), cert. denied, 345 U.S. 909, 73 S.Ct. 650, 97 L.Ed. 1345 (1953) ("Miles Gro-Pals" infringed "Gro-Shoe").
Leisure Learning consciously imitated Or Da's product and by adopting such a similar name "has chosen to inch as close to the plaintiff's mark as [it] believes [it] safely can." J.R. Wood & Sons, Inc. v. Reese Jewelry Corp., 278 F.2d 157, 160 (2d Cir. 1960) (Friendly, J., dissenting). Unquestionably defendant's intent was to capitalize on plaintiff's reputation. Though as plaintiff's sole United States distributor Leisure Learning surely was instrumental in building whatever good will Or Da has in its "Brainy Blocks" trademark, these prior efforts on behalf of plaintiff's product make it no less objectionable for Leisure Learning now to select a name for its competing product so close to Or Da's trademark as to appropriate Or Da's good will. The Court thus has no difficulty finding Leisure Learning's use of the "Mr. Brain Builder" mark to have been in bad faith.
There has been no proof actual confusion resulted from the similarity of plaintiff's and defendant's marks. Plaintiff offered the testimony of Michael A. Weisman, president of Skye Marketing Corporation, Or Da's current United States distributor, to prove actual confusion, but Mr. Weisman's testimony was of little assistance, as it dealt only with the reactions of retailers and not with that of the consuming public. Fortunately for plaintiff, however, the absence of proof of actual confusion does not preclude the Court from granting injunctive relief. A "'showing of actual confusion is not necessary and in fact is very difficult to demonstrate' with reliable proof." Scarves by Vera, Inc. v. Todo Imports Ltd., 544 F.2d 1167, 1175 (2d Cir. 1976), quoting W.E. Bassett Co. v. Revlon, Inc., 435 F.2d 656, 662 (2d Cir. 1970). See also Gold Master Corp. v. Miller, 380 F.2d 128, 130 (2d Cir. 1967), and George Washington Mint, Inc. v. Washington Mint, Inc., 349 F.Supp. 255, 262 (S.D.N.Y.1972).[11]
Finally, in evaluating the likelihood of confusion in trademark infringement cases, trial courts are instructed to consider the level of sophistication of the purchasers of the products in question. McGregor-Doniger Inc. v. Drizzle Inc., supra, 599 F.2d at 1137. The Court need pause only briefly here, however, as it seems clear that the prospective purchasers of a relatively inexpensive children's game will not expend a great deal of effort studiously comparing Or Da's games with their Leisure Learning counterpart. As a consequence, it cannot be expected that the confusion resulting from the similarity of "Brainy Blocks" and "Mr. Brain Builder" will be dispelled by careful consumer examination.[12]
*719 Having determined it likely that plaintiff will succeed on the merits of its trademark infringement claim with respect to its "Brainy Blocks" mark, the Court must decide whether it is probable plaintiff will be injured irreparably if a preliminary injunction does not issue.[13] Irreparable injury is injury for which a monetary award will not provide adequate compensation. "[W]here money damages is adequate compensation a preliminary injunction will not issue." Jackson Dairy, Inc. v. H.P. Hood & Sons, supra, 596 F.2d at 72.
If this Court as trier of fact could measure the loss of good will associated with the dilution in value of plaintiff's trademark and could calculate the lost sales of "Brainy Blocks" games attributable to Leisure Learning's marketing "Mr. Brain Builder," plaintiff's request for preliminary injunctive relief would be denied. But, as courts in trademark infringement cases have so often recognized, "to prove the loss of sales due to infringement is . . . notoriously difficult." Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1195 (2d Cir. 1971). See also Selchow & Righter Co. v. McGraw-Hill Book Co., supra, 580 F.2d at 28 & n. 2. Moreover, Or Da's distributor Weisman testified that "Brainy Blocks," as a children's game, is very much a seasonal item, selling especially well during the months before Christmas. Measuring lost profits is particularly difficult for a product whose sales volume increases dramatically during a peak season. Menley & James Laboratories Ltd. v. Approved Pharmaceutical Corp., 438 F.Supp. 1061, 1068 (N.D.N.Y.1977) (allergy medication during hay fever season); Masterpiece of Pennsylvania, Inc. v. Consolidated Novelty Co., 368 F.Supp. 550, 553 (S.D.N.Y. 1973) (artificial Christmas trees).
The likelihood of serious dilution in trademark value by continued infringement also can provide a basis for finding irreparable injury. Hills Bros. Coffee, Inc. v. Hills Supermarkets, Inc., 428 F.2d 379, 381 (2d Cir. 1970). Plaintiff need not show it could never recover from the alleged trademark infringement. It is enough that the infringement materially retards Or Da's building good will in the "Brainy Blocks" mark. George Washington Mint, Inc. v. Washington Mint, Inc., supra, 349 F.Supp. at 263. As Judge Gurfein observed in George Washington Mint, id.: "If time is given to the defendant to move into the same competitive market there would inevitably begin an attrition of the aura of exclusivity appropriated to the plaintiff's good will. It would tend to take the plaintiff's reputation out of its own control."
Plaintiff's product has been on the American market for at least four years. First *720 through defendant Leisure Learning and now through its current distributor, Skye Marketing, Or Da has sought to establish a reputation in the United States as a manufacturer of educational games for children. Plaintiff considers "Brainy Blocks" its flagship game.[14] It seems clear to this Court that the continued marketing of defendant's competing game as "Mr. Brain Builder" would significantly impede Or Da's ongoing efforts to establish this reputation. Thus, in light of the above, the Court finds plaintiff has demonstrated a sufficient likelihood of irreparable injury to warrant preliminary injunctive relief.
Accordingly, plaintiff's motion is granted. Pending a final determination of this action, Leisure Learning shall be enjoined from selling, distributing and promoting its tangram game under the name "Mr. Brain Builder" or under any similar name. The foregoing constitutes the Court's findings of fact and conclusions of law.
Settle order on notice.
NOTES
[1] Hereinafter "defendant" refers only to Leisure Learning and not to the five unnamed defendants.
[2] It remains unresolved whether Leisure Learning's distributorship was pursuant to an executed written agreement with Or Da or was based solely on an oral, course-of-dealings working arrangement. Apparently there were some contract negotiations between the parties in 1975 but it is unclear at this juncture whether an agreement was reached and an instrument executed. The determination of this issue, however, is not necessary to the resolution of the matter now before the Court.
[3] This debt remains unpaid, although the principal on the debt owed Or Da by Leisure Learning does not appear to be in dispute. See affidavit of Richard G. Bendett, president of Leisure Learning, ¶ 4 (Sept. 19, 1979). Rather it would seem to be Bendett's precarious financial position that prevents his making good on the obligation of his company.
[4] The mark "Brainy Blocks" remains the dominant name on each of these games. The adjectives distinguishing the three products in the "Brainy Blocks" line are printed in decidedly smaller type than the trademarked name (about one-half size) and clearly are meant only to be descriptive of the level of difficulty of each "Brainy Blocks" game.
[5] The decisions in this Circuit have classified terms into four categories for trademark purposes. In ascending order of trademark strength, these categories are: (1) generic, (2) descriptive, (3) suggestive and (4) arbitrary or fanciful. See, e. g., McGregor-Doniger Inc. v. Drizzle Inc., supra, 599 F.2d at 1131. "Brainy Blocks," of course, has not become a generic term and, as noted above, is more than descriptive. Plaintiff suggests that its mark is both arbitrary and fanciful. With this the Court cannot agree. In Abercrombie & Fitch Co. v. Hunting World, Inc., supra, 537 F.2d at 11 n. 12, the court of appeals wrote:
As terms of art, the distinctions between suggestive terms and fanciful or arbitrary terms may seem needlessly artificial. Of course, a common word may be used in a fanciful sense; indeed one might say that only a common word can be so used, since a coined word cannot first be put to a bizarre use. Nevertheless, the term "fanciful", as a classifying concept, is usually applied to words invented solely for their use as trademarks. When the same legal consequences attach to a common word, i. e., when it is applied in an unfamiliar way, the use is called "arbitrary."
The mark in issue here appears to this Court to be neither arbitrary nor fanciful.
[6] Nine examples of such trademarks are presented in ¶ 7, affidavit of Richard G. Bendett (September 19, 1979):
Date of
Number First Use Mark Product
640,972 April 1976 Big Brain Toy Vehicles
803,380 Jan. 1965 Brain Buster Puzzle-Type
Parlor Game
831,755 Jan. 1966 Bird Brain Card-Type
Game
912,775 May 1969 Brain Teaser Puzzle-Type
Parlor Game
940,415 July 1970 Brain Twister Puzzle-Type
Parlor Game
966,435 May 1972 Brainstorm Game
1,081,189 Nov. 1976 Prof. Braine Dolls
1,081,903 Feb. 1977 Brain Waves Board Game
1,092,894 April 1977 Brains & Bull Board Game
[7] In Johnson & Johnson the court found that the trademark "Shower to Shower" for body powder did not infringe "Hour After Hour" for aerosol deodorant and antiperspirant. The Johnson & Johnson court held that the products were different and did not compete and ruled that "Hour After Hour" was a weak mark entitled only to limited protection. 345 F.Supp. at 1224.
[8] While there may, of course, be similar games on the market, almost surely there is no such game bearing a name like those here. The Court disagrees with defendant's contention that the tangram puzzle made by S.J. Miller Co. of Boulder, Colorado, Bendett aff., ¶ 8 and ex. AH (September 19, 1979), is a similar product. This product is a five-piece puzzle called "Brain Teaser," in which the pieces are to be placed together to form a square. It is not at all like plaintiff's children's game where a larger and varying number of pieces are used to form a variety of shapes.
[9] Similarity of sound, appearance or meaning may be enough to warrant a finding that confusion is likely. See, e. g., American Home Products Corp. v. Johnson Chemical Co., supra, 589 F.2d at 107 ("Roach Inn" found to infringe "Roach Motel"); Masterpiece of Pennsylvania, Inc. v. Consolidated Novelty Co., 368 F.Supp. 550 (S.D.N.Y.1973) ("Alpine King" infringed "Mountain King"); Burger Chef Systems, Inc. v. Burger Man, Inc., 492 F.2d 1398 (C.C.P.A. 1974) ("Burger Man" found to infringe "Burger Chef"); and Hancock v. American Steel & Wire Co. of New Jersey, 203 F.2d 737, 40 CCPA 931 (1953) ("Tornado" found confusingly similar to "Cyclone"). For an extensive compilation of marks found confusing because of similarity of appearance, sound or meaning, see 3 R. Callmann, Unfair Competition, Trademark and Monopolies § 82.1 (1969 & Supp.1978).
[10] Defendant maintains that it has used "brain" and "builder" in a descriptive sense, somehow conveying a message that the game is designed to improve a child's intellect. However, a name describing the objective of a game does not necessarily convey any idea of the contents, quality or characteristics of the game and thus would not ipso facto be a descriptive mark. Stix Products, Inc. v. United Merchants & Manufacturers Inc., supra, 295 F.Supp. at 488. As with plaintiff's mark defendant's name is at best suggestive of the nature of the product.
Even if this Court harbored some doubt about the similarity of the two marks it would be compelled to grant plaintiff its injunction. "One who adopts the mark of another for similar goods acts at his own peril and any doubt concerning the similarity of the marks must be resolved against him." American Home Products v. Johnson Chemical Co., supra, 589 F.2d at 107. See also United Merchants & Manufacturers, Inc. v. R.A. Products Inc., 404 F.2d 399, 400 (C.C.P.A.1968). Moreover, in this Circuit "numerous decisions have recognized that the second comer has a duty to so name and dress his product as to avoid all likelihood of consumers confusing it with the product of the first comer." Harold F. Ritchie, Inc. v. Chesebrough-Ponds, Inc., 281 F.2d 755, 758 (2d Cir. 1960).
[11] "Moreover, since reliable evidence of actual instances of confusion is practically almost impossible to secure, particularly at the retail level, in the final analysis the decision must rest on the court's conviction as to possible confusion." Miles Shoes, Inc. v. R.H. Macy & Co., supra, 199 F.2d at 603.
[12] Cf. Programmed Tax Systems, Inc. v. Raytheon Co., 419 F.Supp. 1251, 1254 (S.D.N.Y. 1976) (purchasers of computer and tax-system products highly sophisticated and not likely to be confused as to product purchased).
[13] In American Home Products Corp. v. Johnson Chemical Co., supra, 589 F.2d at 106, the court in its only discussion of irreparable injury said: "There is no question that irreparable harm would result from a failure to enjoin if the plaintiff ultimately succeeds on the merits." Plaintiff here contends that this statement authorizes this Court to presume irreparable injury is likely if it finds plaintiff's trademark has been infringed. The American Home Products court cited Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1195 (2d Cir. 1971), in support of this statement. In Omega Importing the court observed that in the case of competing products bearing identical marks there is "such high probability of confusion, [that] injury irreparable in the sense that it may not be fully compensable in damages almost inevitably follows." Id. See J. Gilson, Trademark Protection and Practice § 8.07 at p. 8-58 (1974). This theme recently reappeared in In the Matter of Vuitton et Fils S.A., 606 F.2d 1, (2d Cir. July 25, 1979) (per curiam), where, in a trademark infringement action alleging the sale of counterfeit Vuitton goods, the court of appeals directed the district court to issue ex parte a temporary restraining order. In Vuitton the court said: "In a trademark infringement case such as this, a substantial likelihood of confusion constitutes, in and of itself, irreparable injury sufficient to satisfy the requirements of Rule 65(b)(1)." Id. Nevertheless, this Court believes the court of appeals has yet to hold that the mere presentation of a prima facie case of trademark infringement automatically means the required showing of irreparable injury has been made. See Selchow & Righter Co. v. Book-of-the-Month Club, 192 U.S.P.Q. 530, 533 (S.D.N.Y.1976). In any event, resolution of this question is not necessary to a decision here.
[14] See affidavit of Yitzhak Segal, Managing Director of Or Da (September 18, 1979). Although there is some disagreement as to the proportion of Or Da sales the "Brainy Blocks" line constitutes, the parties do not dispute that "Brainy Blocks" easily is one of Or Da's leading sellers, if not its top seller. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263796/ | 238 P.3d 863 (2008)
WADSWORTH (MICHAEL)
v.
STATE.
No. 48071.
Supreme Court of Nevada.
June 4, 2008.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263762/ | 240 P.3d 887 (2009)
The PEOPLE of the State of Colorado, Complainant
v.
Mark Edward BRENNAN, Respondent.
No. 08PDJ052.
Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
October 28, 2009.
Attorney Regulation. Following a hearing pursuant to C.R.C.P. 251.18, a Hearing Board suspended Mark Edward Brennan (Attorney Registration No. 14012) from the practice of law for a period of one year and one day, effective January 21, 2010. The Colorado Supreme Court affirmed the Hearing Board's sanction on August 13, 2010. Respondent repeatedly ignored admonitions from a federal district court judge to follow trial protocol and openly expressed disdain for his rulings thereby disrupting and impeding the proceedings. He also verbally abused court staff and opposing counsel. Respondent engaged in this conduct with the intent to disrupt the tribunal. His misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5 and violated Colo. RPC 3.5(c) and 8.4(d).
*888 On July 14, 2009, a Hearing Board composed of EDWIN S. KAHN, PAUL J. WILLUMSTAD, both members of the Bar, and WILLIAM R. LUCERO, the Presiding Disciplinary Judge ("PDJ"), held a three-day hearing pursuant to C.R.C.P. 251.18. Kim E. Ikeler appeared on behalf of the Office of Attorney Regulation Counsel ("the People") and Mark E. Brennan ("Respondent") appeared pro se. The Hearing Board now issues the following "Decision and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b)."
DECISION AND ORDER IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.19(b)
I. DISCIPLINARY ISSUE ADDRESSED
A lawyer shall not engage in conduct intended to disrupt a tribunal or conduct prejudicial to the administration of justice. Respondent repeatedly ignored admonitions from a judge to follow trial protocol and openly expressed disdain for his rulings thereby disrupting and impeding the proceedings. He also verbally abused court staff and opposing counsel. If Respondent engaged in this conduct with the intent to disrupt the tribunal, what is the appropriate sanction?[1]
II. SUMMARY
Respondent engaged in a pattern of progressively egregious misconduct during an eight-day jury trial. His conduct was not the product of human frailty in the course of a contentious trial. To the contrary, Respondent purposely challenged a federal district court judge, because he believed the judge held a bias in favor of his opponent. Ultimately, the judge found Respondent in contempt of court for his insolent behavior and disrespect for the authority of the tribunal. Yet, even after the judge entered the contempt order, Respondent persisted in his impertinent behavior.
After carefully reviewing the entire trial record and the testimony of the witnesses, including Respondent, the Hearing Board finds by clear and convincing evidence the following:
Respondent knew the import of, yet willfully disregarded, Judge Robert Blackburn's repeated admonitions to refrain from his improper behavior. Respondent therefore intentionally disrupted the tribunal thereby violating Colo. RPC 3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal).[2]
Respondent refused to obey unambiguous orders of the judge directed to him multiple times and engaged in obstreperous behavior in and outside the presence of the jury thereby violating Colo. RPC 8.4(d) (it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice).[3]
SANCTION IMPOSED: ATTORNEY SUSPENDED FROM THE PRACTICE OF LAW FOR A PERIOD OF ONE YEAR AND ONE DAY.
III. PROCEDURAL HISTORY
The People filed a "Complaint" alleging two separate ethical violations against Respondent: Colo. RPC, 3.5(c) (a lawyer shall not engage in conduct intended to disrupt a *889 tribunal); and Colo. RPC 8.4(d) (a lawyer should not engage in conduct prejudicial to the administration of justice) on May 29, 2008. On November 12, 2008, Respondent filed an "Answer" after the PDJ had granted various extensions of time and denied Respondent's multiple motions to dismiss.
The Hearing Board commenced the hearing pursuant to C.R.C.P. 251.18 on July 14, 2009 and concluded it on July 16, 2009. The parties urged the Hearing Board to review the entire trial transcript from which these disciplinary claims arose.[4] The PDJ also admitted the People's exhibits 1, 2, 12, and 13, as well as Respondent's exhibits A, B, C, D (1 and 2), and E. The PDJ also adopted the separate Trial Management Orders submitted by the parties.
IV. FINDINGS OF FACT AND RULE VIOLATIONS
Jurisdiction
Respondent has taken and subscribed the oath of admission and the Colorado Supreme Court admitted him to the Bar on October 30, 1984. He is registered upon the official records under Attorney Registration No. 14012. Therefore, he is subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b). Respondent's registered business address is P.O. Box 2556, Centennial, CO 80161.
Background
William Cadorna hired Respondent following his dismissal from the Denver Fire Department ("DFD") in 2003. The DFD fired Mr. Cadorna after his immediate supervisor initiated an investigation accusing Mr. Cadorna of stealing a cookbook from a Safeway store while on duty. At the DFD's behest, Mr. Cadorna was later charged with misdemeanor theft in Denver Municipal Court. When a jury could not reach a verdict, the Denver City Attorney's Office dismissed the theft case.[5]
At the time of his dismissal, Mr. Cadorna was approximately fifty years old and had worked for the DFD for twenty-seven years. After Mr. Cadorna's discharge, Respondent challenged the dismissal before the Civil Service Commission. The judge in the Civil Service proceedings upheld the dismissal. While the judge found there had not been good cause to believe Mr. Cadorna committed theft while on duty, the judge nevertheless found that state law would not permit Mr. Cadorna to be reinstated.[6] Despite the judge's decision, Mr. Cadorna applied for and received a medical disability retirement from the City and County of Denver ("the City").
After Mr. Cadorna exhausted all of his remedies in the administrative proceedings before the Civil Service Commission including the appeals process, Respondent filed an age discrimination suit on behalf of Mr. Cadorna against the City in the federal district court: William R. Cadorna v. City and County of Denver, 04-CV-1067-REB-CBS. Respondent sought damages for violating the Age Discrimination in Employment Act and denial of substantive due process. He also sought to be reinstated as a firefighter. Furthermore, Respondent argued the refusal to reinstate Mr. Cadorna based upon a state statute that used age as a criterion violated the Age Discrimination in Employment Act.
In the Civil Service Commission's decision and later in the appellate proceedings, the DFD and the City took the position there had been good cause to terminate Mr. Cadorna even though the Civil Service judge found there was insufficient evidence to justify his *890 dismissal based upon the DFD's claim that he had committed theft. Further, the City claimed Mr. Cadorna had applied for retirement before his dismissal and therefore had voluntarily decided to leave the fire department before the DFD terminated him. Thus, the City argued Mr. Cadorna had not been fired because of his age; he had voluntarily resigned before the City took any action against him.
In the proceedings before the Civil Service Commission as well as those in federal court, Respondent vigorously argued Mr. Cadorna should have been reinstated because he had been terminated as a result of DFD's shoddy investigation. Respondent argued the Safeway manager, who signed a criminal complaint charging Mr. Cadorna with theft, did so without knowing the facts and at the behest of Mr. Cadorna's supervisor who had a long-standing grudge against Mr. Cadorna.
The same Safeway manager who signed the theft complaint against Mr. Cadorna testified for the City in the criminal court, but failed to disclose evidence that Respondent claimed was exculpatory: a cookbook bearing Mr. Cadorna's name and what appeared to be his badge number on the inside cover was found in the store after Mr. Cadorna claimed to have misplaced it there. Respondent's position was that a clerk gave Mr. Cadorna permission to take a cookbook after Mr. Cadorna told the clerk he had misplaced his cookbook in the Safeway store while on duty and shopping for groceries for the firehouse. The City's position was Mr. Cadorna, at a minimum, obtained the cookbook without permission from someone in authority at the store and did so by improperly using his position as a firefighter to pressure the clerk into letting Mr. Cadorna take a new cookbook without paying for it.
Preliminary Proceedings in Judge Blackburn's Court
Before the trial began in federal court, Judge Robert E. Blackburn ("the Court") issued two separate orders pursuant to D.C.COLO.LCivR 43.1 and REB Civ. Practice Standard IV.A.1 detailing trial procedures in his court.[7] These orders included protocol for handling objections. Objections had to be made succinctly and supported by the applicable law. Lawyers were not allowed to "speechify" their objections or responses in front of the jury, and stipulations needed to be prepared before trial commenced.
In addition, the lawyers were required to "review the Trial Checklist with the courtroom deputy clerk." The clerk in turn advised the parties that the Court did not permit them to be speaking while the Court issued the oath to a witness. Furthermore, the parties were not to address witnesses by their first names.
Before the trial commenced, Respondent filed a motion to disqualify Judge Blackburn. Judge Blackburn denied the motion. Before denying the motion, Judge Blackburn admonished Respondent for the content and tone of an email Respondent had sent to his clerk in preliminary proceedings.[8]
Early Stages of Trial in Federal District Court
During the first two days of trial, Judge Blackburn admonished Respondent and the City Attorneys on occasion for not following the protocol outlined in his pre-trial order. Respondent responded cordially and professionally to these early admonitions, which generally related to Respondent's habit of asking questions before the judge had an opportunity to rule on the pending objections. In this context, Judge Blackburn admonished both parties by stating:
We are done. Again the trial practice orderand counsel read it, both of you please. I have had you ask me questions over the last couple of days about the contents of that order that are absolutely plain, and one of the things that are plain is the protocol for marshalling objections, *891 Mr. Brennan, and that's objection, response, reply, and then the ruling, and that's where we are.
The Hearing Board finds Respondent's initial breaches of the Court's protocol insufficient to establish by clear and convincing evidence that he intended to disrupt the tribunal or knowingly engaged in conduct prejudicial to the administration of justice. However, Respondent was then on notice Judge Blackburn would not tolerate further breaches of courtroom protocol.
Nevertheless, knowing that Judge Blackburn repeatedly admonished him for not following the Court's protocol, Respondent continued to do so and openly challenged the admonitions. When Judge Blackburn sua sponte admonished Respondent for reading from a document not yet admitted into evidence, Respondent, in the presence of the jury, protested the admonition stating:
I wonder if the jury should be hearing this kind of remonstration all the time which I think has a tendency to prejudice them against me. Because you are in essence passing judgment upon my competence as an attorney in their presence.
Judge Blackburn then removed the jury and stated to Respondent:
Mr. Brennan, I find those final remarks deliberately made in the presence of the jury to be highly disrespectful of the court, in violation of Rule 103(c), and an effort on your part, apparently, to pad the record with injected prejudice.
The only way the Court can stop inappropriate behavior when it sees it is to do so on the record, and I did so, and that's a fortiori, sir, when this is not the first or second but the multiple time in which you insist in disregarding the admonishment of this Court, which is proper and appropriate, not to suggest to the jury evidence which has not yet been admitted. And I will expect you to conform your conduct accordingly.[9]
Respondent replied to the Court's admonition by arguing the City "shape-shift[ed] into a new version of the facts every time the one that it formerly adopted is shot down." Judge Blackburn then reprimanded the parties for not preparing stipulations in a timely fashion and "exhorted" them to stipulate to exhibits upon which there was no controversy.[10] The City then advised the Court that they had tried to confer with Respondent on the exhibits before the trial commenced but Respondent had refused to do so. Respondent responded, "That's absolute nonsense." Judge Blackburn firmly stated to both Respondent and the City, "That's enough."[11]
The Hearing Board finds at this point in the trial Respondent knew or should have known Judge Blackburn was understandably growing impatient with his failure to abide by the Court's rules of protocol and interfering with a properly conducted trial.
Nevertheless, Respondent continued to disregard Judge Blackburn's orders. Up to this point Judge Blackburn was understandably troubled Respondent continued to "speechify" objections, interrupt the Court, and make editorial comments about the evidence.[12] The Hearing Board finds after Judge Blackburn issued multiple warnings to stop disobeying the Court's direct orders, Respondent, at this point, knowingly and intentionally failed to abide by the Court's continued admonitions.
Judge Blackburn Warns Respondent that He will be Held in Contempt
Towards the end of the third day of trial, Judge Blackburn felt compelled to halt the proceedings after Respondent made an editorial comment about a witness's appearance. The Court took a fifteen minute recess and admonished Respondent as follows:
*892 Mr. Brennan, enough is enough. You are going to have to find it within your power to resist what apparently is the almost irresistible to comment editorially as you conduct examination during the trial of this case.
And no longer will you be able, regardless of how well intended your remarks are, to compliment a witness as he or she testifies.
Both of those practices are unacceptable and inappropriate in the trial of this action. Please exert your best efforts now, under pain and penalty of contempt of court, to conform your conduct to the simple requirements of this court. Thank you.[13]
When Respondent resumed the questioning of the witness, he again made another editorial comment about a witness's testimony.[14] Giving Respondent the benefit of the doubt, the Hearing Board cannot discern this second editorial comment alone was intended to disrupt the tribunal. However, thereafter, we note Respondent's attitude toward Judge Blackburn and his authority became increasingly disrespectful and contemptuous.[15] We therefore find from this point forward, Respondent was not only aware of his conduct and its consequences, but he began to intentionally focus his animus toward the tribunal and its authority.
Respondent Continues to Disregard the Judge Blackburn's Admonitions
When Respondent continued to disregard Judge Blackburn's numerous admonitions to stop talking while the Court was speaking, editorializing about evidence in front of the jury, and interrupting witnesses before they could complete their answers, Judge Blackburn terminated Respondent's cross-examination of a witness as a sanction. During an exchange outside the jury's presence, Judge Blackburn stated the following to Respondent:
After being repeatedly admonished, warned by the court with the threat of sanction, including but not limited to termination of cross-examination, Mr. Brennan again violated this court's reasonable requirement, recognized by all courts, that he not editorialize during the propounding of a question or in connection with an answer.
And yet, again he, in addressing this witness improperly, "There is a straight answer." That personal comment on the evidence by an attorney in any court, including Federal Court, remains improper and inappropriate, the sanction for which is plaintiff's cross examination is now terminated.[16]
Thereafter, Judge Blackburn reminded Respondent his conduct was "the quintessence of contempt of court."[17] In this exchange, Respondent continued to argue with Judge Blackburn and refused to clear the podium when ordered to do so.[18] At this point, the court reporter became concerned that the presence of a United States Marshal might be required in order for Respondent to acknowledge Judge Blackburn's direct order. Further, the court reporter reasonably felt physically threatened by Respondent's behavior. The Hearing Board notes Respondent is a big man, at least six feet tall, with a stocky build and voice that booms, especially when he is angry or agitated as when the Court terminated his cross-examination.
Judge Blackburn Admonishes Respondent for Making Facial Expressions
On the fourth day of trial, after Judge Blackburn sustained the City's objection on an evidentiary matter, the Court again admonished Respondent for making facial expressions in the jury's presence in response to the ruling. Judge Blackburn excused the jury, and admonished Respondent as follows:
Mr. Brennan, frankly I can do without the facial expressions and the communications *893 that are made when this court makes a ruling that is adverse to you.[19]
Also during the fourth day of trial, in the hallway just outside the courtroom, Respondent called one of the City's attorneys a "fucking weasel" after the attorney reminded Respondent that he should not coach his client during a recess. Respondent admits he made this statement. Further, on another occasion out of the jury's presence, Respondent called a second attorney representing the City a "pinche cabron" and "hijo de puta."[20] Again, Respondent admitted using these derogatory and pejorative phrases in addressing Mr. Lujan, one of the attorneys defending the City against Mr. Cadorna's claims.
Court Holds Respondent in Contempt
On the final day of the trial, outside the presence of the jury during a bench conference, Judge Blackburn asked Respondent to make an offer of proof before calling a rebuttal witness. In his offer, Respondent stated he was calling the witness to cross-examine an official at the policy-making level on the subject of age discrimination. Respondent stated that the Court had precluded him from doing so and thereby deprived Mr. Cadorna an opportunity to present crucial evidence on that subject. Respondent went on to tell Judge Blackburn, "If you want to take up any of my conduct in this trial, that's fine. Just so it doesn't affect this trial to the detriment of my client."[21]
Judge Blackburn responded by stating, "I have no personal or professional contempt for you." Respondent then stated, "I have sensed otherwise, your Honor, with all due respect." Judge Blackburn again reminded Respondent that he had been admonished numerous times, but nevertheless continued to repeatedly insist on having the last word, even when the Court attempted to rule and move forward. Judge Blackburn characterized Respondent's conduct in this exchange as an attempt to "bully" the Court. The Hearing Board agrees with Judge Blackburn's characterization.
Again during this exchange, Judge Blackburn admonished Respondent to stop talking while the Court was speaking. And again, Respondent refused to abide by the Court's order stating, "I am not trying to bully you, sir."[22] Judge Blackburn then excused the jury and fined Respondent $500.00 for what the Court described as "contemptuous" behavior.[23] Respondent sarcastically responded, "May I inquire while we are waiting when you want that paid, your Honor?"
In light of the numerous admonitions Judge Blackburn issued to Respondent before this last exchange, the Hearing Board has no doubt Respondent intended to disrupt the proceedings. The Hearing Board finds Respondent's words and actions demonstrate clear and convincing evidence of his disrespect and contempt for the Court's authority. Respondent's repeated failure to abide by Judge Blackburn's authority also proves by clear and convincing evidence that he intended to disrupt the tribunal.
While the Hearing Board finds the written record alone supports our findings on Respondent's intent to disrupt the proceedings, we also note the court reporter's testimony, supported by her contemporaneous notes made during the trial concerning Respondent's conduct, corroborates our findings. Never before in her years of reporting had she ever found it necessary to take notes on an attorney's conduct during a trial. Respondent's words and actions were so physically and verbally threatening that this veteran court reporter felt she might have to summon a United States Marshal to maintain order.
The court reporter testified to Respondent's rude behavior, his facial expressions following Judge Blackburn's rulings, and to the inappropriate comment he made to her during a recess suggesting Judge Blackburn *894 was doing everything he could to help the City win the case. The Hearing Board finds this testimony to be credible because she witnessed and recorded the entire trial making specific notes about Respondent's behavior, including Respondent's conduct outside the presence of the jury.
Respondent's Testimony
Respondent characterized his trial demeanor as simply "bad manners." He claims he never intended to show disrespect toward the Court or disrupt the proceedings. We do not believe this statement. Respondent stated he no longer wishes to be an attorney because "the profession is corrupt." Specifically, Respondent believes the City, the DFD, and Judge Blackburn conspired to deprive his client of his Constitutional rights.[24] While the Hearing Board finds Respondent fervently believed the forgoing to be true, we also find this belief does not excuse his misconduct.
In determining Respondent's credibility or lack thereof as the trier of fact, the Hearing Board considers Respondent's demeanor and manner during these disciplinary proceedings. Respondent was bombastic, sarcastic, and contemptuous of the disciplinary process. Respondent was thirty minutes late for the first day of the disciplinary hearing and offered that he had been delayed at a train crossing. During the disciplinary hearing he made highly improper statements, including accusing Judge Blackburn's clerk's father of being a member of the Ku Klux Klan. Later, he asked the same witness, who hailed from the South, "who got the shotgun and who got the pickup when you got your divorce." At one point, he called the Hearing Board a "kangaroo court."
The PDJ twice held Respondent in contempt of court for his insolent and disrespectful behavior during the disciplinary hearing. After witnessing first-hand Respondent's demeanor in these proceedings, the Hearing Board gives no weight to his claim that he meant no disrespect to the judge, opposing counsel, and witnesses. However, we only considered Respondent's conduct in these proceedings for the limited purpose of accessing his credibility and not as proof that he violated Colo. RPC 3.5(c) and Colo. RPC 8.4(d) as charged in the People's complaint.
Based upon the foregoing findings and conclusions, the Hearing Board finds by clear and convincing evidence that Respondent violated Colo. RPC, 3.5(c), a lawyer shall not engage in conduct intended to disrupt a tribunal and Colo. RPC 8.4(d), a lawyer should not engage in conduct prejudicial to the administration of justice.
V. SANCTIONS
The American Bar Association Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) ("ABA Standards") and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct.[25] In imposing a sanction after a finding of lawyer misconduct, the Hearing Board must first consider the duty breached, the mental state of the lawyer, the injury or potential injury caused, and the aggravating and mitigating evidence pursuant to ABA Standard 3.0.
ABA Standard 3.0 ConsiderationsDuty, Mental State, and Injury
We begin with the proposition that members of the legal profession must adhere to the highest ethical standards regardless of the lawyers perceived motive for deviating from these standards.[26] The Hearing Board *895 finds that Respondent violated his duty to the legal system.[27] Respondent specifically violated his duty to the legal system by disrupting the Court and thereby interfering with the legal process. Lawyers are officers of the court with the duty to abide by legal rules of substance and procedure affecting the administration of justice. Respondent failed to comply with this duty.
The Hearing Board next finds Respondent knowingly and intentionally engaged in the established misconduct.[28] He was aware of the nature or attendant circumstances of his conduct, despite his claims that he was simply acting zealously on behalf of his client and he did not intend to disrupt the tribunal. We reject this argument because our review of the record is to the contrary and Respondent has no credibility on this point. The facts amply demonstrate Respondent's repeated refusal to abide by Judge Blackburn's rulings and we find this conduct demonstrates his knowing and intentional conduct.
Finally, the Hearing Board finds Respondent caused injury and potential injury to the legal system, and the profession. Respondent's intentional disregard and disdain for the Court's authority is inimical to our system of justice. The fact that one of the jurors the People interviewed wondered whether the City had "gotten to the judge" is evidence of injury he has caused.
ABA Standard 3.0 ConsiderationsAggravating Factors
Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed.[29] The Hearing Board considered evidence of the following aggravating circumstances in deciding the appropriate sanction:
Pattern of Misconduct and Multiple Offenses9.22(c) and (d)
The pattern of misconduct is set forth in our findings above. Suffice it to say Respondent's misconduct pervaded the proceedings. Although Respondent acted respectfully in the early stages of the trial, his conduct became increasingly obstreperous as the trial proceeded. Generally, the Hearing Board finds his conduct in the trial to have been boorish and insolent to a degree that he impeded the proceedings. Respondent amply demonstrated he uses bullying tactics when he does not get his way.
However, we note that Respondent's pattern of misconduct was within a single trial. There was no evidence of a pattern outside the trial. Therefore, we do not find clear and convincing evidence of a pattern of misconduct. Nor do we find clear and convincing evidence of multiple offenses. While the People brought two separate claims under the Colorado Rules of Professional Conduct, the gravamen of Respondent's misconduct was his disrespect for Judge Blackburn and the judicial process. Therefore, we do not find this sufficient to find multiple offenses.
Substantial Experience in the Practice of Law9.22(i)
Respondent has held his law license for nearly twenty-five years. He should have recognized that his conduct was highly improper based upon his experience in the legal profession. Even a novice lawyer would recognize how improper and disrespectful it is to directly challenge a judge's authority in the manner Respondent challenged Judge Blackburn's authority.
ABA Standard 3.0 ConsiderationsMitigating Factors
Mitigating factors are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.[30]
Absence of Prior Discipline 9.32(a)
Respondent has no prior discipline in nearly twenty-five years of practice. The Hearing *896 Boards finds this to be a substantial mitigating factor.
Imposition of Other Penalties 9.32(k)
Judge Blackburn found Respondent in contempt of court and fined him $500.00 for his obstreperous conduct. While this sanction is a penalty Respondent has suffered as a result of his misconduct, the Hearing Board does not grant inordinate weight to it because this monetary sanction does not fully address the ethical issues or conduct we address herein.
Analysis Under ABA Standards and Colorado Case Law
The Hearing Board considers the following standards most appropriate given our finding that Respondent intended to disrupt a tribunal and engaged in conduct that is prejudicial to the administration of justice.[31] ABA Standard 6.21 provides:
Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury of potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding (emphasis added).
ABA Standard 6.22 provides:
Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or potential interference with a legal proceeding (emphasis added).
Although the Hearing Board has found that Respondent knowingly and repeatedly violated court orders and did so intending to disrupt the tribunal by insolently challenging its authority, we do not find that disbarment is the appropriate sanction. Instead, the Hearing Board finds that ABA Standard 6.22 is the most appropriate standard to apply in this case. We make this finding, in part, because of Judge Blackburn's diligence in reasonably moving the trial forward in spite of Respondent's recalcitrance.
Although there were delays, we cannot find clear and convincing evidence they were serious or potentially serious given Judge Blackburn's ability to move the trial forward and the absence of the need for a mistrial. We also make this finding because the jury was intelligent, conscientious, and sophisticated. Most important, they followed Judge Blackburn's instructions in reaching a verdict.[32] They did so, in part, because Judge Blackburn maintained control of the courtroom. We therefore find the evidence presented shows Respondent's misconduct interfered, rather than substantially interfered, with the trial. Thus, ABA Standard 6.22 is most applicable.
It is fundamental to our system of justice that lawyers maintain the respect due the tribunal, witnesses, and fellow lawyers. The gravamen of Respondent's misconduct concerns his insolent behavior and disrespect toward the tribunal. In addition, he engaged in bullying tactics and inappropriate statements to opposing counsel and court staff. Colorado case law dealing with these subjects holds that even an isolated occurrence of such misconduct warrants discipline. See People v. Dalton, 840 P.2d 351, 352 (Colo. 1992) citing Losavio v. District Court, 182 Colo. 180, 512 P.2d 266, 268 (1973).
The Colorado Supreme Court has approved a public censure for a lawyer who *897 posed questions to witnesses concerning evidence the court had ruled inadmissible and commented on the same when the evidence showed the conduct was an aberration from the lawyer's normal conduct. People v. Janiszewski, 901 P.2d 476, 477 (Colo.1995). However, as we find above, Respondent acted intentionally in disobeying the Court's orders and such actions were not an aberration in the context of a single trial. Respondent's conduct throughout the eight-day trial grew increasingly belligerent as we noted above.
If a single inappropriate comment had been directed to opposing counsel, witnesses or parties during a highly contested trial, a public censure would generally be appropriate. People v. Sharpe, 781 P.2d 659, 660 (Colo.1989) (where a deputy district attorney called a witness a "chili eating bastard").
Nevertheless, a single act of disobedience to a direct order of the court may be sufficiently egregious to warrant a suspension. In In re Roose, 69 P.3d 43, 46 (Colo. 2003), the Colorado Supreme Court imposed a suspension of a year and a day when the evidence clearly showed a lawyer walked out of court despite the court's admonition she remain and continue representing her client in a scheduled hearing. In Roose, the court found the Hearing Board's recommended sanction of disbarment too harsh because the evidence showed respondent acted knowingly, not intentionally. The Supreme Court found that suspension rather than disbarment the most appropriate sanction stating:
In the absence of a finding of intent to obtain a benefit by disobeying the district court's order or to deceive the court of appeals, the appropriate sanction for both knowingly submitting materially false statements and knowingly violating a court order, as long as those acts caused at least some injury to a party or adverse effect on the legal proceeding, is suspension. See ABA Standards 6.12 and 6.22; See also In the Matter of Attorney C, 47 P.3d 1167, 1173 (Colo.2002).[33]
The Hearing Board finds Roose helpful in its analysis.[34] However, Respondent engaged in much more harmful and culpable conduct than Roose when he repeatedly disobeyed and undermined Judge Blackburn's authority throughout an eight-day trial. Roose walked out of court and that was the extent of her misconduct before the court. Respondent, on the other hand, continued to disrupt the proceedings in what we find to be a pattern of challenging the Court. Although Respondent perceived such action was necessary to deal with a corrupt system of justice, we find that no excuse or mitigation for his misconduct.
"Unless order is maintained in the courtroom and disruption prevented, reason cannot prevail and constitutional rights to liberty, freedom and equality under law cannot be protected. The dignity, decorum and courtesy [that] have traditionally characterized the courts of civilized nations are not empty formalities. They are essential to an atmosphere in which justice can be done." Code of Trial Conduct § 17 (American College of Trial Lawyers 1983). Matter of Vincenti, 92 N.J. 591, 458 A.2d 1268, 1275 (1983). Like the Respondent in Vincenti, Respondent engaged in a pattern of sarcastic and disrespectful behavior toward the Court, witnesses, and opposing counsel.
Based upon this authority, the Hearing Board finds a suspension of a minimum of a year and a day is consistent with Colorado case law and the ABA Standards.
VI. CONCLUSION
Trial attorneys must not lose their perspective and engage in misconduct even though such behavior occurs in the heat of a hard fought trial. If they engage in a single act of misconduct, the sanction rarely warrants a lengthy suspension. This is especially so if the lawyer thereafter abides by the *898 court's admonition to stop engaging in the offending conduct. However, Respondent's misconduct and bullying tactics pervaded the trial. At the core of Respondent's misconduct is his flawed but firmly held belief that he was justified in conducting himself as he did. Indeed, Respondent argues that he should receive a commendation for taking on Mr. Cadorna's case and fighting a corrupt system of justice.
There is a point at which zealously representing a client does harm to our judicial system, especially when the lawyer disregards the legitimate orders of the tribunal as Respondent did here. The Hearing Board believes this case demonstrates what can happen when an attorney abandons respect for the tribunal under the guise of zealous representation.
Yet, we find that Respondent's lack of a prior discipline in nearly twenty-five years of practice an indication that rehabilitation may be possible. The Hearing Board therefore concludes that a suspension of one year and one day is the appropriate sanction.
VII. ORDER
The Hearing Board therefore ORDERS:
1. MARK E. BRENNAN, Attorney Registration No. 14012 is hereby SUSPENDED from the practice of law for a period of ONE YEAR AND ONE DAY. The suspension SHALL become effective thirty-one (31) days from the date of this order in the absence of a stay pending appeal pursuant to C.R.C.P. 251.27(h).
2. Respondent, as a condition precedent to any petition for reinstatement pursuant to C.R.C.P. 251.29(c), SHALL submit to an Independent Medical Examination ("IME") by a qualified doctor agreeable to the People. Respondent, not the People, shall be responsible for the cost of the IME. Once a qualified expert is chosen, it is Respondent's duty to advise the PDJ so that an appropriate order may be drafted and presented to the doctor as to what issues to address in a report to the PDJ. The doctor shall have access to all records in the People's possession, as well as this opinion, before meeting with Respondent for the scheduled IME.
3. Respondent SHALL pay the costs of these proceedings. The People shall submit a "Statement of Costs" within fifteen (15) days from the date of this order. Respondent shall have ten (10) days thereafter to submit a response.
NOTES
[1] Colo. RPC 3.5, comment [2] (2007) states, "The advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics."
[2] A tribunal is defined as "[a] court or other adjudicatory body." See Black's Law Dictionary 1544 (8th ed.2004). Inherent in the Hearing Board's findings is the conclusion that the judge is a representative of the judicial system and its tribunals. Any misconduct directed toward the judge is necessarily directed at the tribunal or office he/she holds. We also believe that disrespect or sarcasm towards the judge's staff is improper because they are court agents.
[3] Respondent's misconduct went well beyond poor choice of words or misdirected enthusiasm in a heated discussion with the court. See In re Snyder, 472 U.S. 634, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985).
[4] See the People's Exhibits 3-5. A transcript helps in the Hearing Board's determination of facts, however, as more fully detailed in this opinion, the Hearing Board made its findings from a number of sources, including the testimony of witnesses including Respondent.
[5] The issue of whether Mr. Cadorna committed theft was hotly disputed in the federal court. Respondent presented evidence that the Civil Service judge who had heard Mr. Cadorna's appeal found that there was insufficient evidence to show Respondent's client committed theft. Nevertheless, the judge decided that Cadorna was not eligible to be reinstated to the Denver Fire Department. See C.R.S. § 31-30.5-604. The Hearing Board considered these and other background facts to give context to Respondent's behavior and tactics during the trial.
[6] See the People's Exhibit 6, page 846. C.R.S. § 31-30.5-604.
[7] See the People's Exhibits 1 and 2.
[8] The Hearing Board does not consider this conduct for any other purpose than to show the events leading up to the trial. Respondent in his case in chief, not the People, disclosed these events to the Hearing Board. The People's complaint is silent about any controversy involving Judge Blackburn's clerk prior to the trial.
[9] See the People's Exhibit 5, Trial Transcript page 430.
[10] See the People's Exhibit 5, Trial Transcript pages 435-36.
[11] See the People's Exhibit 5, Trial Transcript page 440.
[12] See the People's Exhibits 5-11, Trial Transcript pages 502, 504, 514, 540, 541, 557, 586, 588, 592, 599, 604, 613, 622, 633, 633, 701, 720, 750, 761, 762, 768, 830, 838, 840, 867, 872, 1052, 1077, 1078, 1082, 1128, 1168, 1167, 1217, 1247, 1254, 1305, 1309, 1316, 1317. 1319, 1376, 1377, 1386, 1390, 1406, 1436, 1439, 1458, 1460, 1486, 1607, 1615, 1639.
[13] See the People's Exhibit 5, page 607.
[14] See the People's Exhibit 5, page 619.
[15] See the People's Exhibits 7-9, pages 1078, 1082, 1097, 1217, 1247, 1254, 1305, 1317, 1319, 1386, 1388, 1390, and 1436.
[16] See the People's Exhibit 9, pages 1436-37.
[17] See the People's Exhibit 9, page 1438.
[18] Id.
[19] See the People's Exhibit 6, page 840.
[20] These are Spanish pejorative phrases. The first phrase is one literally translated as "damned goat, big goat." The second phrase is literally translated as "son of a whore."
[21] See the People's Exhibit 9, page 1458.
[22] See the People's Exhibit 9, page 1459.
[23] See the People's Exhibit 9, page 1461.
[24] While the People's notes of the juror's comments, including those of the foreperson, would indicate that they did not feel Respondent was trying to disrupt the proceedings, their statements were made after learning Judge Blackburn had granted a new trial and discounted, in their opinion, their time, deliberations, and ability to judge the case on the facts. Furthermore, the jurors were not privy to Respondent's most egregious behavior, much of which occurred outside their presence. Taken as a whole, we find the testimony of the court reporter more credible on the issue of Respondent's behavior during the entire proceeding.
[25] See In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).
[26] See In re Pautler, 47 P.3d 1175, 1176 (Colo. 2002).
[27] See ABA Standard 6.0.
[28] See ABA Definitions. "`Knowledge' is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." "`Intent' is the conscious objective or purpose to accomplish a particular result."
[29] See ABA Standard 9.21.
[30] See ABA Standard 9.31.
[31] The appendix to the ABA Standards states that the appropriate standards for Rule 3.5(c) and Rule 8.4(d) violations are 6.3 and 6.0. The Hearing Board finds that ABA Standards 6.21 and 6.22 are inclusive within ABA Standard 6.0 and are the most applicable standards here because their commentaries specifically address the misconduct found in this case.
[32] Although none of the jurors testified live in these proceedings, the PDJ allowed Respondent to present statements the People took from them in the course of the disciplinary investigation. The PDJ also allowed the video deposition of Mrs. Dillingham to be presented to the Hearing Board for their consideration. Without this evidence, Respondent would have been entirely precluded from presenting evidence of their observations during the trial. As stated above, these jurors were not privy to some of Respondent's most egregious behavior because Judge Blackburn reasonably asked them to return to the jury room while addressing Respondent. The PDJ, exercising discretion, allowed the deposition of Mrs. Dillingham and the juror's statements to the People's investigator to be presented to the Hearing Board.
[33] See In re Roose, 69 P.3d 43, 49 (Colo.2003). The Hearing Board notes one of the allegations in Roose was that the respondent violated Colo. RPC 8.4(d), conduct prejudicial to the administration of justice, the same as claim two in the present case.
[34] The Hearing Board notes Roose was also charged with violating Colo. RPC 3.4(c), knowingly disobeying a court order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337859/ | 212 Va. 136 (1971)
LARRY DONELL ROBINSON
v.
COMMONWEALTH OF VIRGINIA.
Record No. 7481.
Supreme Court of Virginia.
September 1, 1971.
Present, All the Justices.
1. Demonstrative evidence in the form of exhibits taken from victim should not have been admitted in evidence when Commonwealth failed to establish vital link in chain of possession from time exhibits were taken from victim until delivered to officer. Court cannot assume exhibits were properly handled. Opinion evidence of F.B.I. agents based on examination of these exhibits also not admissible. Identification of some of exhibits at trial by victim does not prove necessary chain of possession.
2. Error not harmless since in closing argument before jury Commonwealth's attorney stressed importance of "scientific evidence" on identification.
Error to a judgment of the Corporation Court of the City of Alexandria. Hon. Franklin P. Backus, judge presiding.
Harry P. Hart (Murphy & Hart, on brief), for plaintiff in error.
Vann H. Lefcoe, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
SNEAD
SNEAD, C.J., delivered the opinion of the court.
Larry Donell Robinson, defendant, was indicted in two counts for the rape and malicious wounding of a young woman in the City of Alexandria. A jury found Robinson guilty of both offenses, and fixed his punishment at thirty-five years in the State Penitentiary for rape and fifteen years for malicious wounding. The trial court sentenced Robinson in accordance with the jury verdict. We granted him a writ of error to that judgment.
Upon assurance of the Commonwealth's Attorney that the continuity *137 of possession of certain exhibits, including a pair of lady's panties, a blouse and some public hair taken from the victim, would be shown, the court permitted P. R. Bidez and M. S. Clark, FBI special agents, to express their opinions resulting from their examination of these exhibits. Bidez testified that the above mentioned exhibits were delivered to him by Douglas M. Thompson, a member of the Alexandria Police Department. The agents' examinations revealed that semen stains and blood stains were on the panties; that on the blouse were wool fibers similar to wool fibers in the sweater Robinson was wearing when arrested soon after the crimes were committed; and that the public hair taken from the victim had fifteen similar characteristics to a public hair removed from Robinson's undershorts. These exhibits were returned to Officer Thompson by Bidez after the examinations were made.
Officer Thompson, who was in charge of the Alexandria police property room, testified that he received from a nurse at the hospital the victim's panties and an envelope containing some public hair. He also stated that he received the victim's blouse from Sergeant Pendergraph, another officer of the Alexandria Police Department. These items, the testimony shows, were properly handled by Officer Thompson. Each exhibit was sealed in a bag and kept out of contact with other exhibits the police had obtained through their investigation.
The victim identified the blouse and the panties as garments she was wearing when attacked. She also testified that public hair was taken from her at the hospital and placed in an envelope. She identified an envelope as being like the one used.
However, the Commonwealth's evidence does not show what was done with these exhibits from the time they were taken from the victim to the time they were delivered to Officer Thompson. The nurse, who delivered the panties and public hair to Officer Thompson, did not testify. Nor is there any testimony as to how Sergeant Pendergraph came into possession of the blouse or what he did with the blouse before it was delivered to Officer Thompson.
In this appeal the critical question is whether the trial court erred in admitting into evidence the panties, blouse and public hair, and the opinion testimony of the FBI agents relative to these exhibits.
Counsel for Robinson asserts that the failure of the Commonwealth to call as a witness the unidentified nurse caused a break in the chain of possession of the panties and the public hair. Likewise, the failure of Sergeant Pendergraph to testify concerning the blouse *138 the victim was wearing when attacked caused a break in the chain of possession of it. Because an unbroken chain of possession was not established, it is argued, the exhibits and the opinions of the FBI agents concerning their analyses of them were not admissible.
In Rodgers Commonwealth, 197 Va. 527, 90 S.E.2d 257 (1955) the results of a blood analysis had been admitted into evidence without sufficient identification of the blood as that of the defendant. We said in that case "[such] an analysis is important evidence in a trial of this sort, and care must be exercised to establish the essential links in the chain of evidence relied on to identify the blood analyzed as being the blood taken". 197 Va. at 531, 90 S.E.2d at 259. The basic rule for admitting demonstrative evidence is that the burden is upon the party offering the evidence to show with reasonable certainty that there has been no alteration or substitution of it. But the burden is not absolute that "all possibility of tampering" be eliminated. People Riser, 47 Cal. 2d 566, 580-81, 305 P.2d 1, 10 (1957). However, "[the] requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received." (Italics supplied.)
In the case at bar the Commonwealth failed to establish a chain of possession of the panties, blouse and public hair. It is not reasonably certain from the testimony presented that these exhibits were in the same condition when analyzed as they were when taken from the victim. Furthermore, it was not shown that the public hair taken from the victim was the same public hair that was analyzed.
A vital link in the chain of possession of these exhibits was the treatment they received from the time they were taken from the victim until delivered to Officer Thompson. Yet, the Commonwealth failed to establish this vital link in the chain of possession. We cannot assume that these exhibits were properly handled. Without an unbroken chain of possession of the panties, blouse and public hair, they were not admissible as evidence insofar as they supplied a basis for the opinion testimony of the FBI agents, who had examined them. Thus, the opinions of the FBI agents were also not admissible.
It is true that the blouse and panties were identified at the trial by the victim as a part of the clothes she was wearing when attacked. The Commonwealth contends that they were properly admitted because the victim identified them. If they had been admitted only to establish what the victim was wearing when attacked, then we would agree with the Commonwealth's position. But the blouse and *139 the panties were also admitted to supply a basis for the opinion testimony of the FBI agents. The mere fact the blouse and the panties were identified did not prove the chain of possession necessary to validate the FBI analysis of them.
The error in admitting the exhibits as a basis for the testimony of the FBI agents was not harmless. In his closing argument before the jury, the Commonwealth's Attorney stressed the importance of this evidence. He referred to it as "scientific proof to back up that young lady's story that this man is the one."
For the reasons stated, the judgment appealed from is reversed and the case remanded for a new trial.
Reversed and remanded.
HARRISON
HARRISON, J., dissenting.
I dissent. The victim was attacked and beaten with an iron wrench, choked and raped. Defendant was arrested about thirty minutes after the rape, identified by the victim as her assailant, and thereafter identified by her at the preliminary hearing and at the trial. The identification was positive and unequivocal, and the evidence establishing his guilt is clear and overwhelming.
The only issue before this court concerns the chain of possession and therefore the integrity of certain exhibits introduced by the Commonwealth. I disagree with the conclusion of the majority that the trial court erred in permitting the introduction of the underpants and blouse worn by the victim at the time of the rape and of certain public hairs that were taken from her by a nurse.
The testimony is that the only contact that occurred, or could have occurred, between the victim and the defendant was at the time of the rape. The defendant was identified by the victim before she was taken to the hospital for treatment. At the time of this identification she was inside the apartment building and viewed the defendant who, with other individuals, was on the outside. Immediately after identification was made defendant was arrested and taken to the police station where his clothes were removed, packaged, sealed and delivered to the property custodian for the police department.
Analysis of defendant's sweater disclosed that it consisted of six different colors of woolen fibers. Fibers were found on the surface of the victim's blouse having the same six colors and microscopic appearance and qualities as those on the sweater. Analysis of the defendant's undershorts disclosed two rigid semen stains on the fly, *140 and one Caucasian public hair which had been forcibly removed from the skin. Analysis of the victim's underpants disclosed a rigid semen stain in the crotch. Also noted on the victim's underpants and blouse were blood stains.
The victim was taken to the emergency room of a local hospital where she remained for approximately two hours during which time a nurse removed from her a number of public hairs. Thereafter these hairs, as well as the Caucasian pubic hair found on the defendant's underpants, were analyzed and found similar based on about fifteen different microscopic characteristics.
Clearly it was proper for the court to have admitted in evidence the defendant's underpants and sweater. The continuity of their possession is unquestioned. It is equally clear that the introduction of the victim's blouse, on which was found the same type and kind of fibers as compose the defendant's sweater, was proper, since there was evidence that the only contact between the defendant's sweater and the victim's blouse occurred at the time of the rape.
The defendant was charged with both rape and felonious assault, and it was proper for the Commonwealth to show the extent of the injuries sustained by the victim. She said that the defendant beat her with a wrench and that she bled profusely. She positively identified the underpants and blouse which were offered in evidence as being the ones that she was wearing at the time, and both were bloodstained -- all consistent with and corroborative of her testimony as to the extent of the assault.
During the time the victim was in the emergency room of the hospital, the public hairs were withdrawn and placed in a white envelope all in her presence. At the trial she so testified, and was shown the envelope, which contained the hairs and asked:
"Q. I show you this envelope. Can you identify that?"
"A. That looks like -- yes."
"Q. The envelope that your public hairs --"
"A. Yes."
"Q. -- were placed in?"
"A. Yes."
It therefore appears that the victim did identify the envelope in which the hairs taken from her were placed. This envelope contains on its face the name and address of the hospital -- "The Alexandria Hospital, Alexandria, Virginia 22314". Written on the envelope is the *141 following: "[Victim's name] -- only public sample from above victim -- Turned over to Officer Thompson by R. N. Watts on 2/4/69 at 2:20 P.M." Police Officer Thompson testified that he received this envelope from the nurse at the hospital. Obviously he was referring to Nurse Watts. The handling of this exhibit thereafter is not questioned.
While the nurse who delivered the victim's underpants to Thompson for packaging and safekeeping should have been called as a witness, the failure to do so should not constitute reversible error under the facts and circumstances of this case. The wrapping in which this undergarment was packaged and sealed has this notation thereon: "2/4/69 at 1:30 P.M. undergarment from [the victim] turned over to Officer Thompson by Mrs. Watts, R.N." The conclusion is inescapable that the Mrs. Watts who delivered the undergarment and public hairs to Officer Thompson is a registered nurse and is one and the same person as the nurse who was on duty in the emergency room in the Alexandria hospital to which the victim was taken and who is alluded to in the testimony by the officers.
The possibility is extremely remote that there could have been a tampering with the exhibits or any transfer of particles, fibers, semen or blood between the victim or her clothing, and the defendant or his clothing, subsequent to the rape.
The rule of law which requires continuity in the chain of possession of exhibits must be given a reasonable construction, and as we have said, the burden is not absolute that all possibility of tampering be eliminated.
The undergarments of the victim and the defendant were admissible to prove that there had been a consummated act of intercourse as claimed by the prosecutrix. The presence of semen stains on both undergarments was corroborative evidence of her statements. The public hair found on the defendant's undershorts came from a Caucasian. Again this was corroborative of the victim's testimony that she was raped by a non-Caucasian, and admissible for that purpose.
The cases relied on by the majority do not control here for they concern the results of fingerprinting or of a blood analysis. Neither fingerprints nor blood can be identified except by experts and through analysis. With the exception of the public hairs, all of the physical evidence in this case is susceptible of positive identification by persons other than experts and has been so identified.
The possibility exists in this case, as it does in all cases, that exhibits may be tampered with by those in whose care they may be *142 entrusted pending trial. However, there is not the slightest evidence or intimation in the record before us that any exhibit has been tampered with, or handled other than in a routine and proper manner.
It is true that Officer Pendergraph, who delivered the victim's blouse and slacks to Officer Thompson, did not testify. However, Thompson testified that when he received them from Pendergraph they were then in a paper bag (introduced as an exhibit) and that it (the bag) was immediately sealed, initialed and dated. He further testified that at no time during which these exhibits were in his possession did they come in contact with the defendant's sweater or underpants.
While the "[burden] is on the party relying on expert testimony to prove identity of object upon which such testimony is based, but practicalities of proof do not require such party to negative all possibility of substitution or tampering and he need only establish that it is reasonably certain that substitution, alteration, or tampering did not occur. Eisentrager State"
(Nev) 378 P2d 526." Annot., 21 A.L.R. 2d 451 (1970)."
The police investigation in this case was expeditious and thorough. The record reflects that little more than two hours elapsed between the commission of the crime, the identification of the perpetrator, the arrest of the defendant, the hospitalization of the victim and the processing, numbering and sealing of physical evidence. All clothing taken from either the defendant or the victim was packaged, sealed, numbered and initialed, and the notations thereon show that it was all done on February 4, 1969, the date of the offense. A number of police cars and officers responded when the victim reported the rape. Some accompanied the defendant to jail and some the ambulance that took the victim to the hospital. It is clear a determination was made that, for the protection of both the Commonwealth and the accused, the clothing of the defendant and the victim should be removed, examined and analyzed. This was done routinely. The clothing of defendant was removed at the city jail. The clothing of the victim and pubic hairs were obviously removed at the hospital. The officers testified that there was no contact between the two.
As was pointed out in Annot., 21 A.L.R. 2d 1219 (1952):
{"The basic question is whether a thing (1) analyzed or examined by an expert in his laboratory or (2) produced in court as a basis *143 for his demonstrations before the jury can be shown to have been taken from a particular human body. Proof of this identity involves showing in the first class of cases that (a) the thing was taken (b) from the particular body from which it was supposed to be taken, and that thereafter it was properly (c) kept and, if necessary, (d) transported and (e) delivered to the expert who made the analysis or examination; and in the second class that like care was exercised until the thing was produced in court."
The evidence in the instant case meets the foregoing standard, establishes with reasonable certainty that there was no substitution, alteration or tampering with the exhibits, and was properly admitted for consideration by the jury.
I would affirm the conviction of the defendant. I'ANSON, J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337878/ | 212 Va. 215 (1971)
JOHN S. HANCOCK
v.
JAMES D. COX, SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY (OTIS L. BROWN, DIRECTOR OF THE DEPARTMENT OF WELFARE AND INSTITUTIONS, SUBSTITUTED RESPONDENT).
Record No. 7704.
Supreme Court of Virginia.
September 1, 1971.
Present, All the Justices.
Statutory scheme, recently repealed in part and amended prospectively, which provided for deprivation of liberty or restriction on freedom of movement lacked definition of "alcoholic" and therefore lacked constitutional requirements of definiteness and certainty. Original jurisdiction writ of habeas corpus will issue to require release.
Original Petition for Writ of Habeas Corpus.
Matthew N. Ott, Jr. (Mays, Valentine, Davenport & Moore, on brief), for petitioner.
C. Tabor Cronk, Assistant Attorney General, for respondent.
HARRISON
HARRISON, J., delivered the opinion of the court.
Invoking the original jurisdiction of this court, the petitioner, John S. Hancock, seeks a writ of habeas corpus directing his release from custody pursuant to an order of commitment entered on November 9, 1970 by the County Court of Wythe County. [1]
While petitioner assigns several grounds as a basis for his petition, we need only consider his contention that Code | 18.1-200.1 is void for vagueness and uncertainty.
Petitioner was arrested on November 6, 1970 in Wytheville and charged with being drunk in public. On the arrest warrant is found *216 a notation "6th offense in 1970". On November 9, 1970 the County Court of Wythe found petitioner not guilty of the offense by virtue of the fact that "petitioner is an alcoholic". At the same time the court ordered Hancock committed to the control and supervision of the Director of the Department of Welfare and Institutions for the indeterminate period of not less than three months nor more than three years.
Petitioner was admitted to Bland Correctional Farm where he remained as an inmate from November 11, 1970 to March 11, 1971, at which time he was conditionally released until November 9, 1973 under the provisions of Code | 18.1-202. Among the numerous conditions of the release petitioner is prohibited from leaving or remaining away from the city or town wherein he resides without the permission of his supervising officer. He is required to follow the advice of such officer regarding his recreational and social activities and report promptly as required and in the manner designated by this officer.
Code | 18.1-200.1 provided:
{"Any person arrested for an offense in which proof of drunkenness or being under the influence of alcohol is a necessary element of the crime and is discharged, dismissed or acquitted of such charge by reason of being an alcoholic, shall be subject to commitment to the control and supervision of the Director of the Department of Welfare and Institutions in the same manner and for the same purposes as prescribed in | 18.1-200, or to the Department of Mental Hygiene and Hospitals, or to a facility under the control of the State Health Department for treatment of alcoholics, in the discretion of the court."
At the time of the proceeding against petitioner Code | 18.1-200 provided, in part, that whenever any county court, in the exercise of sound discretion, shall determine that it is necessary for the protection of the public health or safety, or for the promotion of the public welfare, through the rehabilitation of any person, it may in lieu of a sentence or fine commit such person to the control and supervision of the Director of the Department of Welfare and Institutions for rehabilitation, for an indeterminate period of not less than three months nor more than three years.
Code | 18.1-202 provides, in part, that the Director of Welfare and Institutions may at any time release such person when satisfied *217 that such release is conducive to the welfare of such person and will not be detrimental to the public health or public welfare, and may prescribe reasonable terms or conditions upon which such release is granted. This section also authorizes the county court to revoke the order of release and direct the return of the released person to the Director, or on its own motion or on application of the Director, recommit such person to an institution, or make such other disposition as may be provided by law. The total period of probation, confinement, supervision and reconfinement shall not exceed three years.
Code | 18.1-200.1 was recently repealed, and Code || 18.1-200 and 18.1-201 were amended by an Act of the General Assembly, effective July 1, 1971. See Acts of Assembly, ch. 189 (Special Session 1971). However, this Act has prospective application only, and does not operate to release those persons currently in custody or committed prior to the date of repeal, and further does not operate to relieve those persons previously committed and conditionally released, such as the petitioner, from the terms of their conditional release.
While the motive of the General Assembly in its enactment of Code | 18.1-200.1 is obviously an attempt to preclude an alcoholic's acts from being stamped as criminal, and to provide for his rehabilitation, the fact remains that Hancock, and others proceeded against under this statute, face a potential in-custody deprivation of their liberty for a period of three years, or a restriction of the freedom of their movements and conduct for a like period.
The rationale for discharging, dismissing or acquitting a person "by reason of being an alcoholic" is manifestly that such a person is regarded as medically sick. However, the statute provides no definition, basis or standard to guide the court in determining how, when or why an individual is or is not to be adjudged an alcoholic. The vice of the statute is demonstrated by the notation on the criminal warrant which charged Hancock with being drunk in public. It is reasonable to assume therefrom that this was the sixth time that petitioner had been arrested and charged with public drunkenness during 1970. The county court evidently concluded therefrom, and possibly from other evidence, that Hancock was an alcoholic or an inebriate or was habitually addicted to the excessive use of intoxicating liquors, and that rehabilitative treatment was indicated. Under the statute in question the same conclusion could have been reached by the same judge, or another judge in another jurisdiction, in a case *218 which involved a lesser number of similar offenses committed during 1970, or upon other evidence -- all without any guiding standard.
Unlike the statute under review, the Alcoholic Beverage Control Act defines an "intoxicated person" as "[any] person who has drunk enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation, shall be deemed to be intoxicated". Code | 4-2(14). And in Title 37.1 of the Code of Virginia, which deals with institutions for the mentally ill and mental health generally, Code | 37.1-1(9) defines an "inebriate" to mean "a person who through use of alcoholic liquors has become dangerous to the public or himself or unable to care for himself or his property or his family".
The fact that a proceeding under Code | 18.1-200 may be termed a civil procedure for rehabilitative purposes, as opposed to criminal, is of no consequence here for a commitment under that section can involve confinement and a restriction of the liberties of the persons committed.
The statute under attack, Code | 18.1-200.1, lacks a definition of when a person is an alcoholic and it is unconstitutionally vague, uncertain and indefinite and is therefore void. It is a well settled principle of constitutional law that a statute must be definite to be valid and that if vague it denies due process of law. In Peacock Commonwealth, 200 Va. 464, 106 S.E.2d 659 (1959), we held a statute fatally defective in that it did not measure up to the constitutional requirements of definiteness and certainty. There we said:
{"We have recently stated the principles which govern the determination of the validity of a criminal statute in Caldwell Commonwealth, 198 Va. 454, 94 S.E.2d 537. There we said:"
{"'It is elementary that an act creating a statutory offense, to be valid, must specify with reasonable certainty and definiteness the conduct which is commanded or prohibited, that is, what must be done or avoided, so that a person of ordinary intelligence may know what is thereby required of him. 14 Am. Jur., Criminal Law, | 19, pp. 773, 774; 22 C.J.S., Criminal Law, | 24-a, pp. 70-72. The enactment should define the acts to be done or not to be done which constitute such offense with such certainty that a person may determine whether or not he has violated the law at the time he does or fails to do the act, which is charged to be a violation thereof. State Lantz, 90 W.Va. 738, 111 S.E. 766, 26 A.L.R. 894. Unless an act creating a statutory offense satisfies this *219 requirement of certainty and definiteness it violates the Due Process Clauses of the Fourteenth Amendment and of the Virginia Constitution. Article 1, | 8,' 198 Va. p. 458."
{"Again, in Mundy Motor Lines Du Pont, 199 Va. 933, 103 S.E.2d 245, in determining the validity of a statute fixing rates of contract carriers, we quoted, with approval, the following statements:"
{"'"If the terms in which it (a statute) is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inoperative."' Drake Drake, 15 N.C. 110. 199 Va. at pages 937 and 938."
{"We then said:"
{"'In 50 Am. Jur., Statutes, | 472, p. 484, the principle is stated thus: "In the enactment of statutes reasonable precision is required. Indeed, one of the prime requisites of any statute is certainty, and legislative enactments may be declared by the courts to be inoperative and void for uncertainty in the meaning thereof. This power may be exercised where the statute is so incomplete, or so irreconcilably conflicting, or so vague or indefinite, that the statute cannot be executed and the court is unable, by the application of known and accepted rules of construction, to determine what the legislature intended, with any reasonable degree of certainty.""
{"'Like statements are found in 82 C.J.S., Statutes, | 76, p. 133; 17 M.J., Statutes, | 27, p. 269.' 199 Va. at page 938."
{"The above principles fully apply here." 200 Va. at 468-69, 106 S.E.2d at 662-63.
Accordingly, we will issue a writ of habeas corpus directed to Otis L. Brown, Director of the Department of Welfare and Institutions, directing that John S. Hancock be released from custody, if in custody, and that he be further released from all conditions imposed on him by the Director in his conditional release of petitioner dated March 11, 1971.
Writ awarded.
NOTES
[1] In Hill Royster, Record No. 7368, we held that habeas corpus lies in a case similar to the case under review. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337906/ | 183 S.E.2d 644 (1971)
279 N.C. 442
STATE of North Carolina
v.
Joseph WADDELL.
No. 12.
Supreme Court of North Carolina.
October 13, 1971.
*645 Robert Morgan, Atty. Gen. by Myron C. Banks, Asst. Atty. Gen., for the State.
Jerry C. Wilson, High Point, for defendant appellant.
*646 HIGGINS, Justice.
The defendant by exceptive assignments, presents two questions for appellate review: (1) Did the court err in refusing to allow the motion to quash the indictment because of a variance between the charge and the proof? (2) Did the court err in denying the motion for a mistrial because of an unknown party's statement to the prospective juror (Hinson) before his acceptance on the trial panel?
The indictment was drawn under G.S. § 14-87 which makes it a felony for any person to take or attempt to take personal property from another, or from any place of business by the use or threatened use of a firearm or other dangerous weapon whereby the life of a person is endangered or threatened. State v. Parker, 262 N.C. 679, 138 S.E.2d 496.
The defendant objected to the indictment and moved to quash on the ground of variance between the allegation in the indictment which alleged that Brown was the owner and in charge of the Mart from which the property was forcibly taken and the evidence which disclosed that Don Kennedy owned the Mart. The indictment clearly alleged the defendant by the threatened use of a pistol "* * * (W)hereby the life of Jesse L. Brown was endangered and threatened * * * by violence did unlawfully and feloniously take and carry away personal property, to-wit, $261.21 * * * from the place of business known as 7 Day Mart where * * * Jesse L. Brown was in attendance, said money being the property of Jesse L. Brown, t/d/b/a (trading and doing business as) 7 Day Mart." The defendant cites as his authority for the motion the case of State v. Mull, 224 N.C. 574, 31 S.E.2d 764.
A motion to quash an indictment is in order when the purpose is to challenge its sufficiency to charge a criminal offense. A motion to dismiss is in order when the prosecution fails to offer sufficient evidence the defendant committed the offense charged. A variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged. However, we have treated the defendant's motion made in this case as a motion to dismiss for lack of evidence to go to the jury on the charge of armed robbery. State v. Barnes, 253 N.C. 711, 117 S.E.2d 849; State v. Cooper, 275 N.C. 283, 167 S.E.2d 266; State v. Vaughan et al., 268 N.C. 105, 150 S.E.2d 31.
Actually the Mull case on which defendant relies is good authority upon which to sustain a bill of indictment. "The gist of the offense, as thus alleged, is the accomplishment of the robbery by the use or threatened use of firearms. State v. Keller, 214 N.C. 447, 199 S.E. 620. Force or intimidation occasioned by the use or threatened use of firearms, is the main element of the offense. G.S. § 14-87; State v. Sawyer, ante, 224 N.C. 61, 29 S.E.2d 34; State v. Burke, 73 N.C. 83. `In such case it is not necessary or material to describe accurately or prove the particular identity or value of the property taken, further than to show it was the property of the person assaulted or in his care, and had a value.' People v. Nolan, 250 Ill. 351, 95 N.E. 140, 34 L.R.A.,N.S., 301, Ann.Cas. 1912B, 401; 46 Am.Jur. 154."
When tested by the rules approved in the Parker and Mull cases, and others therein cited, the indictment in this case contained all essential averments required by the statute. See also State v. Lynch, 266 N.C. 584, 146 S.E.2d 677. The motion to quash the indictment was properly overruled.
The trial judge did not commit error in refusing to order a mistrial on defendant's motion. Mr. Hinson and another were among those summoned for jury duty. They were in the courthouse ready to be called. Three men approached. One asked, "Are you on the jury?" and on receiving an affirmative answer the speaker said, "Don't find any Black Panthers guilty." Mr. Hinson did not know either *647 of the men and did not know any Black Panthers. However, after he was accepted on the trial jury he told the bailiff of the occurrence in the courthouse. The bailiff evidently reported the incident to the trial judge. Before the jury was selected, each juror was interrogated, including Mr. Hinson who stated he knew of no reason why he could not give the defendant a fair and impartial trial.
After the verdict, however, the court notified counsel and the post-verdict inquiry resulted. The showing was insufficient upon which to order a new trial. The general rule in this jurisdiction is succinctly stated in a number of our cases. "`Generally speaking neither the common law nor statutes contemplate as ground for a new trial a conversation between a juror and a third person unless it is of such a character as is calculated to impress the case upon the mind of the juror in a different aspect than (sic) was presented by the evidence in the courtroom, or is of such a nature as is calculated to result in harm to a party on trial. The matter is one resting largely within the discretion of the trial judge.' (Citing authorities.) Denial of such motion is equivalent to a finding by the trial judge that prejudicial misconduct has not been shown." State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190. See also State v. Shedd, 274 N.C. 95, 161 S.E.2d 477; G.S. § 9-14; Strong's N.C. Index 2d, Criminal Law, Vol. 3, § 130, New Trial for Misconduct of or Affecting Jury, p. 52.
It is entirely proper for the trial judge to conduct an open inquiry into an attempt to influence a prospective juror in any case. The inquiry in this case, however, did not disclose whether the defendant was or was not a Black Panther, or whether he was or was not in sympathy with them. There is no evidence from which the court could conclude the incident before the jury was selected had any bearing on the verdict or in Mr. Hinson's participation in it. The cases cited, and others of like import, hold to the contrary. The cases relied on by the defendant do not support his contention. He cites as authority for the motion these cases: State v. Chamberlain, 263 N.C. 406, 139 S.E.2d 620; State v. Grayson, 239 N.C. 453, 80 S.E.2d 387; State v. Manning, 251 N.C. 1, 110 S.E.2d 474; State v. Carter, 233 N.C. 581, 65 S.E.2d 9; State v. Wagstaff, 235 N.C. 69, 68 S.E.2d 858. These cases do not offer support for a motion for a mistrial. Neither the cases cited, nor any others with which we are familiar appear to justify or authorize a mistrial on a showing so flimsy and nebulous as the occurrence which is the basis for Assignment of Error No. 2.
In the trial and judgment we find
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337898/ | 183 S.E.2d 697 (1971)
STATE ex rel. Preston B. GOODEN
v.
Robert L. BONAR, Superintendent of the Department of Public Safety of the State of West Virginia.
No. 13103.
Supreme Court of Appeals of West Virginia.
Submitted September 1, 1971.
Decided October 5, 1971.
*698 Maruka & Sansalone, Ross Maruka, Fairmont, Franklin D. Cleckley, Morgantown, for relator.
Chauncey H. Browning, Jr., Atty. Gen., Thomas P. O'Brien, Jr., Asst. Atty. Gen., Charleston, for respondent.
HAYMOND, Judge.
In this original mandamus proceeding, instituted in this Court June 28, 1971, the petitioner, Preston B. Gooden, seeks a writ to require the defendant, Robert L. Bonar, Superintendent of the Department of Public Safety of West Virginia, herein sometimes referred to as the Department of Public Safety or the department, to reinstate the petitioner to his position of a trooper in the Department of Public Safety and to order the payment of his salary and the restoration of other benefits to which he alleges he is entitled from the date of his dismissal by the defendant on April 24, 1971.
Upon the petition and its exhibits, this Court issued a rule returnable September 1, 1971. Upon the return day of the rule this proceeding was submitted for decision upon the petition and its exhibits, the answer of the defendant and its exhibits, and the written briefs and the oral arguments of the attorneys for the respective parties.
The material facts are not disputed and the question for determination is a question of law.
On and prior to April 24, 1971, the petitioner was a member in good standing of the Department of Public Safety with the rank of trooper and was assigned to the Morgantown, West Virginia detachment of Company A. On April 23, 1971, while off duty and in civilian clothes, the petitioner made a speech before a civic group in Morgantown in which he criticized the existence of political interference which he charged stifled the general activities within the department. On the following day, April 24, he was orally advised that he had been dismissed as a member of the department, and by Special Order 162 of that date, he was informed by the defendant that the petitioner had been discharged from the department for the good of the service pursuant to Chapter 15, Article 2, Section 19, Code, 1931, as amended, and the general orders of the department.
No notice of charges, pending dismissal, or opportunity to be heard was given the petitioner before his dismissal.
On May 4, 1971, he filed with the Board of Commissioners, herein sometimes referred to as the board, his petition for appeal from the dismissal order of the defendant, as provided by Chapter 15, Article 2, Sections 20 and 21, Code, 1931.
Following requests by attorneys for the petitioner, the acting superintendent of the *699 department, during the absence of the defendant due to illness, by letter of June 30, 1971, addressed to two members of the Board of Commissioners, filed these five charges against the petitioner: (1) Prior to April 24, 1971 he made certain unsubstantiated charges against the Department of Public Safety, its members and its officers; (2) By his conduct he has lessened public confidence and trust in the department and adversely affected the morale of its members; (3) He is guilty of insubordination; (4) He has repeatedly violated general order No. 14 of the department; and (5) For causes necessary for the good of the service. A hearing of the appeal of the petitioner was set for May 25 but the hearing was cancelled by the board. By letter of July 3, the attorneys for the petitioner requested that the five charges be made more specific which the department refused to do by letter of July 7, 1971 which asserted that the charges were sufficient. Due to the illness of the defendant, a hearing set for July 14 was continued at the instance of the acting superintendent. On August 20, 1971, according to the briefs of counsel, the board notified the parties that a hearing would be held on September 15, 1971.
In support of his petition for a writ of mandamus the petitioner, in substance, asserts (1) that the defendant is without authority to discharge the petitioner as a member of the Department of Public Safety and (2) that the action of the defendant in discharging the petitioner without a prior hearing violates the due process of law provisions of the Fourteenth Amendment of the Constitution of the United States and of Article III, Section 10, of the Constitution of West Virginia, and is contrary to Section 19, Article 2, Chapter 15, Code, 1931, as amended.
On the contrary the defendant contends that the remedy provided by Sections 20 and 21, Article 2, Chapter 15, Code, 1931, fully satisfies the requirements of due process of law and that the writ sought by the petitioner should be denied.
Chapter 15, Article 2, Code, 1931, as amended, relates to the Department of Public Safety the members of which are commonly known as the State Police. Section 19 of the statute, to the extent here pertinent, provides that "The superintendent may suspend or remove from the service any member of the department of public safety for any of the following causes, to-wit: Refusing to obey the orders of his superior officer, neglect of duty, drunkenness, immorality, inefficiency, abuse of his authority, interference with the lawful right of any person, participation in political primaries, conventions or elections, or any other cause that may in the opinion of the superintendent be necessary for the good of the service."
Sections 20 and 21 of Article 2 of that chapter deal with the creation of a Board of Commissioners to hear originally and to review all cases of appeal from the findings of the superintendent on charges filed against any member of the department of public safety and all cases of the dismissal or suspension of any member of the department by the superintendent and specify the procedure to be followed in cases of dismissal or suspension of any member of the department.
Section 20 provides for the appointment by the Governor of two persons, residents of this State, as members of the Board of Commissioners. The section contains, among others, these provisions: "The two persons so appointed shall constitute the board of commissioners whose duty it shall be to review all cases of appeal from the findings of the superintendent on charges filed against any such member of the department of public safety, and in all cases of dismissal or suspension of any member of the department of public safety by the superintendent as hereinbefore provided. * * *. When charges are filed against any member of the department of public safety before the board of commissioners, a copy of such charges shall be served upon the accused, who shall within a reasonable time, to be fixed by the board, be *700 required to answer the same, and the board shall give notice in writing to the accused of the time and place when such charges will be heard and considered by it."
Section 21 provides that "In all cases before a trial shall be had the accused shall be served with a copy of the charges and given a reasonable opportunity to defend himself against such charges, and if on the hearing of such charges the members of the board shall be equally divided, then the accused shall be suspended until a further trial is had with a third member presiding as hereinafter provided for. If upon any trial two members of the board shall be of opinion that the accused is guilty of the charges preferred, then he shall be discharged from the service without further trial." The section further provides that if at any trial the board should be equally divided it shall fix a day for a final hearing at which time the Governor shall act as the third member of the board and preside at the hearing, that "if the board should again be equally divided in their finding, the governor shall cast the deciding vote on all hearings on charges preferred against any officer or member of the department of public safety.", and that upon such hearing "It shall require the votes of at least two of the members of the board to suspend any member on charges preferred and the votes of three of the members of the board to dismiss the accused."
The foregoing provisions of Section 19 which have been in effect since 1919, expressly authorize the superintendent to suspend or remove from the service any member of the Department of Public Safety for any of the causes specified in the statute which include any cause that may in the opinion of the superintendent be necessary for the good of the service. It is evident that in authorizing the superintendent summarily to suspend or remove any member of the department for any of the enumerated causes without notice or a prior hearing, the Legislature believed that such authority was necessary for the effective administration of the department and undertook to safeguard the rights of the suspended or removed member by providing a subsequent hearing after notice and an opportunity to be heard by the Board of Commissioners and requiring a vote of two members of the board at a hearing at which two members act, and a vote of three members at a hearing at which the Governor and the two members constitute and act as a three-member board to dismiss a member of the department from the service. Under the provisions of the applicable sections of the statute, when considered together, the summary suspension or removal of a member of the department by the superintendent is conditioned upon and subject to the action of the board in discharging or refusing to discharge the accused from service as a member of the department as provided in Section 21 of the statute if a hearing is held by the board.
Though the many cases in the various jurisdictions involving the dismissal or removal of a public officer or a public employee are conflicting upon the question of whether due process requires a preliminary notice and hearing before dismissal or removal, it is the opinion of this Court and it so holds that the hearing provided by Sections 20 and 21, Article 2, Chapter 15, Code, 1931, for a member of the department who has been summarily suspended or dismissed by the superintendent under the provisions of Section 19 satisfies the requirement of due process of law and that the removal by the superintendent is valid and is not violative of due process of law. Nelson v. County of Los Angeles, 362 U.S. 1, 80 S. Ct. 527, 4 L. Ed. 2d 494.
Though no appeal is provided by Sections 20 or 21 from the ruling of the Board of Commissioners, an appeal lies from the final order of the Board of Commissioners discharging or refusing to discharge a member of the Department of Public Safety from the service to either the Circuit Court of Kanawha County or the circuit court of the county in which the petitioner resides or does business and from the judgment of the circuit court to *701 the Supreme Court of Appeals of this State as provided by Articles 5 and 6, Chapter 29A, Code, 1931, as amended.
A controversy involving the discharge of a member of the Department of Public Safety by its superintendent when heard originally or on appeal by the Board of Commissioners under Sections 20 and 21, Article 2, Chapter 15, Code, 1931, is a contested case within the meaning of Chapter 29A, Code, 1931, as amended, and does not include regulations relating solely to the internal management of the department such as was involved in State ex rel. Burchett v. Taylor, 150 W.Va. 702, 149 S.E.2d 234, in which this Court held that a member of the Department of Public Safety who, as a disciplinary measure, was by the superintendent of the department demoted from his rank of sergeant to the rank of trooper and transferred to a different part of the State, was not entitled to an appeal to the Circuit Court of Kanawha County. Accordingly that case does not apply to, or control, and is distinguishable from, the decision in this proceeding. But even if the petitioner had no right of appeal from the ruling of the Board of Commissioners, the remedy provided by Sections 20 and 21 satisfies the requirement of due process of law. The text in 16 Am. Jur.2d, Constitutional Law, Section 584, contains this statement which is supported by decisions in numerous jurisdictions: "The right of appeal or review is not essential to due process, provided due process has already been accorded in the tribunal of first instance."
It is settled by the decisions of this Court that due process of law may be afforded administratively as well as judicially and that lawful administrative process is due process equally with lawful judicial process. Point 2, syllabus, State ex rel. Burchett v. Taylor, 150 W.Va. 702, 149 S.E.2d 234; Point 3, syllabus, Nulter v. State Road Commission of West Virginia, 119 W.Va. 312, 193 S.E. 549, 194 S.E. 270.
In Smith v. Siders, W.Va., 183 S.E.2d 433, point 1 of the syllabus contains this quotation of point 2 of the syllabus in State ex rel. Ellis v. Kelly, 145 W.Va. 70, 112 S.E.2d 641: "Due process of law, within the meaning of the State and Federal constitutional provisions, extends to actions of administrative officers and tribunals, as well as to the judicial branches of the governments."
In State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283, 43 L.R.A. 727, this Court held in point 3 of the syllabus that "Due process of law does not always require judicial hearing. It does in matters of purely judicial nature, but not in matters of taxation or matters purely administrative." In the opinion in that case this Court said "If there is anything settled by the United States Supreme Court, it is that the requirement of due process of law does not always require judicial procedure." The opinion also contains this quotation from Davidson v. New Orleans, 96 U.S. 97, 24 L. Ed. 616: "This court has heretofore decided that due process of law does not in all cases require a resort to a court of justice to assert the rights of the public against the individual, or to impose burdens on his property for the public use. Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272 [15 L. Ed. 372], and McMillen v. Anderson, 95 U.S. 37 [23 L. Ed. 335]."
Though a hearing has been set upon the appeal of the petitioner to the Board of Commissioners, a final determination of the appeal has not as yet been made by the board. In consequence the petitioner, who has there sought relief, has not exhausted the administrative remedy afforded him by the foregoing statute. The well established general rule is that where an administrative remedy is provided by statute or by rules and regulations having the force and effect of law, relief must be sought from the administrative body and such remedy must be exhausted before the courts will act. Point 1, syllabus, *702 Daurelle v. Traders Federal Savings and Loan Association of Parkersburg, 143 W.Va. 674, 104 S.E.2d 320; The Bank of Wheeling v. Morris Plan Bank & Trust Co., W.Va., 183 S.E.2d 692; State ex rel. Burchett v. Taylor, 150 W.Va. 702, 149 S.E.2d 234; Fahey v. Mallonee, 332 U.S. 245, 67 S. Ct. 1552, 91 L. Ed. 2030; Aircraft and Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67 S. Ct. 1493, 91 L. Ed. 1796; First National Bank of Greeley v. Board of County Commissioners of the County of Weld, 264 U.S. 450, 44 S. Ct. 385, 68 L. Ed. 784; Red River Broadcasting Co., Inc., v. Federal Communication Commission, 69 App.D.C. 1, 98 F.2d 282 (D.C.Cir.), certiorari denied, 305 U.S. 625, 59 S. Ct. 86, 83 L. Ed. 400; Home Loan Bank Board v. Mallonee, 196 F.2d 336 (9th Cir.); People of State of California v. Coast Federal Savings and Loan Association, 98 F. Supp. 311 (S.D.Cal.); Woodard v. Broadway Federal Savings and Loan Association of Los Angeles, 111 Cal. App. 2d 218, 244 P.2d 467; Abelleira v. District Court of Appeal, Third District, 17 Cal. 2d 280, 109 P.2d 942, 132 A.L.R. 715; 73 C.J.S. Public Administrative Bodies and Procedure, Section 41; 42 Am.Jur., Public Administrative Law, Section 197; 2 Am.Jur.2d, Administrative Law, Section 595.
Mandamus is available only when all administrative remedies have been exhausted and when there is no other available adequate remedy. Sleeth v. Dairy Products Company of Uniontown, 228 F.2d 165 (4th Cir.), certiorari denied, 351 U.S. 966, 76 S. Ct. 1031, 100 L. Ed. 1485; 1A M. J., Administrative Law, Section 23; Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S. Ct. 215, 70 L. Ed. 494. In the Goldsmith case in which the plaintiff sought a writ of mandamus in the Supreme Court of the District of Columbia to compel the United States Board of Tax Appeals to enroll him as an attorney with the right to practice before it, the Court held that a person desiring to practice before the Board of Tax Appeals is not entitled to a writ of mandamus to compel the Board to enroll him as an attorney until after he has sought and been denied a hearing before the Board as to his right to admission to practice. In the opinion by Chief Justice Taft, the Court said that the petitioner was not entitled to relief in mandamus and that "Until he had sought a hearing from the board, and had been denied it, he could not appeal to the courts for any remedy and certainly not for mandamus to compel enrollment."
As the doctrine of exhaustion of administrative remedies requires that, where a remedy before an administrative agency is provided, relief must be sought by exhausting this remedy before the courts will act, the petitioner is not entitled to judicial relief in this proceeding. By invoking his administrative remedy which the petitioner has done, he may obtain a reversal of his discharge by the superintendent in which event the administrative remedy would be adequate and, upon its finality, he would be entitled to reinstatement with pay, which if refused, could be enforced in a proper judicial proceeding. If, however, the discharge of the petitioner by the defendant should be finally upheld the reinstatement of the petitioner with pay, as prayed for in his petition in this proceeding, would result in difficult and unnecessary complications with respect to any recovery of such salary by the department and would be an additional reason for refusal of relief in a mandamus proceeding.
This Court has held in many cases that he who seeks relief by mandamus must show a clear legal right to the remedy. State ex rel. Riddle v. Department of Highways, W.Va., 179 S.E.2d 10; State ex rel. Nelson v. Ritchie, W.Va., 177 S.E.2d 791, and the many cases cited in the opinion in the Nelson case. The petitioner has not satisfied that requirement in this proceeding.
*703 The writ of mandamus, as prayed for in the petition, is denied.
Writ denied.
CARRIGAN, J., deeming himself disqualified did not participate in the consideration or decision of this proceeding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338454/ | 214 Ga. 519 (1958)
105 S.E.2d 730
ALADDIN, INC.,
v.
KRASNOFF et al.
20209.
Supreme Court of Georgia.
Argued September 10, 1958.
Decided October 10, 1958.
Rehearing Denied November 7, 1958.
Bird & Howell, Robert L. Foreman, Jr., for plaintiff in error.
Samuel L. Eplan, contra.
MOBLEY, Justice.
The exception here is to a judgment sustaining a general demurrer to a petition, which sought to enjoin Robert Merrill Krasnoff from violating the restrictive covenants of an employment contract, and Bernard Cristal from aiding and abetting such violation. The contract provided that the employee would not, for a period of two years following the term of his employment with the petitioners, ". . . engage in or take part in any manner in the ownership or operation of a janitor supply or sanitary supply business or of a business selling or repairing steam cleaners, hydranlie jacks or similar equipment, such restriction to apply in the territory assigned to second party in Paragraph 3 of this agreement," to wit: " . . . accounts in Greater Atlanta, Georgia, as assigned to second party from time to time"; and would not, ". . . during the continuance of this agreement or after its termination, disclose to any person, firm or corporation any portion or all of the names and/or addresses of present and past customers and potential customers of first party [plaintiff] without the prior written consent of first party." Held:
*520 1. While contracts in general restraint of trade are void (Code § 20-504), a contract concerning a lawful and useful business in partial restraint of trade and reasonably limited as to time and place is not void. Black v. Horowitz, 203 Ga. 294 (1) (46 S.E.2d 346), and cases cited. Unquestionably, the restraint as to entering a competing business for two years is, as to time, reasonable (Shirk v. Loftis Bros. & Co., 148 Ga. 500, 97 S.E. 66; Nelson v. Woods, 205 Ga. 295, 53 S.E.2d 227; Northeast Ga. Artificial Breeders Assn. v. Brown, 209 Ga. 547, 74 S.E.2d 660; Breed v. National Credit Assn., 211 Ga. 629, 88 S.E.2d 15); and the limitation as to area, ". . . accounts in Greater Atlanta. . . assigned to . . . party . . . ," is also reasonable, and the restriction is valid and enforceable. Black v. Horowitz, 203 Ga. 294 (2), supra. See also Krishbaum v. Jones, 206 Ga. 192 (56 S.E.2d 484), where this court held valid an employment agreement which, without stating an express territorial limitation, restricted the employee for a period of one year from soliciting the employer's customers whom the employee had served during his employment.
2. The second restrictive covenant, regarding the disclosure of the names and addresses of past, present, and potential customers of the plaintiff, is too broad in scope to be considered as a mere reasonable and partial restraint of trade. It is unlimited as to either time or territory, and seeks to include all of the employer's past, present, and potential customers. Conceivably, this would include all of the plaintiff's customers from the time of its incorporation to that time in the unforeseeable future when it shall cease to do business. This covenant is an attempt at general restraint of trade and, as such, is unenforceable.
3. Where, as here, the two restrictive covenants are divisible, the first, which is valid, may be enforced even though the second is invalid. Hood v. Legg, 160 Ga. 620 (4) (128 S.E. 891); Kessler v. Puritan Chemical Co., 213 Ga. 845 (102 S.E.2d 495). The petition stated a cause of action as to the first covenant, that the employee would not enter a described type of business for a two-year period within a defined territory; and, this being true, it also stated a cause of action against the defendant Bernard Cristal, who, it was alleged, had knowledge of such restrictive covenants and was aiding and abetting the defendant Krasnoff in such violation. Luke v. *521 DuPree, 158 Ga. 590 (124 S.E. 13); National Linen Service Corp. v. Clower, 179 Ga. 136 (175 S.E. 460); Kirshbaum v. Jones, 206 Ga. 192, supra. Accordingly, the trial court erred in sustaining the general demurrer to the petition and in denying the temporary restraining order. See Sirota v. Kay Homes, 208 Ga. 113 (1) (65 S.E.2d 597); Washington Nat. Ins. Co. v. Mayor &c. of Savannah, 196 Ga. 126 (1) (26 S.E.2d 359).
Judgment reversed. All the Justices concur, except Duckworth, C. J., and Wyatt, P. J., who dissent.
WYATT, Presiding Justice.
I dissent for the reason I do not know what the Greater Atlanta area is. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338469/ | 98 Ga. App. 89 (1958)
105 S.E.2d 14
SUPERIOR TYPE, INC.
v.
WILLIAMS, Commissioner. LITHOPLATES, INC.
v.
WILLIAMS, Commissioner. SOUTHERN PHOTO PROCESS ENGRAVING COMPANY
v.
WILLIAMS, Commissioner.
37218, 37219, 37220.
Court of Appeals of Georgia.
Decided July 16, 1958.
Rehearing Denied July 31, 1958.
*91 Chas. L. Gowen, Gowen, Conyers, Fendig & Dickey, for plaintiffs in error.
Eugene Cook, Attorney-General, Ben F. Johnson, Jr., Hugh Gibert, Deputy Assistant Attorneys-General, Robt. H. Walling, contra.
TOWNSEND, Judge.
1. The act of 1951 (Ga. L. 1951, p. 360; Code, Ann., Ch. 92-34A) is designed to tax sales at retail. The taxable price in a retail sale must include the tangible personal property sold, including any services that are a part of the sale, valued in money. Code § 92-3403a (E). It is immaterial that it *92 includes the fabrication of tangible personal property for consumers who furnish, directly or indirectly, the materials used. § 92-3403a (B). But it is not a retail sale, and not taxable, if it constitutes personal service transactions which involve sales as inconsequential elements for which no separate charges are made. § 92-3403a (C) (2) (a).
Examining first the case of Superior Type, Inc., for the purpose of deciding whether its customer, a commercial printer, is primarily buying a service or a piece of metal wrought to certain specifications (tangible personal property), we are called upon to decide which category, personal service or personal property, overweighs the other. From the stipulated facts it appears that the Revenue Commissioner, too, has been troubled by the problem, since the regulations first exempted, then taxed, the finished product. In Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360 (73 S.E.2d 749) this court was called upon to decide whether a shoe repairman purchasing leather findings for use in repairing shoes was primarily selling services or products, and it was held that since he was primarily selling services the leather findings were not held by him for purposes of resale but were taxable when sold to him by the wholesaler. In that case the court said: "The difficulty in applying [the retail sale] definition is in determining whether the sale of the materials used is an inconsequential element of the service transaction, or whether the service rendered is a part of the sale. We do not think that the actual cost or monetary value of the materials used is determinative . . . we think that the main consideration should be the purpose of the customer, who primarily wishes to buy the skilled services of the shoe repairman because such services cannot be performed by the customer himself because he lacks the equipment, time, or skill required. Under such circumstances, the sale of various grades or qualities of materials by the shoe repairman is really incidental to and but a means of rendering the services which his customers want." In other words, where Mr. X brings in a pair of shoes to be resoled, the sole cut for that particular pair of shoes is of value only to Mr. X, and its value depends almost entirely upon the skill with which it is cut and attached to the boots. In like manner, the "make-up" of metal type for *93 page 365 of Mr. Y's book is of no value to anyone except Mr. Y, his printer and publisher. The suitability of the make-up for the use intended depends not upon the grade of lead employed but upon the skill with which the type has been assembled. As stated in A. B. C. Electrotype Co. v. Ames, 364 Ill. 360 (4 N.E.2d 476), in a case holding that manufacturers of electrotypes for the use of commercial printers were not engaged in the sale of tangible personal property at retail: "It clearly appears that except for salvage value the materials involved are of no use to any one other than the customer for whom the stereotype or electrotype is made. . . What the customer really pays for is the skill, labor, and use of the machinery and equipment of the electrotyper. The electrotyper is engaged in the business of furnishing that skill and labor and the use of that machinery not in the sale of tangible personal property at retail." In like manner, in J. A. Burgess Co. v. Ames, 359 Ill. 427 (194 N.E. 565), it was held that blueprinters, photostaters, and commercial photographers who reproduced special material to order were not engaged in the business of selling tangible personal property, the case stating: "It is the contention of the department that the paper, with the reproduction on it, is the subject of sale; but this can hardly be true under the act we are considering, because the paper is destroyed when the exposure is made, and it has no further use or value to any one other than the person interested in that particular reproduction. We can perceive no logical difference between the paper upon which a photostatic copy of something is made or a blueprint produced, and that paper which a lawyer uses for writing a will or deed, a doctor for writing a prescription, or an abstracter for showing a chain of title. The paper is a mere incident; the skilled service is that which is required." The closest case on its facts from another jurisdiction appears to be Typekrafters, Inc. v. Philadelphia, 34 Pa. D. & C. 82, digested in 139 A.L.R. 386 as follows: "Where it appeared that in the business of typesetting and machine composition, requiring the use of raw type metal which is converted into finished material available for final presswork through automatic machine operations, independent printing houses, in one class of cases, furnished their own type metal to the typesetter who performed the service of *94 making and setting the type, which was returned to the printer for presswork, the printer being billed solely for the value of the service rendered by the typesetter, while in the second class of cases the typesetter himself furnished the type metal and performed exactly the same service thereon for the printer as in the first class of cases, delivering the finished product and billing him exactly the same amount as under the other situation, plus an arbitrary charge for the type metal which was substantially in excess of the market value thereof, which served as a deposit to insure the return of the metal by the printer and which was refunded to the printer upon the return of the metal, so that in the end the net bill paid in either situation was the same, it was nevertheless held . . . that the first type of transaction was not taxable as a sale, while the latter type of transaction was taxable under a statute imposing a tax upon every sale of `tangible personal property sold at retail' which provided `the word "sale" or "selling" means any transfer of title or possession, or both, exchange or barter, license to use or consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration.' The court said that in the latter situation there was obviously a transfer of possession of property belonging to the typesetter, or a license to use the same, while in the former situation there was merely a rendition of services or the performance of labor upon the property of others." It appears obvious to this court that where, as in the first situation set out in that case, the printer furnishes his metal to the typesetter for the purpose of having skilled services performed upon it which result in its being useful to him for the single purpose of printing a customer's order, after which its value is reduced to the same scrap value as when it was furnished to the typesetter, only personal services are involved and the "make-up" is not subject to the sales tax. As to the second situation, our finding differs from that of the Pennsylvania court for this reason: our act provides that where an article is taken in trade the tax levied shall be paid on the net difference of the new articles less the credit for the used articles. Assuming that the plaintiff uses its own lead and the commercial printer replaces the weight of lead used, regardless of the exact nature of the bookkeeping transaction this is substantially a *95 trade-in of metal for metal. The metal received by the printer differs from the metal returned only in the quantity and quality of personal service rendered upon it by the setting of type. Accordingly, only personal service has been purchased. As to case No. 37218, the trial court erred in holding that the plaintiff Superior Type, Inc., was not entitled to the tax refund in the amount sought.
2. We are also inclined to the opinion that in the remaining cases involving lithoplating and photoengraving the same situation obtains and the printer is purchasing services rather than fabricated products. If we do not rest the cases upon this point it is only because there is not enough information set out in the stipulations to enable this court to ascertain what value, if any, attaches to the plates after their use in the process above referred to. We cannot judicially ascertain whether or to what extent the cost of these plates is predicated on services rather than materials, or whether they have a general value to the public after having been used for the purpose for which purchased. It is, however, perfectly clear that the commercial printer purchases these plates for resale, since in every case he separately charges his customer the cost of the plate, plus a 15% profit, with sales tax added thereon, and the customer is the owner of and entitled to the possession of the property involved. The contention that there was no sale of the plate to the consumer and that this is a mere pricing device must be answered adversely because the question depends upon who has the right of possession of the plate, and it appears from the stipulation that this right of possession is in the consumer. Any other argument is an inferential admission that the plate has no value except for the transaction for which it was ordered, and, if that appeared, we would immediately hold that the transaction involves a purchase of personal services only. The other contention is that the sale is not a retail sale because of the provisions of Code § 92-3410a as follows: "If a purchaser who gives a certificate makes any use of the property other than retention, demonstration, or display while holding it for sale in the regular course of business, the use shall be deemed a retail sale by the purchaser as of the time the property is first used by him, and the cost of the property to him shall *96 be deemed the gross receipts from such retail sale." Thus, if a retailer of electric appliances took a washing machine to his home for his personal use he would at that time be liable for the tax regardless of the fact that at some subsequent time he sold the machine in the regular course of his business. Thus, also, if the commercial printer obtaining a photoengraving should first make personal use of it by printing up postal cards to be sold by himself he would be liable for the tax although he thereafter used the plate to fill an order for a customer and, as a part of the delivery of the order, sold the plate to the customer. But the use made of an electroplate or photoengraving the image for which is furnished by the customer of the commercial printer for the purpose of printing up material for such customer, including the reproduction of the image, is not a use contemplated by this provision of the law, for the reason that it is solely for the benefit of the buyer who ultimately receives both title and right of possession of the photoengraving and pays the sales tax thereon. Its purchase in the first instance by the printer is for the purpose of resale after use for the benefit of the person to whom it is resold, by printing up the copy which the customer has ordered. In like manner, the vendor of the washing machine, in installing the appliance in the home of the purchaser, is performing a service for the purchaser rather than for himself in making the installation, even though he might refuse to make the sale without also receiving the profit to be derived from the installation. The words of the statute "holding for sale in the regular course of business" refer to holding for sale to the general public. If the printer ordered a number of photoengravings which he contemplated selling for profit to some as yet unascertained purchaser, he would be holding for sale in the regular course of business. Where the plate is purchased for the benefit of the customer who has placed his order, and is then resold to such customer, the use is for the benefit of the customer, and Code § 92-3410a does not apply.
The trial court also erred, as to cases 37219 and 37220, in holding the plaintiffs, Lithoplates, Inc., and Southern Photo Process Engraving Company, not entitled to the tax refunds in the amount sought, requiring reversal of the 3 cases.
Judgments reversed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338468/ | 105 S.E.2d 564 (1958)
Adeline ROACH
v.
William W. HARPER.
No. 10955.
Supreme Court of Appeals of West Virginia.
Submitted September 16, 1958.
Decided November 11, 1958.
*565 William E. Conklin, Chester, for plaintiff in error.
W. W. Ingram, Callie Tsapis, Ruth Turner, Chester, for defendant in error.
GIVEN, Judge.
Plaintiff, Adeline Roach, instituted an action of trespass on the case in the Circuit Court of Hancock County, against defendant, William W. Harper, claiming damages for invasion by defendant of the "right to privacy" of plaintiff, in that defendant, by means of a hearing device installed by him in an apartment rented by him to plaintiff, overheard "confidential and private conversations" of plaintiff. Defendant demurred to the declaration, contending that no right of action exists in this State for recovery of damages occasioned by invasion of privacy, that the declaration was insufficient in law in that it contained no allegation to the effect that any conversation heard by defendant was repeated or published, and in that it contained no allegation to the effect that plaintiff suffered any special damages. The trial court sustained the demurrer, and dismissed the action, with prejudice.
The declaration charges that defendant, about August, 1956, rented an apartment to plaintiff, which she thereafter occupied as a residence; that before the renting of the apartment, defendant caused to be installed therein "some sort of a receiving set or listening device which was connected to a speaker in the office of said defendant", by means of which defendant did "repeatedly invade the privacy of this plaintiff's said apartment", and, between August 1, 1956 and February 12, 1957, "maliciously, wantonly, unlawfully and secretly did, on divers occasions * * * listen over said speaker and through the same did hear everything said and done by the plaintiff in her said apartment on said occasions", including numerous personal, social, private and confidential conversations.
We have been cited no case decided by this Court, and have found none, which considers the precise question posed. No statute of this State governs or relates directly to the question. The question, however, has reached many courts of this country, and has been exhaustively and historically considered by numerous law writers and in numerous court opinions. An article, The Right to Privacy, written by Samuel D. Warren and Louis D. Brandeis, published about 1890 in 4 Harvard Law Review 193, perhaps the pioneering article, has been most often referred to and is considered a leading article supporting the theory of the existence of a right of action for the invasion of privacy. Other leading authorities considering the question are: Interests of Personality, 28 Harvard Law Review 343, at 362; The Right of Privacy, 2 Columbia Law Review 437; The Law of Privacy, 12 Columbia Law Review 693; The Right of Privacy, 39 Michigan Law Review 526; Restatement of the Law of Torts, Section 867; 41 Am.Jur., Privacy, Section 2, et seq.; 77 C.J.S. Right of Privacy, § 2 et seq. The existence of the right is refuted in an article published in 3 Northwestern Law Review 1. In the late, very excellent, work of Harper and James, Law of Torts, Vol. 1, page 690, it is stated: "The `right of privacy' has had an extensive development since Brandeis and Warren wrote their article. On the whole, the courts have been sympathetic with it in spite of the delicacy of the problems raised and the difficulty of drawing the nice line which separates what the individual *566 may keep to himself and what the public is entitled to know about him. All will admit that some intrusions into one's personal life are so indecent and outrageous and calculated to cause such excruciating mental pain to all but the most callous that it would be a reproach to the law not to allow redress. On the other hand, it is equally clear that society cannot protect the neurotically thin-skinned against those trivial invasions of privacy which the normal person suffers with equanimity. The mores and the law must distinguish the one from the other."
Before the publication of the Warren-Brandeis article, however, in De May v. Roberts, 46 Mich. 160, 9 N.W. 146, 149, the Court permitted recovery on the basis of invasion of rights of privacy, in a case where the attending physician was responsible for the presence of a young unmarried man during the time plaintiff was in pain of parturition, the Court saying: "* * * The plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this right by requiring others to observe it, and to abstain from its violation. The fact that at the time, she consented to the presence of Scattergood supposing him to be a physician, does not preclude her from maintaining an action and recovering substantial damages upon afterwards ascertaining his true character. In obtaining admission at such a time and under such circumstances without fully disclosing his true character, both parties were guilty of deceit, and the wrong thus done entitles the injured party to recover the damages afterwards sustained, from shame and mortification upon discovering the true character of the defendants.
"Where a wrong has been done another, the law gives a remedy, and although the full extent and character of the injury done may not be ascertained or known until long after, yet in an action brought damages therefor may be fully awarded. * * *"
In Rhodes v. Graham, 238 Ky. 225, 37 S.W.2d 46, 47, the plaintiff alleged invasion of right of privacy by means of unwarranted and secret tapping of a telephone line of plaintiff by defendants. In overruling the demurrer to an amended petition, the Court said: "The evil incident to the invasion of the privacy of the telephone is as great as that occasioned by unwarranted publicity in newspapers and by other means of a man's private affairs for which courts have granted the injured person redress. Whenever a telephone line is tapped the privacy of those talking over the line is invaded and conversations, wholly proper and confidential, may be overheard. Wire tapping is akin to eavesdropping, which was an indictable offense at common law, and while it has not been made a punishable offense by statute in this state, we conclude that the facts alleged in the petition in this case constitute a wrong done to appellant for which the law affords a remedy by an action for damages." See Gregory v. Bryan-Hunt Co., 295 Ky. 345, 174 S.W.2d 510.
In McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga.App. 92, 2 S.E.2d 810, 816, defendant caused to be installed in a private hospital room, in which plaintiff was a patient, a receiving set which was connected to a set of earphones in a room above that of plaintiff, by means of which defendant could hear conversations of plaintiff. In holding that the petition stated a cause of action, the Court said: "It is earnestly contended by counsel for the defendant in error that, in the offense of the invasion of the privacy of another, the gravamen or essence of the action is publication or commercialization of the information obtained, and that without such no action is maintainable. There is nothing in the decided cases of this State, however, which indicates any such limitation or qualification of the right, and we think that under the decisions a person's privacy is invaded, in a case like the present, even though the information obtained be restricted to the immediate transgressor. Publication or commercialization may aggravate, but the individual's right to privacy is invaded *567 and violated nevertheless in the original act of intrusion. It is clear that the petition in the present case set out a cause of action." See Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101.
In a well considered case, Eick v. Perk Dog Food Co., 347 Ill.App. 293, 106 N.E.2d 742, 743, the Court, after holding that the amended complaint stated a cause of action, reversing the trial court, stated: "* * * These allegations state a cause of action for violation of an interest which has become known as the right of privacy. The question of whether or not such a right exists in Illinois has never been passed upon by any court of review in this state.
"The right is now recognized by the great preponderance of authority throughout the country. Courts of at least twenty American jurisdictions have explicitly recognized the right either in direct holdings or well considered dicta. * * * [citing numerous authorities]
"Following the lead of Samuel Warren and Louis D. Brandeis, whose famous article The Right of Privacy, 4 Harv.L.R. 193 (1890) first used the phrase `right of privacy,' distinguished writers have supported the recognition of the right. Larremore, The Law of Privacy, 12 Col.L.R. 693 (1912); Pound, Interests in Personality, 28 Harv.L.R. 343, 362-4 (1915); Winfield, Privacy, 47 Law Q.R. 23 (1931); Green, Right of Privacy, 27 Ill.L.R. 237 (1932); Nizer, Right of Privacy, 39 Mich.L.R. 526 (1941); Thayer, Legal Control of The Press, Ch. 12 (1944); Feinberg, Recent Developments in the Law of Privacy, 48 Col.L.R. 713 (1948). In American Jurisprudence, Vol. 41, pg. 927, it is stated that the preponderance of authority supports the view that there is a legal `right of privacy,' the invasion of which gives a right to a cause of action. This is likewise supported by articles in the American Law Reports, 138 A.L.R. 22; 168 A.L.R. 446; 14 A.L.R. 2d 750, and by 54 Corpus Juris, 816, Right of Privacy, 1931, 77 C.J.S. Right of Privacy § 1. The right is defined and approved in the Restatement of Torts, Sec. 867.
"Against this massive weight of authority there is pitted a small, largely inconclusive group of opinions written for the most part before the bulk of the cases upholding the right of privacy were decided. Only one of the cases cited as denying the existence of the right of privacy stands today as an unqualified precedent refusing to recognize the right. * * *"
In Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340, 343, the Court stated: "In Ohio the lower courts have acknowledged the right, but counsel are agreed that it still is a matter of first impression in this court. However, since both reason and authority are convincingly in favor of recognition of the right, it would seem that Ohio, too, should not hesitate to take the definite step of approving this salutary and progressive principle of law." See Welsh v. Pritchard, 125 Mont. 517, 241 P.2d 816; Hinish v. Meier & Frank Co., 166 Or. 482, 113 P.2d 438, 138 A.L.R. 1; In re Lanza, 6 Misc. 2d 411, 163 N.Y.S.2d 576; Watson v. Dilts, 116 Iowa 249, 89 N.W. 1068, 57 L.R.A. 559; Jacova v. Southern Radio & Television Co., Fla., 83 So. 2d 34; Abernathy v. Thornton, 263 Ala. 496, 83 So. 2d 235; Langford v. Vanderbilt University, 199 Tenn. 389, 287 S.W.2d 32; Roberson v. Rochester Folding-Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478.
The cases cited, we think, are sufficiently illustrative. An attempt to collate here the many pertinent holdings would be useless. That end has been attained in annotations in 14 A.L.R. 2d 750; 168 A.L.R. 446 and 138 A.L.R. 23. The author of the last cited annotation, in summary, says, at page 28: "The brief review above shows a decided preponderance of authority favoring the view that there is a legal right of privacy that will be given protection as such. It discloses, in fact, that since the enactment of the New York privacy statute there is only one American jurisdiction, *568 namely, Rhode Island, in which it can be definitely said, on the basis of actual decisions, that there is no such legal concept as the right of privacy."
"The `right of privacy' has been defined as the right of an individual to be let alone, to live a life of seclusion, or to be free from unwarranted publicity." 77 C.J.S. Right of Privacy § 1. The right of privacy is closely related to many other subjects of law, e. g., libel and slander, literary property, wrongful search and seizure, compulsary physical examination and eavesdropping. 41 Am.Jur., Privacy, Section 1. Though different in some respects from such subjects, the right to privacy is an individual right that should be held inviolate. To hold otherwise, under modern means of communication, hearing devices, photography, and other technological advancements, would effectively deny valuable rights and freedoms to the individual.
The usual argument against the existence of the right of action is that it is for a wrong or tort for which no recovery was permitted at common law. We need not here, however, theorize as to the basis for the existence of the right. See 41 Am. Jur., Privacy, Section 6, et seq. As above pointed out, that existence has been affirmed by the very great weight of authority. It may not be amiss, however, to quote language of Judge Parker in the opinion in Barnes Coal Corporation v. Retail Coal Merchants Ass'n, 4 Cir., 128 F.2d 645, 648: "* * * It must be remembered, in this connection, that the common law is not a static but a dynamic and growing thing. Its rules arise from the application of reason to the changing conditions of society. It inheres in the life of society, not in the decisions interpreting that life; and, while decisions are looked to as evidence of the rules, they are not to be construed as limitations upon the growth of the law but as landmarks evidencing its development. As was said in Hurtado v. [People of State of] California, 110 U.S. 516, 530, 4 S.Ct. [111], 292, 28 L. Ed. 232, `Flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law' * * *".
Having reached the conclusion that the plaintiff has the right to maintain her action for invasion of privacy, we reach the questions of whether a declaration in such an action, to be sufficient against demurrer, must allege special damages, and publication. Courts which have followed the doctrine of the existence of the right of action have had no difficulty in reaching the conclusion that an allegation of special damages is not necessary to the validity of the pleading. We think the conclusion logical. The invasion of the right, the tort committed, gives right to the action, the right to recover damages. "Publication or commercialization may aggravate, but the individual's right to privacy is invaded and violated nevertheless in the original act of intrusion." McDaniel v. Atlanta Coca-Cola Bottling Co., supra. Questions of special damages, of course, may arise so as to enhance recovery. Also, circumstances may arise which would mitigate damages. 41 Am.Jur., Privacy, Sections 13, 34; Annotation, 138 A.L.R. at page 48. The same reasoning leads to the conclusion that a declaration in such an action, to be sufficient against demurrer, need not allege publication of information or results obtained through the invasion. 41 Am.Jur., Privacy, Section 20; Annotation, 138 A.L.R. 63.
The judgment of the trial court complained of is reversed, the action is reinstated, and remanded to the Circuit Court of Hancock County.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338471/ | 233 S.C. 369 (1958)
105 S.E.2d 88
Walter B. WEST, Administrator of the Estate of Baby Child (unnamed) West, Deceased, Plaintiff-Respondent,
v.
C.L. McCOY and Curtis Catoe, Defendants-Appellants.
17460
Supreme Court of South Carolina.
August 20, 1958.
Messrs. D. Glenn Yarborough, of Lancaster, and William F. Prioleau, Jr., of Columbia, for Appellants.
*370 Messrs. Richards & Richards and Richards, Caskey & Richards, of Lancaster, for Respondent.
August 20, 1958.
TAYLOR, Justice.
This appeal arises out of an action for the wrongful death of an unborn child, said action being brought under Section 10-1951, Code of Laws of South Carolina, 1952, which reads as follows:
"Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, not withstanding the death of the person injured, * * *".
The complaint, omitting immaterial parts, appears as follows:
"3. That Plaintiff brings this action for damages including punitive damages for the wrongful death of the late Baby child (unnamed) West, Plaintiff's child, which wrongful death was caused by one or more or all of the reckless, willful, careless, negligent and wanton acts or delicts of the Defendants, as is hereinafter specifically set out.
"4. That at or about 11 A.M., May 13, 1957 Mary Ruth M. West was about five months pregnant with child and was driving her 1954 Ford automobile Northward on U.S. Highway No. 521 alternate in the town of Kershaw, Lancaster *371 County, South Carolina, in a lawful, careful and prudent manner. That as she approached the railroad tracks which cross said alternate highway a short distance South of said alternate's intersection with U.S. No. 521, she gave a proper and lawful mechanical lighted turn signal in order that she might turn left off the highway. Before she could turn, a 1956 Chevrolet automobile, owned by Defendant Curtis Catoe, and being driven Northward by Defendant C.L. McCoy recklessly and at a high speed, crashed violently into the rear of her automobile and severely bruising and shaking Mrs. West, wrenching her neck and causing her to be highly nervous.
* * *
"5. That as a direct result of the above described collision the following occurred: Mrs. West experienced internal cramps shortly after the accident and early the next morning vaginal bleeding began. Upon the advice of her doctor Mrs. West went to bed and remained until she went to the hospital. The bleeding and cramps continued. She began to run temperature and experienced swelling of her abdomen. She continued to feel the fetal movements of the child until about June 1, having first felt the child around May 1 when she was about four and one-half months pregnant. On about June 15, 1957, Mrs. West's condition became so bad that she was taken to the hospital where on June 17, 1957, she suffered a miscarriage. Prior to the wreck, Mrs. West had experienced no difficulty with her pregnancy.
"6. That said miscarriage was proximately, directly and solely caused by the negligent, careless, willful, unlawful, reckless and wanton acts of Defendant C.L. McCoy, driver of the said automobile owned by Defendant, Curtis Catoe, in the manner hereinbefore described and in the following particulars, to wit: * * ."
Appellant demurred to the foregoing complaint upon the grounds that "it appears on the face thereof that the Complaint does not state facts sufficient to constitute a cause of action, and that the Plaintiff has no legal capacity to sue."
*372 The demurrer was overruled, and this appeal presents for the first time before this Court the question of whether or not an action will lie for the wrongful death of an unborn child, which is quick and capable of moving in its mother's womb.
The weight of authority supports the rule that in absence of a statute, a prenatal injury affords no basis for an action for wrongful death by the parents or personal representative of a child. This is true where a statute giving the right of action for the wrongful death is construed as conferring such right only where the injured person could himself have maintained an action for damages had he lived and a child so injured is regarded as having no right of action. 16 Am. Jur. 56, Sec. 75.
"It is a general rule of law that in the absence of a statutory provision (this State has no such statute) requiring a different result, a prenatal injury affords no basis for an action in damages in favor of the child. The doctrine of the civil law and the ecclesiastical and admiralty courts that an unborn child may be regarded as in esse for some purposes, when for its benefit, has been characterized as a legal fiction not indulged in by the courts to the extent of allowing an action by an infant for injuries occasioned before its birth. A reason advanced for this rule is that there is no person in being at the time of the accident to whom the defendant owes a duty of care. There is, however, some difference of opinion on the question." 52 Am. Jur. 440, Sec. 98.
The 1958 Supplement to this Volume, Page 32, sets forth:
"* * * Some comparatively recent decisions, indicative of a more liberal and realistic approach to the problem, support the view that an unborn child, viable and capable of existing independently of its mother when injuries are wrongfully inflicted upon it, may, after birth, maintain an action for such injuries. * * *"
The following cases are of interest in considering the proposition that an unborn child has no cause of action for *373 prenatal injuries, and no right of action exists for its death prior to birth in that the unborn child is a part of the mother at the time of injury and any damage to it which is not too remote to be recovered at all is recoverable by her. Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am. Rep. 242; Allaire v. St. Luke's Hospital, 184 Ill. 359; 56 N.E. 638, 48 L.R.A. 225, 75 Am. St. Rep. 176; Gorman v. Budlong, 23 R.I. 169, 49 A. 704, 55 L.R.A. 118, 91 Am. St. Rep. 629; Buel v. United Rys. Co., 248 Mo. 126, 154 S.W. 71, 45 L.R.A., N.S., 625, Ann. Cas. 1914C, 613, 4 N.C.C.A. 129; Nugent v. Brooklyn Heights R. Co., 209 N.Y. 515, 102 N.E. 1107; Lipps v. Milwaukee Electric Ry. & Light Co., 164 Wis. 272, 159 N.W. 916, L.R.A. 1917B, 334, 13 N.C.C.A. 1113; Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503, 21 N.C.C.A. 702; Stanford v. St. Louis-San Francisco R. Co., 214 Ala. 611, 108 So. 566, 25 N.C.C.A. 874; Magnolia Coca-Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W. (2d) 944, 97 A.L.R. 1513; Newman v. City of Detroit, 281 Mich. 60, 274 N.W. 710; Smith v. Luckhardt, 299 Ill. App. 100, 19 N.E. (2d) 446; Drabbels v. Skelly Oil Co., 155 Neb. 17, 50 N.W. (2d) 229; Howell v. Rushing, Okla., 261 P. (2d) 217; Norman v. Murphy, 124 Cal. App. (2d) 95. 268 P. (2d) 178; Cavanaugh v. First Nat'l Stores, Inc., 329 Mass. 179, 107 N.E. (2d) 307; Restatement, Torts, Sec. 869; 52 Am. Jur. 291, 296; Mays v. Weingarten, Ohio App., 82 N.E. (2d) 421.
Recently the trend has been toward a more liberal construction, and various Courts have had before them for consideration cases involving prenatal injuries to a fetus or unborn child of various stages of development where recovery was permitted or indicated. Stemmer v. Kline, 17 A. (2d) 58, 19 N.J. Misc. 15; Id., 128 N.J.L. 455, 26 A. (2d) 489, 684; Kine v. Zuckerman, 4 Pa. Dist. & Co. R. 227, but see Berlin v. J.C. Penney Co., Inc., 339 Pa. 547, 16 A. (2d) 28; Lipps v. Milwaukee Electric Ry. & Light Co., supra, where the Court indicates that a cause of action for *374 prenatal injuries to a viable child would lie; Cooper v. Blanck, La. App., 39 So. (2d) 352; Amann v. Faidy, 415 Ill. 422, 114 N.E. (2d) 412, (Overruled the Allaire case); Bonbrest v. Kotz, D.C., 65 F. Supp. 138; Damasiewicz v. Gorsuch, 197 Md. 417, 79 A. (2d) 550; Jasinsky v. Potts, 153 Ohio St. 529, 92 N.E. (2d) 809; Tucker v. Howard L. Carmichael & Sons, Inc., 208 Ga. 201, 65 S.E. (2d) 909; Prates v. Sears, Roebuck & Co., 19 Conn. Supp., 487, 118 A. (2d) 633; Worgan v. Greggo & Ferrara, Inc., Del. Super., 128 A. (2d) 557; Rainey v. Horn, 221 Miss. 269, 72 So. (2d) 434; Steggall v. Morris, 363 Mo. 1224, 258 S.W. (2d) 577; Verkennes v. Corniea, 229 Minn. 365, 38 N.W. (2d) 838, 10 A.L.R. (2d) 634; Poliquin v. MacDonald, 101 N.H. 104, 135 A. (2d) 249. See Annotations, Prenatal injury as ground of action, 10 A.L.R. (2d) 1059 and 27 A.L.R. (2d) 1256, et seq.
An expectant mother sustaining personal injuries as a result of which her child is born dead has no cause of action for the death of the child, the child not being regarded as a person until born alive. 25 C.J.S. Death § 21, p. 1087; see also 16 Am. Jur. 56, Sec. 75. Under common law the child had no right to recover damages for prenatal injuries and the parents had no right to recover damages either before or after birth; therefore, if the right to recover money by way of damages exists, it exists perforce by way of statute. In Woods v. Lancet, 1951, 303 N.Y. 349, 102 N.E. (2d) 691, 27 A.L.R. (2d) 1250, the New York Court recognized the recent trend permitting a child to maintain an action by his representative in case of subsequent death arising out of prenatal injuries; but in 1956, In re Estate of Logan, 4 Misc. (2d) 283, 156 N.Y.S. (2d) 49, it was held that where a child was born dead allegedly by reason of injuries suffered while in its mother's womb some few months prior to birth, by reason of precedent and public policy, a wrongful death action for unborn child could not be instituted.
*375 In instant case, we are not concerned with death after birth, neither does it appear that the child was viable at the time of injury or delivery but that movement which was first felt about May 1 continued until about June 1, when she was approximately five and one-half months pregnant. Approximately 17 days thereafter, she suffered a miscarriage. There is a medical distinction between the term "embryo" and the phrase "viable fetus". The embryo is the fetus in the earliest stages of development but the expression "viable fetus" means the child has reached a stage of development where it can live outside the female body as well as within it. A fetus generally comes a viable child between the sixth and seventh month of its existence. Mitchell v. Couch, Ky., 285 S.W. (2d) 901.
Many of the decisions heretofore referred to arise out of cases where prenatal injuries resulted in disability or death after live birth and where the infant was viable and capable of being delivered and remaining alive separate from its mother at the time of injury or death. The allegations of the complaint, which must be taken as true for the purpose of demurrer, in instant case are that the child was quick, that the mother "continued to feel the fetal movements of the child until around June 1, having first felt the child around May 1 when she was about four and one-half months pregnant." We are, therefore, not concerned here with whether an action may be maintained by a child injured while en ventre sa mere and born alive, and intimate no opinion thereabout, but where the mother suffered a miscarriage after approximately five and one-half months of pregnancy. The policy considerations which call for a right of action when a child survives do not necessarily apply in the absence of survival.
We are not unmindful of the Opinion of this Court in State v. Steadman, 214 S.C. 1, 51 S.E. (2d) 91. It must be remembered, however, that this case involved the construction of a criminal statute and is not apropos here.
*376 Under the facts as heretofore stated, we are of the opinion that an action will not lie under Section 10-1951, Code of Laws of South Carolina, 1952, that the Order should be reversed and the demurrer sustained; and it is so ordered. Reversed.
STUKES, C.J., and OXNER, LEGGE and MOSS, JJ., concur. | 01-03-2023 | 10-30-2013 |
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280 Ga. 297
WILLIAMS
v.
The STATE.
No. S06A0544.
Supreme Court of Georgia.
February 27, 2006.
*33 Orin L. Alexis, for Appellant.
Spencer Lawton, Jr., Dist. Atty., Thurbert E. Baker, Atty. Gen., Robin Joy Leigh, Asst. Atty. Gen., Margaret Ellen Heap, Asst. Dist. Atty., for Appellee.
MELTON, Justice.
Appellant Johnny Mack Williams was indicted for malice murder, felony murder, aggravated assault, and possession of a knife during the commission of a felony, all in connection with the stabbing death of Randy Marshall.[1] The jury found appellant not guilty of malice murder but determined he was guilty of the remaining charges. He appeals from the denial of his amended motion for new trial. Finding no error we affirm the conviction, but remand on the issue of the effectiveness of his trial counsel.
1. A jury was authorized to find the victim and his wife, Charlotte Marshall, were a homeless couple who spent most of their time at the convenience store where the crimes took place. Appellant's companion, Henry Green, testified that on December 14, 2002, he drove appellant to the convenience store to purchase beer. Charlotte was sitting on the curb in front of the store, and her husband was standing nearby when appellant arrived. Appellant remarked, "hey, baby," to Charlotte as he entered the store. The victim confronted appellant about the comment when appellant exited. Appellant placed his purchase on the front seat of Green's car and then walked to the back of the car where the victim was standing. Witnesses testified they saw appellant fight with the victim, observed the victim fall and thereafter noticed appellant fold up a knife and place it in his pocket as he calmly walked back to Green's vehicle and sat down in the passenger seat. Later, appellant stated to police detectives, "Yeah, I stabbed him. I hope he . . . dies. He shouldn't have been messing with me." The victim died a few days later from a stab wound that perforated his heart.
We find this evidence sufficient to authorize a rational trier of fact to find appellant *34 guilty of felony murder, aggravated assault, and possession of a knife during the commission of a felony beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Contrary to appellant's argument, nothing in the record supports his contention that the court failed to charge that voluntary manslaughter is a lesser included offense of felony murder. Not only does the transcript show that the trial court gave a charge on that lesser included offense, the record also reveals that the jury verdict form specified voluntary manslaughter as a lesser included offense of felony murder.
3. We also disagree with appellant that the court committed reversible error when it recharged the jury on voluntary manslaughter. In response to an objection raised by the State, the trial court re-instructed the jury on the definition of voluntary manslaughter, by charging the entire pattern charge, including that if there is an interval of time between the provocation and the killing, the killing can be considered revenge and punished as murder. Appellant argues that the trial court erred by adding the "interval" language in the second instruction. Under the facts of this case, the trial court did not err where the additional instruction was an accurate statement of the law and authorized by the evidence. Miner v. State, 268 Ga. 67(2), 485 S.E.2d 456 (1997).
4. Appellant contends that he did not receive effective assistance of trial counsel. Appellant's trial counsel filed a timely motion for new trial and a timely appeal. Ten months later, new appellate counsel filed a second motion for new trial asserting ineffectiveness of trial counsel. The trial court dismissed the motion because the notice of appeal had already been filed. See generally Bridges v. State, 279 Ga. 351(10), 613 S.E.2d 621 (2005) (filing of a notice of appeal divests a trial court of jurisdiction). Under the circumstances, where appellate counsel did not have an opportunity to raise the ineffectiveness of appellant's trial counsel, and where the issue is raised at the earliest practicable moment, remand is required for the trial court to conduct an evidentiary hearing on the claim. See Glover v. State, 266 Ga. 183(2), 465 S.E.2d 659 (1996).
Judgment affirmed and case remanded.
All the Justices concur.
NOTES
[1] The crime was committed on December 14, 2002. Williams was indicted during the March 2003 term of the Chatham County grand jury, and a jury trial was held on September 29-30, 2003. Williams was sentenced to life imprisonment for felony murder and a consecutive five-year term for the possession charge. A motion for new trial was filed October 29, 2003, amended on March 24, 2004, and denied on May 17, 2002. Williams filed a notice of appeal on June 11, 2004. The case was docketed in this Court on December 1, 2005, and submitted for decision without oral argument. | 01-03-2023 | 10-30-2013 |
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280 Ga. 288
PITTS
v.
The STATE.
No. S05G1156.
Supreme Court of Georgia.
February 27, 2006.
*18 Louis M. Turchiarelli, Marietta, for appellant.
Garry Thomas Moss, Dist. Atty., Samuel Kevin Barger, Asst. Dist. Atty., for appellee.
SEARS, Chief Justice.
We granted certiorari in this case to determine whether the Confrontation Clause of the United States Constitution is violated by the admission, during a criminal trial, of a tape-recording of a 911 emergency telephone call when the caller does not testify at trial. We hold that the Confrontation Clause is not violated where, as here, the caller's primary purpose is not to provide evidence against the accused, but rather, to thwart an ongoing crime or seek rescue from immediate peril. Accordingly, we affirm the Court of Appeals.[1]
In Crawford v. Washington, the United States Supreme Court held that the admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.[2] When the statement *19 at issue is non-testimonial in nature, however, the State's normal rules regarding the admission of hearsay apply.[3] The Supreme Court declined to delineate the precise contours for determining whether a statement qualifies as testimonial, but did provide some helpful analysis in that regard.[4]
The Supreme Court found that for those statements that "bear testimony" against the accused, the defendant's right of "confrontation" was the only historically dependable means of testing the reliability of that statement.[5] Testimony is a "solemn declaration or affirmation made for the purpose of establishing or proving some fact."[6] Thus, the Confrontation Clause would prohibit the introduction of a formal statement to a government officer made in an effort to establish an evidentiary case, such as that which occurs during a police investigation.[7] The Supreme Court also found that a statement might also be considered testimonial if it was "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."[8]
Numerous cases around the country have addressed the issue of whether a 911 telephone call should be considered testimonial. Some courts have concluded that a 911 recording is always testimonial, because it involves a statement to a government officer that an objective person understands could always be used in a future prosecution.[9] Some courts, on the other hand, have concluded that because a 911 call is initiated by a citizen, rather than an instrument of the State, and is not "knowingly given in response to structured police interrogation," it should not be considered testimonial.[10] We now hold, however, consistent with the majority view, that the determination of whether the recording of a 911 phone call is testimonial should be made on a case-by-case basis.
Where the primary purpose of the telephone call is to establish evidentiary facts, so that an objective person would recognize that the statement would be used in a future prosecution, then that phone call "bears testimony" against the accused and implicates the concerns of the Confrontation Clause. Such a situation is exemplified by the case of State v. Powers.[11] Using a case-by-case analysis, the court in Powers found that the 911 call, in which the caller reported the defendant for a recent parole violation, was testimonial because it was made to report a completed violation of law and to assist law enforcement in the apprehension and/or prosecution of the perpetrator.[12] The caller was not in immediate peril, but was calling to report the defendant's whereabouts, description, and the fact that he had violated an earlier court order.[13] Thus, the primary purpose of the statement was to establish evidence that could be used in a future prosecution, and the statement was testimonial.[14]
Where, on the other hand, the telephone call is made to avert a crime in progress or to seek assistance in a situation involving immediate danger, then the statements made during the phone call are not *20 testimonial. In People v. Conyers,[15] for example, the court found that the recording of a 911 call was non-testimonial where the call was made while the crime was in progress, by a panicked caller whose primary purpose was to seek assistance to prevent the completion of an ongoing crime. The caller in that instance, the court found, was not concerned with establishing evidentiary facts or "bearing testimony" against the defendant.[16] We find that the same analysis is applicable here, and that the recording of the 911 phone call in this case is non-testimonial.[17]
The 911 phone call in this case was made by Amy Pitts, the wife of the defendant Ryan Craig Pitts and victim of the crime, while the crime was ongoing. She stated that her husband had broken into her home, that another man was on the porch, and that she needed police to immediately come to her home and help her. After describing the situation, Amy is heard screaming "Get away from me," and the call was disconnected. The 911 operator called back immediately, and after several attempts, eventually got Amy back on the phone. After stating much of the same information again, the call was once again disconnected. The 911 operator again called back, and when Amy was finally able to answer the call, she told the operator that the defendant was running around the house without any clothes on, that he was violating his parole by being in the house, and that she needed assistance. After Amy again is heard screaming at the defendant, the call was disconnected for a final time.
When the police arrived, they found the scene much the same as the caller had described. One officer, while looking through a window in the back of the house, witnessed Pitts holding the victim down on the bed. When Pitts saw the officer, he fled towards the front of the house, but was eventually subdued by the police.[18]
Amy Pitts asserted her marital privilege and did not testify at trial, thus rendering her "unavailable" at trial.[19] The trial court admitted the entire recording, and we find no error under the present circumstances. However, we do caution that in certain circumstances a caller may shift from a non-testimonial statement into a testimonial one. When Amy Pitts explained to the operator that her husband had violated his parole and that he was "wanted," she came close to providing testimonial evidence.[20] Because the crime was still ongoing in her immediate presence, however, her primary purpose remained the prevention of immediate harm to herself, and her statements regarding her husband's parole violation were made to illustrate the prior difficulties that made the current situation such a dangerous one. In future cases, trial courts must decide whether a caller's primary purpose has shifted in such a manner as to render portions of the call testimonial in nature, and should selectively redact portions of the recording when that is the case.
*21 The statement in this case, made while the crime was in progress for the purpose of seeking immediate assistance, was not testimonial. Thus, the statement was admissible if it qualified under one of Georgia's hearsay exceptions.[21] We find no error in the Court of Appeals' determination that these statements qualified under the res gestae or excited utterance exceptions to the hearsay rule.[22]
Judgment affirmed.
All the Justices concur.
NOTES
[1] Pitts v. State, 272 Ga.App. 182(2), 612 S.E.2d 1 (2005).
[2] 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
[3] Id.
[4] Id.
[5] Id. at 51, 124 S.Ct. 1354.
[6] Id.
[7] Id.
[8] Id. at 51-52, 124 S.Ct. 1354.
[9] People v. Dobbin, 6 Misc.3d 892, 896-897, 791 N.Y.S.2d 897 (N.Y.Sup.2004); People v. Cortes, 4 Misc.3d 575, 596, 781 N.Y.S.2d 401 (N.Y.Sup. 2004).
[10] People v. Corella, 122 Cal.App.4th 461, 468-469, 18 Cal.Rptr.3d 770 (2004).
[11] 124 Wash.App. 92, 101-102, 99 P.3d 1262 (2004).
[12] Id.
[13] Id.
[14] See also People v. West, 355 Ill.App.3d 28, 40-41, 291 Ill.Dec. 72, 823 N.E.2d 82 (2005) (finding a 911-call to be non-testimonial because it was not made to initiate a police prosecution or in response to a deliberate interrogation).
[15] 4 Misc.3d 346, 350, 777 N.Y.S.2d 274 (N.Y.Sup.2004).
[16] Id.
[17] See Leavitt v. Arave, 371 F.3d 663, 683, n. 22 (9th Cir.2004) (call made on the night before caller's murder, where she claimed the defendant was prowling around her house, was non-testimonial because it was made to seek help in situation of immediate peril); People v. Moscat, 3 Misc.3d 739, 746, 777 N.Y.S.2d 875 (N.Y.2004) (911 call made to seek help not testimonial); Gamble v. State, 831 N.E.2d 178, 183 (Ind.App. 2005) (911 call not testimonial where primary purpose of caller was to inform medical personnel that someone had been injured). See also State v. Wright, 686 N.W.2d 295, 302 (Minn.App. 2004) (911 call made moments after crime occurred, where caller is still subject to the stress of the prior event, is not testimonial).
[18] The Court of Appeals also ruled that statements the victim gave to police after they had arrested Pitts did qualify as testimonial, and thus, the admission of those statements violated the Confrontation Clause. Pitts, 272 Ga.App. at 186-187, 612 S.E.2d 1. See Moody v. State, 277 Ga. 676(4), 594 S.E.2d 350 (2004) (statement to police during field investigation qualifies as testimonial). The Court of Appeals found the error to be harmless, however, and we do not disturb that holding.
[19] Farmer v. State, 266 Ga. 869, 870, n. 1, 472 S.E.2d 70 (1996).
[20] See, e.g., Powers, 124 Wash.App. at 101, 99 P.3d 1262 (911 call discussing defendant's completed violations of court order are testimonial).
[21] Crawford, 541 U.S. at 68, 124 S.Ct. 1354.
[22] Pitts, 272 Ga.App. at 187, 612 S.E.2d 1. | 01-03-2023 | 10-30-2013 |
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280 Ga. 372
HARRIS
v.
The STATE.
No. S05A1519.
Supreme Court of Georgia.
March 13, 2006.
Reconsideration Denied April 13, 2006.
*563 James David Michael, Blend & Michael, LLC, Decatur, for appellant.
Robert M. Coker, Asst. Dist. Atty., Gwendolyn Keyes Fleming, Dist. Atty., Thurbert E. Baker, Atty. Gen., Julie Amanda Adams, Asst. Atty. Gen., for appellee.
BENHAM, Justice.
Anthony Harris appeals from his conviction for malice murder arising from the shooting death of Quincy King.[1] The evidence at trial, much of it from Harris's companions on the day of the shooting, showed that Harris, while riding in a friend's car, saw King at a gas station. Harris recognized King as a member of a group of men who had beaten him a month earlier. Harris instructed the driver, Tabious Jackson, to *564 return to the place they had dropped off the car's owner, Chanthavisouk Soumphonphakdy. Once Soumphonphakdy was back in the car, Harris borrowed his pistol and directed Jackson to return to the gas station. At the station, Harris got out of the car, confronted the victim, taunted him and shouted obscenities, then shot him four times as King sought to run away. The bullet that inflicted the fatal wound entered King's back and penetrated his heart and one lung. Harris returned to the car and Jackson drove away.
1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find Harris guilty beyond a reasonable doubt of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Slaughter v. State, 278 Ga. 896, 608 S.E.2d 227 (2005).
2. Harris contends the trial court erred in refusing to give his requested charge on voluntary manslaughter, arguing there was at least slight evidence he killed King "solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. . . ." OCGA § 16-5-2(a). The purported provocation was the month-old beating. The trial court's refusal to give the charge was based on the portion of OCGA § 16-5-2(a) immediately following the portion relied upon by Harris and quoted above: "[I]f there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder." Harris contends the question of whether a month was sufficient cooling time was solely for the jury, but this Court held in Aldridge v. State, 258 Ga. 75, 76(2), 365 S.E.2d 111 (1988), overruled on other grounds, Smith v. State, 263 Ga. 224(4), 430 S.E.2d 579 (1993), that the trial court in that case "could conclude as a matter of law that the incident did not constitute even slight evidence of provocation because of the three and a half day cooling off period between the incident and the killing. [Cit.]" Harris argues that holding does not apply here because he had not seen King since the beating a month earlier and, therefore, had not had time to cool off. He cites no authority for this theory and we have found none requiring the cooling period to include ongoing contact between the accused and the victim between the time of the alleged provocation and the killing. In Aldridge, there is no indication that Aldridge had seen the victim between the time the victim hit him with a beer bottle and the time Aldridge saw the victim, chased him into a grocery store, and shot him dead. We conclude that Aldridge applies to the present case and supports the trial court's refusal to charge on voluntary manslaughter.
3. Harris enumerates as error the trial court's rejection of the ground of his motion for new trial alleging ineffective assistance of trial counsel. Specifically, Harris complains of the quality of trial counsel's cross-examination of Jackson and Soumphonphakdy and of trial counsel's failure to present alibi witnesses.
In order to establish ineffectiveness of trial counsel . . ., appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. [Cit.] There is a strong presumption that the performance of trial counsel "falls within the wide range of reasonable professional assistance." [Cit.] The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. [Cit.]
Washington v. State, 276 Ga. 655, 658(3), 581 S.E.2d 518 (2003). The trial court in the present case concluded that trial counsel's performance fell within the wide range of reasonable professional conduct.
With regard to the cross-examination of the two witnesses who testified they were with Harris when he killed King, Harris contends trial counsel was ineffective because he did not ask Soumphonphakdy whether he was aware of the maximum and minimum sentences he was facing for charges pending at the time of trial, did not ask Soumphonphakdy whether he was aware of the ramifications of a recidivist sentence, did not question Jackson about his criminal history or whether he still had charges pending, and failed to introduce certified copies of the witnesses' convictions. To demonstrate that *565 counsel's failure to address those aspects of the witnesses' credibility was a matter of omission rather than strategy, Harris points to trial counsel's testimony at the motion for new trial hearing that he did not remember why he did not pursue the question of maximum and minimum sentences for pending charges since he usually did under such circumstances, and trial counsel's conclusion from reading the transcript that he should have done so in this case. However, the record also shows that the witnesses' criminal records were put before the jury by the State, as was the fact that Soumphonphakdy had been offered a five-year sentence for his pending charges in exchange for his testimony. Trial counsel's cross-examination of Soumphonphakdy addressed his criminal history and his awareness of recidivist sentencing, establishing that Soumphonphakdy had at least five felony convictions and had been on probation but had it revoked for violating its terms, that he was a crack addict, that he himself would not trust a crack addict's word, and that he initially lied to the police about the identity of King's killer. Trial counsel's cross-examination of Jackson established that he said nothing to the police about Harris shooting the victim until he himself became a suspect in the killing, and that he then told the police Harris had shot King. In closing argument, trial counsel emphasized the lack of credibility of both witnesses based on their criminal records and their untruthful conduct regarding the investigation of the killing. Trial counsel testified at the motion for new trial hearing that he had been assured by Harris and his family that Jackson's testimony would be favorable to Harris, but was unable to locate Jackson until he appeared at trial and testified that Harris killed King.
"`The standard regarding ineffective assistance of counsel is "not errorless counsel and not counsel judged ineffective by hindsight, but counsel . . . rendering reasonably effective assistance." [Cits]" Jackson v. State, 276 Ga. 94, 96(6), 575 S.E.2d 447 (2003). While hindsight made clear to trial counsel that he could have taken a different approach to the issue of credibility, the record of the trial and the testimony at the motion for new trial hearing support the trial court's holding that trial counsel's representation of Harris fell within the wide range of reasonable professional assistance.
Hindsight did not vary trial counsel's view of the decisions not to introduce the certified copies of convictions and not to present an alibi defense based on the testimony of family members that Harris was with them. Counsel testified regarding the certified copies of convictions that since the fact of the convictions was already before the jury, he refrained from offering evidence of the convictions so as to preserve the right to the last closing argument. Regarding the alibi defense, counsel testified at the motion for new trial hearing that he is generally skeptical of alibi testimony when there is contrary direct testimony, that his impression of the witnesses who offered an alibi in this case was that they would not be credible, that he shared with Harris his concerns about presenting their testimony, and that he believed Harris concurred with the decision not to present that testimony. The trial court held, in denying the motion for new trial, that it would not second-guess counsel's strategic and tactical decisions at trial. That holding comports with the law: "[C]ounsel's decisions that amount to reasonable trial strategy do not constitute deficient performance." Harris v. State, 279 Ga. 522, 528(6), 615 S.E.2d 532 (2005). The record and the law support the trial court's holding that trial counsel rendered reasonably effective assistance to Harris at trial.
Judgment affirmed.
All the Justices concur.
NOTES
[1] The fatal shooting occurred on September 10, 2002. Harris was arrested on September 25, 2002, and the DeKalb County grand jury indicted him on January 3, 2003, for malice murder, felony murder (aggravated assault), and aggravated assault. At a trial conducted May 27-29, 2003, the jury found Harris guilty on all counts. The trial court sentenced Harris to life imprisonment for malice murder, on account of which the felony murder verdict was vacated by operation of law, and the aggravated assault verdict merged into the malice murder conviction. Harris's motion for new trial, filed June 12, 2003, and amended by present appellate counsel on September 16, 2004, was heard by the trial court on September 20, 2004, and was denied by an order filed on October 6, 2004. Pursuant to a notice of appeal filed November 5, 2004, the appeal was docketed in this Court on June 7, 2005, and was submitted for decision on the briefs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338069/ | 627 S.E.2d 907 (2006)
277 Ga. App. 870
BLACKWOOD
v.
The STATE.
No. A05A2120.
Court of Appeals of Georgia.
March 3, 2006.
*909 Bryman, Clerke & Kent, William H. Clerke IV, Marietta, for appellant.
Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, Thurbert E. Baker, Attorney General, for appellee.
ADAMS, Judge.
Jacob W. Blackwood appeals from his conviction on one count of trafficking in methamphetamine. We affirm.
1. Blackwood first argues that the state failed to prove that he was guilty of trafficking in methamphetamine because there was no evidence that he had authority or control over either the methamphetamine or the drug transaction. Further, he asserts that the state failed to prove the weight of the methamphetamine sold to Agent King as required by the trafficking statute and contends that the trial court erred in directing a verdict on this ground.
"The standard for reviewing the denial of a motion for a directed verdict of acquittal and for considering the sufficiency of the evidence is the same. We view the evidence in the light most favorable to the verdict, and [Blackwood] no longer enjoys the presumption of innocence." (Footnotes omitted.) Ellzey v. State, 272 Ga.App. 253, 258(2), 612 S.E.2d 77 (2005). "And as long as there is some competent evidence, even though contradicted, to support each fact necessary for the state's case, the jury's verdict will be upheld." (Footnote omitted.) Goodrum v. State, 269 Ga.App. 397, 401(3), 604 S.E.2d 251 (2004).
So viewed, the evidence shows that in May 2002 Carla King, an agent with the Georgia Bureau of Investigation ("GBI"), was assisting the West Georgia Drug Task Force in making undercover narcotic purchases. In that capacity, Agent King made several undercover purchases of methamphetamine from Jody Ballew during May 2002. On May 29, she called Ballew to try to set up another purchase of methamphetamine. Ballew returned the call on May 31, and they arranged to meet later that day along with James Clark at Ballew's house, where the plan was for King to purchase 1 1/4 ounces of methamphetamine for $1,300.
When King arrived at the house, accompanied by another GBI undercover agent, Ballew and Blackwood were in the front yard. The agents were introduced to Clark, and Ballew and Blackwood left for about 20 minutes, saying they were going to the store. Although Agent King did not know where they went, she testified that in her experience, participants in a drug sale may, as a precaution, leave for a short period to see if there are any police officers in the area monitoring the sale.
After Ballew and Blackwood left, the agents went inside the house with Clark and spent time talking in the kitchen. Agent King got the impression that Clark was stalling. During this time, Clark received a phone call but Agent King did not know who called him. After the agent asked about buying drugs, Clark led her into a small bathroom where he placed a block of methamphetamine on the counter. Agent King estimated that the block weighed approximately three to four ounces. Clark began cutting the block with a pocketknife, but had some difficulty because the block was quite hard.
When Ballew and Blackwood returned to the house, Blackwood came into the bathroom and began to assist Clark. After he arrived, Clark laid out four lines of the drug and invited the agents and Blackwood to "snort" a line with him. The agents declined and no one sampled the drug at that time. While Clark continued cutting, Blackwood helped weigh the drug, using a scale furnished by the GBI agents. He also helped put the drug in bags. Agent King said the two acted "like partners ... just kind of helping each other with the transaction." Blackwood would weigh the drug cut by Clark, take it off the scale and Clark would add more methamphetamine, then Blackwood would put it back on the scale. Agent King said she spoke more with Blackwood than with Clark during the transaction, including discussions of the drug and how to bag and weigh it. The weighing process continued until they got the correct amount. Clark then scraped the untouched lines of *910 methamphetamine into the bags, and they tied it into two corner baggies. Clark and Blackwood used two baggies because the drug would not fit into one.
Afterward, Agent King paid Clark for the methamphetamine. Clark counted the money three times, as Blackwood stood by, and then laid it on the counter beside the large block of methamphetamine. Clark put the baggies into a cigarette box and handed it to King. She began to negotiate another transaction with Clark, but Blackwood did not participate in these negotiations. After the agents returned to their car, Agent King performed a field test on the methamphetamine and put the bags containing the drug into an evidence bag.
Deneen Elizabeth Scott, a GBI forensic chemist, testified that she analyzed the material purchased by Agent King and determined that it weighed a total of 32.64 grams and tested positive for methamphetamine.
Clark testified for the defense, stating that Blackwood had no knowledge of the proposed drug transaction when he accompanied Clark to Ballew's house that day. Blackwood did not participate in acquiring the drugs for sale or in negotiating the transaction. While Ballew and Blackwood were at the store, Clark initiated the drug transaction with Agent King. When Blackwood got back, he walked into the middle of the transaction. He said that Blackwood merely took the methamphetamine that Clark cut for him, but had nothing to do with the drug transaction with Agent King. He said Blackwood looked "kind of surprised" when he saw the amount of methamphetamine in the bathroom. Clark also said that Blackwood did not assist in putting the methamphetamine into bags; he was not there when the money was exchanged; and he did not receive any money from the transaction. He said that Blackwood's involvement with the scales consisted of suggesting a trick that Agent King might use "to get over on somebody," but he never touched the scales.
We find that the evidence was sufficient to sustain Blackwood's trafficking conviction. Any person who "knowingly sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine... commits the felony offense of trafficking in methamphetamine...." OCGA § 16-13-31(e). The evidence clearly established the sale of more than 28 grams of methamphetamine. Although Blackwood argues that the state failed to prove how much methamphetamine was actually weighed at the time of the sale, that fact is irrelevant. The state showed that Agent King paid $1,300 and in exchange received 32.64 grams of methamphetamine, which is sufficient to meet the requirements of the statute. Thus, the trial court did not err in denying Blackwood's motion for directed verdict on this ground.
Blackwood also argues that the state failed to show that he either possessed or sold the methamphetamine as required by the trafficking statute. He notes that there was no evidence that he either arranged the sale or received any money in connection with the purchase. But "[u]nder OCGA § 16-2-21, one who intentionally aids and abets in the commission of a crime is a party to the crime and may be convicted of the commission of the crime." Granados v. State, 244 Ga.App. 153, 154(1), 534 S.E.2d 886 (2000). "While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." (Citation and punctuation omitted.) Murphy v. State, 272 Ga.App. 287, 290(2), 612 S.E.2d 104 (2005). Although a person will not be presumed to act with criminal intent, the trier of fact "may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted." (Footnote omitted.) Brown v. State, 245 Ga.App. 706, 708, 538 S.E.2d 788 (2000).
The state presented evidence that when Blackwood returned to the house, he jumped into the middle of the sale, working in concert with Clark to weigh and bag the methamphetamine for purchase. Although Clark testified that Blackwood had no prior knowledge *911 of or participation in the sale, the jury was not required to believe his testimony. Goodrum v. State, 269 Ga.App. at 402(3), 604 S.E.2d 251. Accordingly, we find that the state presented sufficient evidence to sustain Blackwood's conviction for trafficking in methamphetamine. See Granados v. State, 244 Ga.App. at 153-154(1), 534 S.E.2d 886; Height v. State, 221 Ga.App. 647, 647-648(1), 472 S.E.2d 485 (1996); Gay v. State, 221 Ga.App. 263, 264-265(1)(a), 471 S.E.2d 49 (1996).
2. Blackwood also contends that the trial court erred in denying his motion for directed verdict on the ground that the district attorney's office destroyed an audiotaped recording of the drug transaction. An evidence custodian with the Carroll County Sheriff's Department testified that he was contacted by the district attorney's office and asked to destroy numerous audio and videotapes, including the audio recording at issue and a separate videotape related to this incident. After the custodian destroyed the audiotape, he received word that the direction to destroy these tapes had been a mistake, and the videotape was preserved. The videotape was returned to the district attorney's office and was played at trial, although the video was shot from the agents' car and did not show the actual drug transaction.
"The State has a constitutional obligation to preserve evidence that might be expected to play a significant role in the suspect's defense." (Footnote omitted.) Giraudy v. State, 252 Ga.App. 219, 220(1), 555 S.E.2d 874 (2001). But "the failure to preserve evidence does not constitute a constitutional violation, unless it is shown that the missing evidence was potentially useful to the defense and was destroyed in bad faith on the part of the police. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)." Dixon v. State, 275 Ga. 232, 233(4), 564 S.E.2d 198 (2002). Accordingly, "the prosecution may be penalized if it loses or destroys evidence that could potentially have been helpful to the defense [only] if the defense shows that the evidence was material and that the State acted in bad faith in failing to preserve it." (Punctuation and footnote omitted.) Giraudy v. State, 252 Ga. App. at 220(1), 555 S.E.2d 874. "To be material, the evidence must have had an apparent exculpatory value before it was lost, and be of such a nature that the defendant cannot obtain comparable evidence by other reasonable means." (Citations omitted.) Hannah v. State, 278 Ga. 195, 198(3), 599 S.E.2d 177 (2004).
While an audiotape may have apparent exculpatory value under certain circumstances, Blackwood has failed to establish that the tape in this case had such value. He presented no evidence as to whether anyone had ever listened to the tape or whether it was even audible. Moreover, the audiotape would only have recorded what was said during the transaction. Blackwood's defense hinged on Clark's testimony that Blackwood had no prior knowledge of the drug transaction; that Blackwood looked "kind of" surprised when he saw the amount of methamphetamine in the bathroom; and that he did not touch the scales or assist in bagging the drugs. But Blackwood fails to show how the audiotape would have conveyed to the jury either his expression when he entered the bathroom or whether he was touching the scales and bagging methamphetamine during the transaction. Nor did Blackwood establish any bad faith on the state's part in destroying this evidence.
Accordingly, we find no error in the trial court's denial of a directed verdict on this ground. "[W]e cannot say that the State's failure to turn [the audiotape over to Blackwood] caused him the kind of prejudice that undermined confidence in the outcome of the trial or which created a reasonable doubt of guilt which did not otherwise exist." (Citations omitted.) Ely v. State, 275 Ga.App. 708, 711(1)(a), 621 S.E.2d 811 (2005).
3. Blackwood also contends that the trial court erred in denying his motion for a mistrial based upon the actions of one of the jurors at his trial.
At one point during the jury deliberations, Juror Rashonda Chism requested that she be excused from the jury. She told the judge that everyone in the jury room "has one decision and I'm the only one with a different decision and I just can't at this point say yea *912 or nay. I don't think that there is enough evidence to convict this guy of trafficking. I wouldn't feel good tonight if I said he was guilty." In response, the trial judge stated, "We will have you go back to the jury room and continue your work as a juror."
A short time later, the jury returned a guilty verdict, and the clerk of court polled the jury. When Juror Chism was asked whether the guilty verdict was her verdict in the jury room, she responded, "No, sir." The trial judge questioned Juror Chism further:
The Court: This was not your verdict in the jury room?
Juror Chism: Not initially, but it is now.
The Court: Did you give this verdictlet me read you the verdict again. The State of Georgia versus Jacob W. Blackwood. We, the jury find the Defendant Jacob W. Blackwood guilty of the offense of violation of [the] Georgia Controlled Substances Act trafficking methamphetamine. Was this your verdict in the jury room?
Juror Chism: Yes, sir.
The Court: Is this still your verdict?
Juror Chism: Yes, sir.
The Court: Was it freely and voluntarily given?
Juror Chism: Yes, sir.
Blackwood's trial counsel moved for a mistrial and asked for the opportunity to voir dire Juror Chism further. The trial court denied the motion.
As an initial matter, we find nothing improper or unduly coercive in the trial court's instruction to the juror that she continue her work as a juror. See Jones v. State, 273 Ga. 231, 234-235(5), 539 S.E.2d 154 (2000); Hector v. State, 266 Ga.App. 80, 81-82(2), 596 S.E.2d 189 (2004). Nor do we find any error in the trial court's conduct of the jury poll. "The object of [a jury] poll is to ascertain before the public and the prisoner that the verdict agreed upon in the jury room is still the unanimous verdict of the jury." (Citations omitted.) Benefield v. State, 278 Ga. 464, 465, 602 S.E.2d 631 (2004). Our Supreme Court has held that the minimum requirements of a jury poll are met by asking the questions, "Was that your verdict?" and "Is it now your verdict?" Id. Here, the trial court went beyond these minimum requirements in order to determine whether the verdict was unanimous. During this poll, Juror Chism affirmed on two separate occasions that the verdict was hers in the jury room. She also stated that the verdict was still hers and that it was freely and voluntarily given. Thus, the record shows that the verdict in this case was unanimous, and Blackwood's motion for a mistrial was properly denied. See Hudson v. State, 157 Ga. App. 71, 72-73(3), 276 S.E.2d 122 (1981). "The indication of `reservations' does not prevent the verdict from being unanimous. The requirement is that a juror agree to a verdict." (Citations and punctuation omitted.) Rouse v. State, 265 Ga. 32, 34(3), 453 S.E.2d 30 (1995). See also Scruggs v. State, 181 Ga.App. 55, 56(1), 351 S.E.2d 256 (1986) (even "reluctant agreement" in a jury verdict is sufficient).
4. Blackwood's remaining arguments assert that he received ineffective assistance of trial counsel. It appears from the record that Blackwood was represented by his trial counsel at the hearing on the motion for new trial and obtained new appellate counsel only after the trial court denied this motion. "Since the present appeal is the first occasion on which [Blackwood] could have raised the issue of trial counsel's ineffectiveness, the case must be remanded for an evidentiary hearing on this claim." (Citations omitted.) Francis v. State, 275 Ga.App. 164, 166(2), 620 S.E.2d 431 (2005).
Judgment affirmed in part and case remanded in part.
SMITH, P.J., and ELLINGTON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338085/ | 627 S.E.2d 67 (2006)
277 Ga. App. 583
NORTH ATLANTA SCAN ASSOCIATES, INC.
v.
GEORGIA DEPARTMENT OF COMMUNITY HEALTH et al.
No. A05A1668.
Court of Appeals of Georgia.
January 24, 2006.
Reconsideration Denied February 14, 2006.
*68 Arnall, Golden & Gregory, Charles L. Gregory, Jason E. Bring, Atlanta, for appellant.
Thurbert E. Baker, Attorney General, James D. Coots, Assistant Attorney General, Parker, Hudson, Rainer & Dobbs, Thomas D. Watry, Ray & Sherman, John W. Ray, Schreeder, Wheeler & Flint, Alexander J. Simmons, Jr., Atlanta, for appellees.
ELLINGTON, Judge.
North Atlanta Scan Associates, Inc. ("NASA") filed a petition for judicial review of an administrative decision issued by the Georgia Department of Community Health. In that administrative decision, the Department determined that NASA's operation of its diagnostic imaging center without a certificate of need ("CON") violated the State Health Planning Act and ordered that NASA cease operations until it obtained a CON. The Superior Court of Fulton County affirmed the Department's decision, and we granted NASA's ensuing application for discretionary appeal. On appeal, NASA contends the Department lacked the authority to reverse an earlier administrative ruling in which the Department determined that the diagnostic imaging center did not require a CON and that the trial court accordingly erred in affirming the Department's decision. NASA further contends that the trial court erred in failing to require the Department to comply with notice requirements for revocation *69 of a license and in allowing Georgia Alliance of Community Hospitals, Inc. and Diagnostic Imaging of Atlanta, LLC to intervene. For the following reasons, we affirm.
The Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq., provides for the judicial review of final agency decisions and authorizes the superior court to reverse or modify the agency decision only
if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
OCGA § 50-13-19(h). "The [superior] court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Id. The subsection addressing the sufficiency of the evidence, OCGA § 50-13-19(h)(5), "has been interpreted to preclude review if any evidence on the record substantiates the administrative agency's findings of fact and conclusions of law." (Citations and punctuation omitted.) Professional Standards Comm. v. Alberson, 273 Ga.App. 1, 4-5(1), 614 S.E.2d 132 (2005). "Upon further discretionary appeal to this Court, our duty is not to review whether the record supports the superior court's decision but whether the record supports the final decision of the administrative agency." (Citations and punctuation omitted.) Id. at 5(1), 614 S.E.2d 132. "Our function is to determine whether the superior court has in its own final ruling committed an error of law." (Punctuation and footnote omitted.) Ga. Dept. of Community Health v. Freels, 258 Ga.App. 446, 446-447, 576 S.E.2d 2 (2002).
The record shows the following undisputed facts. NASA operates several full service diagnostic imaging centers in metropolitan Atlanta. NASA began providing diagnostic imaging services in December 1988, with its first center located at 4500 North Shallowford Road, Suite 100 ("the old location"). In 1991, the General Assembly amended the State Health Planning Act, OCGA § 31-6-1 et seq. ("the Act"), expanding the scope of required CON review of new health care projects. Ga. L. 1991, p. 1871. Via a letter from the Department's predecessor agency[1] dated January 28, 1992, NASA received a "grandfather exemption" from the new CON requirements for its existing diagnostic imaging center. See OCGA § 31-6-40(c) (exemptions for certain existing providers). By its terms, the exemption was valid only for the location (the old address) and the scope ("[p]rovision of diagnostic imaging services utilizing one magnetic resonance imaging (`MRI') system [valued at approximately $1,480,000], one computerized tomography (`CT') system [valued at approximately $525,000], and any other equipment not subject to CON review") listed in the written exemption.
In 2001, NASA's owner decided to relocate the center because nearby Dunwoody Medical Center was slated to be closed. A replacement site was located at 5505 Peachtree Dunwoody Road ("the new location") which was approximately three miles from the old location. On February 22, 2001, an agent of NASA e-mailed Clyde Reese, the Department's deputy general counsel, to request a "short-form" CON application for the new location. Reese responded that the rule for a "short-form" procedure for relocations had been repealed but that it was possible that the Department could "do something outside of CON review." Reese asked that NASA submit a letter detailing the history of the diagnostic imaging center and its proposed move, including "the equipment to be used at *70 the new location, the capital expenditure incurred, etc."
On March 1, 2001, with the landlord at the new location demanding proof of a CON or a CON exemption before finalizing a lease agreement, NASA submitted a request for a "letter of nonreviewability" ("LNR"), a formal Department determination that its planned relocation of the center was exempt from CON review. In its request, NASA informed the Department that its existing equipment would be moved to the new location and that the same services would be offered. NASA informed the Department that necessary renovations to the new site would cost approximately $324,720[2] and that moving and installing the equipment would cost less than $100,000. On March 9, 2001, the Department issued NASA an LNR in which it determined that the relocation was not subject to prior CON review and approval because the services to be offered at the new location would not be considered a new institutional health service under the Act. The Department based this opinion on NASA's representations that relocating the center would not involve a capital expenditure over the applicable threshold ($1,155,881 at that time)[3] and that NASA was not going to purchase or lease new diagnostic equipment but would use the same equipment it used at the old location.
After the Department issued the March 9, 2001 LNR but before the relocation of the center in May 2002, the center's diagnostic imaging equipment began malfunctioning and needed to be replaced. The CT scanner was replaced before the move with a new unit costing over $1.2 million. On May 2, 2001, NASA requested an LNR in connection with the acquisition of a new MRI system. The Department issued an LNR, finding the new MRI system fell within the replacement equipment exemption. Because of the cost of installation, NASA delayed installing the new MRI system, which cost $1,975,664, until the new location was ready.
On July 3, 2002, within two months after the move, the Georgia Alliance of Community Hospitals, Inc. ("GACH")[4] notified the Department that NASA was using a new CT scanner and a new MRI system at the new location, contrary to its representations in the March 1, 2001 request for an LNR. GACH asked the Department to direct NASA to cease and desist operation at the new location.
In February 2003, after NASA had been operating in the new location for about nine months, the Department conducted an inspection of the new location. NASA employees informed the Department's investigators of the replacement of the CT scanner and of the MRI system and of the first installation of the MRI system in connection with the move. The investigators were also aware that the cost of the replacement equipment, although believed to be exempt from review, exceeded the equipment threshold for CON review.
On February 28, 2003, Diagnostic Imaging of Atlanta, LLC ("DIA"), which competes with NASA, filed a mandamus petition against the Department and the Commissioner, seeking to compel the Department to enforce the Act. DIA's action alleged that NASA's relocation and the cost of the replacement equipment required a CON. On March 3, 2003, the Department responded to GACH's inquiry in a letter summarizing its inspection of the new location. In that letter, the Department stated that the replacement of NASA's MRI system and CT scanner was exempt from prior CON review and approval pursuant to the replacement equipment exemption[5] and concluded that the center was not violating any CON laws or rules. On May 29, 2003, GACH filed a mandamus action, seeking a declaration that NASA's relocation violated the Act. In responding to the *71 two mandamus actions, the Department denied that NASA was required to undergo CON review for the relocation of its center and the replacement of its equipment and maintained that its LNR decision was correctly issued to NASA.
While the mandamus actions were pending, NASA prepared and submitted to the Department a CON application for the relocation of its diagnostic imaging center in which it claimed that the project was exempt from CON approval and review pursuant to the replacement equipment exemption but nonetheless, "out of an abundance of caution," sought CON approval for the project. On November 6, 2003, the Department rejected NASA's CON application, "due to pending litigation associated with the instant relocation project."
On November 14, 2003, the Department issued a cease and desist letter directing NASA to cease operating its diagnostic imaging center at the new location. The Department found, based on "evidence developed during discovery in [the mandamus] cases," that "NASA's relocation of its facility and purchase of new equipment in excess of the threshold for CON review mandates that NASA's center is subject to the CON review and approval process." NASA requested an administrative hearing to appeal the cease and desist letter, which stayed the deadline for NASA to cease operations. On April 19, 2004, the Hearing Officer issued an initial decision upholding the cease and desist letter and finding the LNR was issued in violation of the Act. NASA filed an application for Department review, and, on June 18, 2004, the Commissioner issued the Department's final decision adopting the Hearing Officer's initial decision and supplementing it with additional conclusions of law. NASA filed a petition for judicial review with the Superior Court of Fulton County, which the court denied in the order appealed here.
1. NASA contends the trial court erred in failing to find that the March 9, 2001 LNR was correct. This issue, however, cannot be decided on this record.
The Department based the March 9, 2001 LNR on its findings that NASA's relocation did not trigger CON review because NASA would not make capital expenditures above the applicable threshold ($1,155,881 in March 2001) and because NASA would not purchase or lease new diagnostic or therapeutic equipment above the applicable threshold ($642,152 in March 2001), citing OCGA § 31-6-2(14)(B) and (F).[6] Apparently, the Department did not consider whether the project was subject to CON review pursuant to OCGA § 31-6-2(14)(H). Under that subsection and related sections,[7] a project qualifies as a "new institutional health service" subject to CON review if it will begin providing radiology and diagnostic imaging in a setting which is not part of a hospital using diagnostic equipment with a value in excess of the equipment threshold. In addition, a CON grandfather exemption is valid only for the location for which it is granted. Phoebe Putney Mem. Hosp. v. Roach, 267 Ga. 619, 620-621(1), 480 S.E.2d 595 (1997). See also HCA Health Svcs. v. Roach, 263 Ga. 798, 801(3)(b), n. 5, 439 S.E.2d 494 (1994) (a CON is valid only for the defined scope and location for which it is granted). It follows that any relocation of a diagnostic imaging center which had a grandfather exemption triggers CON review if, inter alia, the relocated center would be using an MRI system or CT scanner worth more than the current equipment threshold, regardless of when, how, or by whom the equipment had been acquired. Although the record shows that in 1992 NASA's MRI system was valued at approximately $1,480,000 and its CT scanner was valued at approximately $525,000, the record contains no evidence of the equipment's value in March 2001. Without this information, we cannot determine whether the March 9, 2001 LNR was correct when issued.
*72 Furthermore, even if NASA's old MRI system and CT scanner were each worth less than the equipment threshold in March 2001 ($642,152) so that the March 9, 2001 LNR was correct when issued, the LNR did not purport to advise NASA with regard to the situation that had developed by the time the move actually took place. Ultimately, NASA did not move the diagnostic equipment it had used at the old location, as it represented to the Department it would do. Instead, at the new location, NASA used new equipment which exceeded the equipment threshold. NASA contends (as the Department concluded on March 3, 2003) that even with the new equipment the new location did not qualify as a "new institutional health service" because the new MRI system and CT scanner fell within the exemption for replacement equipment provided in OCGA § 31-6-47(a)(10). That Code section provides that the Act shall not apply to "[e]xpenditures for the minor repair of a health care facility, or parts thereof or services provided or equipment used therein, or replacement of equipment, including, but not limited to, CT scanners." While this exemption may have applied to use of the new equipment at the old location, we find no basis for concluding that the General Assembly intended that the first placement or installation of equipment at a new facility could qualify as "replacement of equipment." Thus, even if the March 9, 2001 LNR was correct when issued for relocation of the center with the old equipment, the LNR did not apply to the project which NASA actually implemented in May 2002, that is, relocation of its center with new equipment.
2. NASA contends the March 9, 2001 LNR, even if it were not legally correct, was a final agency decision which the Department lacked the authority to revoke and therefore that the Department's decision to enforce the cease and desist order was made upon unlawful procedure or was affected by another error of law. NASA cites to OCGA § 31-6-47(c), which provides: "By rule, the department shall establish a procedure for expediting or waiving reviews of certain projects the nonreview of which it deems compatible with the purposes of this chapter, in addition to expenditures exempted from review by this Code section." NASA contends that it complied with the procedure the Department established under this authority, Rule 272-2-.07(2),[8] when it obtained the March 9, 2001 LNR.
Even assuming the March 9, 2001 LNR was a final agency decision which the Department lacked the authority to revoke, however, the LNR (like a CON) was valid only for the defined scope for which it was granted. The LNR did not apply after NASA changed the scope of the project by replacing the equipment. Accordingly, by issuing the cease and desist order, the Department did not "revoke" the already defunct LNR. NASA has not demonstrated any unlawful procedure or other error of law.
3. NASA contends the Department's conduct and communications before the cease and desist letter amounted to a license or permit for NASA to operate its diagnostic imaging center at the new location and that the Department's decision to revoke that license without providing the notice required by OCGA § 50-13-18(c)[9] was made upon unlawful *73 procedure or was affected by another error of law.
For purposes of OCGA § 50-13-18(c), a license is defined as "the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law." OCGA § 50-13-2(3). Arguably, a CON (or CON exemption) is a form of permission required by law for projects subject to CON review. Indeed, the Act requires notice and a fair hearing before a CON may be revoked. OCGA § 31-6-45(a). On the other hand, nothing in the Act or related regulations requires a person who is developing a health care project or offering a health care service which is not subject to CON review to obtain an LNR or any other type of approval from the Department. Because an LNR is not a form of permission required by law, any revocation of the March 9, 2001 LNR was not subject to the notice requirements of OCGA § 50-13-18(c).
4. NASA further contends that the Department and the trial court erred in allowing GACH and DIA to intervene. The record shows that during the course of NASA's administrative appeal of the November 14, 2003 cease and desist letter the Department's hearing officer granted the motions of GACH and DIA to intervene. Later, during the course of NASA's petition for review of the Department's final decision upholding the cease and desist letter, the trial court entered an order "confirming" GACH's and DIA's status as parties, declaring that GACH and DIA "have been and shall be permitted to be participants and parties to this Petition for Judicial Review." The Administrative Procedure Act gives a hearing officer the discretion to dispose of motions to intervene. OCGA § 50-13-13(a)(6). A CON applicant's competitors have standing to oppose a CON application and to administratively appeal a decision granting a CON application. OCGA § 31-6-44(c); North Fulton Med. Center v. Roach, 263 Ga. 814, 815(2)(a), 440 S.E.2d 18 (1994). Similarly, a CON applicant's competitors have an interest in defending the denial of a CON application or, as here, a cease and desist letter. See OCGA § 50-13-19(a) (judicial review of administrative decisions). We find no abuse of discretion in the decisions of the hearing officer and the trial court to allow NASA's competitors to actively participate in the hearings.
Judgment affirmed.
SMITH, P.J., and ADAMS, J., concur.
NOTES
[1] In 1992, the Act was administered by the State Health Planning Agency ("SHPA"). In 1999, the General Assembly merged SHPA and several other agencies to form the Department. OCGA § 31-5A-1 et seq.; Ga. L. 1999, p. 296, § 1.
[2] Ultimately, the renovations cost approximately $480,000.
[3] OCGA § 31-6-2(14)(B).
[4] According to its president, GACH collectively represents private nonprofit and public community hospitals and, among other activities, seeks strong enforcement of the Act so that diagnostic, treatment, and rehabilitation centers will not "cherry-pick" profitable patients, leaving the community hospitals to serve a disproportionate share of the "medically indigent."
[5] OCGA § 31-6-47(a)(10).
[6] Note: by the time the center actually moved in May 2002, the threshold had increased to $694,556.
[7] See OCGA §§ 31-6-2(5) (definition of "clinical health services"), (7.1) (definition of "diagnostic, treatment, or rehabilitation center"), (8) (definition of "health care facility"), (14)(H) (equipment value threshold for diagnostic, treatment, or rehabilitation centers to satisfy definition of "new institutional health service"); 31-6-40(a) (certificate of need required for specified new institutional health services or health care facilities).
[8] At the relevant time, Rule 272-2-.07(2) (now repealed) provided in part:
Pursuant to OCGA § 31-6-47(c), if a person believes or has reason to believe that the application of an Agency rule or statutory provision may directly affect or impair the legal rights of that person as to some proposed action or course of conduct being considered by that person (including, but not limited to, determinations regarding reviewability, grandfathering decisions, and relocation or replacement determinations), such person may request a written determination from the Agency regarding the application of such Agency rule or statutory provision upon that person's proposed action or course of conduct.... [T]his rule shall not be construed as providing an administrative remedy for decisions made by the Agency pursuant to Code Section 31-6-43 which involve the approval or denial of applications for certificates of need.
Ga. Comp. R. & Regs. r. 272-2-.07(2) (1994).
[9] No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has sent notice, by certified mail or statutory overnight delivery to the licensee, of individual facts or conduct which warrant the intended action and the licensee has been given an opportunity to show compliance with all lawful requirements for the retention of the license. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338086/ | 627 S.E.2d 846 (2006)
277 Ga. App. 768
DE LOUIS
v.
SHEPPARD.
No. A05A1906.
Court of Appeals of Georgia.
February 28, 2006.
Clifford de Louis, pro se.
Alan Mullinax, Stone Mountain, for appellee.
RUFFIN, Chief Judge.
Clifford de Louis appeals from the entry of a stalking protective order against him. He *847 challenges the sufficiency of the evidence and alleges that the trial court erred in failing to sequester the witnesses and in ordering him to undergo a psychological evaluation and to pay attorney fees. We affirm.
In reviewing the sufficiency of the evidence, we do not weigh the evidence or assess witness credibility, and "we construe the evidence in favor of the findings of the trier of fact."[1] The evidence shows that de Louis and Alice Sheppard are next-door neighbors in a residential subdivision. Sheppard filed a petition for relief under the stalking statute[2] against de Louis, alleging that he repeatedly made lewd gestures toward her, blared loud music at her house, and menacingly stared at her. The trial court granted a temporary protective order and scheduled a hearing on Sheppard's petition. De Louis represented himself at the hearing. Sheppard, her husband, and her adult daughter testified, as well as several neighbors and friends who had witnessed de Louis's behavior.
The evidence showed that the de Louis and Sheppard families had a friendly relationship until approximately February 2004. At that time, de Louis physically confronted Sheppard about a neighborhood issue in a way she felt was sexually intimidating. Subsequently, he began blaring loud music from an open window toward the Sheppard house. This occurred at least five days a week. Sheppard differentiated this behavior from times she might hear music from the de Louis house, but at an appropriate volume. Frequently, de Louis would "blast" music toward the Sheppard house when they were outside in their yard or at their pool. He also ran his leaf blower for no apparent reason other than to harass Sheppard, as there were no leaves in his yard. Some of this behavior was recorded on videotape and played for the trial court.
Sheppard and others testified that de Louis would stare at her for a considerable length of time from his deck or driveway when she was outside. This occurred many times, and Sheppard felt threatened by him. On two occasions, de Louis put his hand in his trousers or grabbed his crotch and made lewd motions toward Sheppard. On separate occasions, de Louis gestured in this way toward Sheppard's daughter and a male visitor. On one occasion, when Sheppard's son took off his shirt at their pool, de Louis called out from his yard: "Ooh-la-la, young flesh."
Sheppard testified that she was scared by de Louis's behavior. She and her husband both stated that they felt de Louis's harassment of them was escalating. Sheppard's daughter also testified that she was scared for herself and for her mother.
The trial court granted a protective order to Sheppard and required de Louis to submit to a mental health evaluation and to pay Sheppard's attorney fees of $4,000. De Louis appeals, arguing that: (1) there was insufficient evidence of stalking; (2) the trial court abused its discretion by failing to sequester the witnesses; and (3) the trial court abused its discretion by ordering him to undergo a psychological evaluation and to pay attorney fees.[3]
1. De Louis contends that, even if it occurred, the behavior in which he is alleged to have engaged does not constitute stalking because (1) he did not follow, place under surveillance, or contact a person as required by the stalking statute; (2) the behavior did not place the victim in reasonable fear for the safety of herself and her immediate family; and (3) the behavior occurred at his residence. We disagree.
Stalking is defined as "follow[ing], plac[ing] under surveillance, or contact[ing] another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person."[4] According to the statute, harassing and intimidating
*848 means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person's safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.[5]
At or about a place or places "shall include any public or private property occupied by the victim other than the residence of the defendant."[6]
We have found sufficient evidence of stalking when the perpetrator "placed [the victim] under surveillance, took pictures of her, and shouted at her";[7] followed the victim to another's residence and drove up and down the road in front of the residence;[8] or sent sexually explicit letters to the victim's home.[9] Here, the evidence showed that de Louis contacted the victim without her consent.[10] The pattern, frequency, and nature of the contact was such that the trial court could conclude it was done for the purpose of harassing and intimidating Sheppard.[11] Moreover, there was sufficient evidence that this contact put Sheppard in reasonable fear for her safety or that of her family, as de Louis had aggressively confronted her on a previous occasion and made threatening sexual gestures toward her.[12]
While we agree with de Louis that some of his actions, such as directing loud music or noise toward Sheppard's house, may not constitute stalking in and of themselves, evidence of this behavior was admissible "to show bent of mind, intent, and course of conduct between the accused and the victim."[13] And while de Louis was at his own residence when the stalking occurred, the relevant inquiry is whether the victim was at de Louis's residence, which she was not. Accordingly, the evidence was sufficient to support the entry of a stalking protective order against de Louis.[14]
2. De Louis asserts the trial court abused its discretion by failing to sequester the witnesses at the hearing. There is nothing in the record to suggest that de Louis invoked the rule of sequestration; consequently, this enumeration of error is without merit.[15]
3. De Louis alleges the trial court abused its discretion by ordering him to undergo a psychological evaluation and to pay attorney fees. OCGA § 16-5-94 expressly provides, however, that the trial court may award costs and attorney fees and order a party "to receive appropriate psychiatric or psychological services" as part of a protective order in a stalking case.[16] Under the circumstances, the trial court did not abuse its discretion in awarding Sheppard $4,000 in attorney fees and in requiring de Louis to undergo a mental health evaluation.[17]
*849 4. Sheppard's request that we assess frivolous appeal penalties against de Louis under Court of Appeals Rule 15(b) is denied.[18]
Judgment affirmed.
JOHNSON, P.J., and BARNES, J., concur.
NOTES
[1] Hall v. State, 226 Ga.App. 380, 487 S.E.2d 41 (1997).
[2] OCGA § 16-5-90 et seq.
[3] De Louis, having been made aware of the amended protective order issued by the trial court, withdrew his enumeration of error based on the issuance of a protective order for longer than a 12-month period.
[4] OCGA § 16-5-90(a)(1).
[5] Id.
[6] Id.
[7] Johnson v. Smith, 260 Ga.App. 722(2), 580 S.E.2d 674 (2003).
[8] See Benton v. State, 256 Ga.App. 620, 621-622(1), 568 S.E.2d 770 (2002).
[9] See Jerusheba v. State, 226 Ga.App. 696, 697-698, 487 S.E.2d 465 (1997).
[10] See Robinson v. State, 216 Ga.App. 816, 817(1), 456 S.E.2d 68 (1995) ("To contact is readily understood by people of ordinary intelligence as meaning to get in touch with; communicate with.") (punctuation omitted).
[11] See Thomas v. State, 276 Ga.App. 79, 80(1), 622 S.E.2d 421 (2005); Adkins v. State, 221 Ga. App. 460, 461-462, 471 S.E.2d 896 (1996).
[12] See Jerusheba, supra at 698, 487 S.E.2d 465 (sufficient evidence of victim's reasonable fear of bodily harm where perpetrator made explicit sexual references to victim and stated he intended to come to victim's home); Hall, supra at 383(b), 487 S.E.2d 41 (1997) (sufficient evidence of victim's reasonable fear of bodily harm where perpetrator was verbally abusive and victim knew he owned guns).
[13] Benton, supra at 623(2)(a), 568 S.E.2d 770.
[14] See Stewart v. Cardella, 269 Ga.App. 32, 32-33(1), 602 S.E.2d 915 (2004).
[15] See Watson v. State, 222 Ga.App. 158, 159(2), 473 S.E.2d 262 (1996).
[16] OCGA § 16-5-94(d)(3), (4).
[17] See, e.g., Reynolds v. Kresge, 269 Ga.App. 767, 769, 605 S.E.2d 379 (2004) (superior court has broad authority "to fashion appropriate relief from conduct designated as stalking").
[18] See Griffiths v. Rowe Properties, 271 Ga.App. 344, 345(2), 609 S.E.2d 690 (2005) (request for frivolous appeal penalty denied where appellant's arguments do not appear to have been made unreasonably or in bad faith). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338089/ | 627 S.E.2d 925 (2006)
278 Ga. App. 9
WEBB
v.
The STATE.
No. A06A0346.
Court of Appeals of Georgia.
March 6, 2006.
*926 Patrick Webb, Alamo, pro se.
Spencer Lawton, Jr., District Attorney, Larry Chisolm, Assistant District Attorney, for Appellee.
JOHNSON, Presiding Judge.
On January 26, 2005, a grand jury indicted Patrick Webb on charges of possession of a controlled substance with intent to distribute, driving under the influence, failure to wear a seat belt, and driving with an expired license plate. Prior to indictment, on October 25, 2004, Webb filed a pro se document captioned, "Waiver of Formal Indictment and Demand for Trial pursuant to O.C.G.A. 17-7-170." On March 8, 2005, the trial court entered a written order denying Webb's demand for trial, finding that the demand was not properly served and that Webb could not unilaterally waive indictment in order to file a valid demand for speedy trial. The trial court appointed an attorney to represent Webb after the case was indicted.
On April 28, 2005, Webb filed a number of pro se motions and pleadings. The trial court ordered these documents stricken because Webb was represented by counsel. On June 23, 2005, the state placed Webb on notice of its intent to prosecute him as a recidivist. On July 11, 2005, the state also placed Webb on notice of its intent to present evidence in aggravation of sentencing.
On July 18, 2005, Webb entered a negotiated guilty plea with the assistance of counsel. Webb agreed to plead guilty in return for an agreement by the state to reduce the charge of possession of cocaine with intent to distribute to possession of a controlled substance and to allow Webb to receive a sentence of five years to serve. The state entered an order of nolle prosequi to all the other charges. On August 9, 2005, Webb filed a pro se motion to amend the judgment, based on the assertion that he was not informed in court of the statutory minimum for possession of a controlled substance. The trial court denied the motion, finding it was improperly filed and that the minimum sentence for the reduced offense had no bearing on the five-year sentence negotiated by Webb and the state. Webb subsequently filed a pro se motion for an order to amend the final disposition, which was likewise denied by the court. Webb filed a direct appeal to the Supreme Court, seeking review of the trial court's order denying his motion for discharge and acquittal pursuant to OCGA § 17-7-170. The Supreme Court then transferred the appeal to this Court. We find no error and affirm Webb's conviction.
1. Webb contends the trial court erred in denying his motion for discharge and acquittal pursuant to OCGA § 17-7-170. We disagree. OCGA § 17-7-170(a) mandates that the demand for trial "shall be filed with the clerk of court and served upon the prosecutor and upon the judge to whom the case is assigned or, if the case is not assigned, upon the chief judge of the court in which the case is pending." Here, Webb filed a pro se waiver of formal indictment and demand for trial without serving a copy upon the prosecutor or the trial judge. Contrary to Webb's argument, the certificate of service attached to his motion does not show that either the prosecutor or the judge was served. Accordingly, the trial court correctly ruled that the demand was not properly served and correctly denied Webb's motion for discharge and acquittal on this ground.[1]
Moreover, the trial court correctly ruled that Webb may not unilaterally waive indictment in order to file a valid speedy trial demand. This Court has repeatedly held that a demand for trial under OCGA § 17-7-170 is available only to those against whom a true bill of indictment or an accusation is filed with the clerk for a noncapital offense.[2] Where a statutory demand for trial is filed *927 before the indictment is returned, the demand is a nullity and provides no ground for granting a plea in bar for failure to try the case within the statutory period.[3] Webb was not without access to a speedy trial. He did, however, utilize the wrong method by prematurely invoking the protections of OCGA § 17-7-170.[4] The express provisions of OCGA § 17-7-170 do not mandate Webb's acquittal under the circumstances presented, and the trial court did not err in denying Webb's motion for discharge and acquittal.
2. Webb argues that his rights to equal protection and due process were violated because the state presented the charges to the grand jury for indictment rather than bringing the case to trial in superior court by accusation. We find no error.
In the present case, Webb was charged with the felony offense of possession of cocaine with intent to distribute. Since the case involved a felony charge, Webb was entitled to an indictment by a grand jury.[5] However, the district attorney is vested with the right to try a defendant by accusation, rather than indictment, if the defendant waives indictment by a grand jury in writing.[6] The purpose of the statutory provision authorizing waiver of indictment is to give a person who has been charged with a felony the right, with the concurrence of the prosecuting officer and the judge, to have his case disposed of without having to await the action of a grand jury.[7]
Contrary to Webb's argument, the statute does not give the defendant the right to choose whether he will be tried by indictment or accusation. The statute clearly notes that the district attorney "shall have authority to prefer accusations."[8] Here, it is obvious from the record that the district attorney decided to proceed with a grand jury indictment rather than by accusation. This decision did not violate Webb's rights to equal protection or due process.
Webb also asserts that because the felony in this case was connected with traffic offenses, charged on uniform traffic citations, his charges should be considered accused within the meaning of the statute mandating a speedy trial. However, in order for a speedy trial demand to attach to a uniform traffic citation, the citation must be filed with the court by the state.[9] Here, it is undisputed that the state did not file the uniform traffic citations with the trial court. The state instead chose to commence the prosecution, not by filing the uniform traffic citations, but by seeking an indictment by a grand jury. This decision did not violate Webb's rights to equal protection or due process.
3. Based on our holdings in Divisions 1 and 2, the trial court's reliance on Smith v. State[10] was not error.
4. Webb argues that "the state has prejudiced the defense by violating the defendants [sic] fundamental rights at every stage of the criminal proceedings." However, as we held in Divisions 1 and 2, the trial court correctly denied Webb's motion for discharge and acquittal because the speedy trial demand provisions were not applicable in the present case. Webb was not indicted or accused within the meaning of OCGA § 17-7-170 at the time he filed his demand. The record does not contain any evidence that Webb's rights were violated or that the state has prejudiced the defense.
Webb also embarks on a discussion of matters not apparent from the record. He argues that the trial court failed to issue an appearance bond to obtain a key defense witness, and that he was denied access to *928 public records. Webb also argues, without any support, that police abused their office by using drugs and money to pay confidential informants and that his trial strategy "hinged upon being tried while the public was expose [sic] to the police corruption ... and the impreachable [sic] content of their testimony." Webb makes no contention that, in accepting the guilty plea, the trial court erroneously failed to follow the established procedure. It appears from his arguments that Webb contends his plea was not voluntary because of the extraneous issues he cites in his brief.
The issues which Webb seeks to raise on appeal from his guilty plea can be developed only in the context of a post-plea hearing.[11] Webb could have filed a motion to withdraw his guilty plea and then his claims would have been aired in a timely manner at the hearing on the motion. If Webb had done so and the trial court had denied his motion, then he could have appealed to us from that denial. However, in this case there was no such motion or hearing and, thus, no appeal from an order denying the motion. Since the issues which Webb raises cannot be resolved only by facts appearing in the existing record, we cannot address them.[12]
Webb also contends that the trial court clerk refused to transmit the complete record to the Court of Appeals. Webb filed a motion to supplement the record, requesting that we direct the Chatham County Superior Court clerk to transmit the transcript of his probation revocation hearing and the transcript of the recorder's court proceeding. The Clerk of this Court contacted the superior court clerk in Chatham County and was advised that no such transcripts had been filed in the Chatham County Superior Court. This Court has no way of knowing if Webb contacted the various court reporters and made arrangements for the transcripts to be filed in the Chatham County Superior Court. However, it is clear that we cannot direct the superior court clerk to transmit transcripts that have not been filed. We, therefore, denied Webb's motion to supplement the record. Webb was not denied due process or equal protection on this ground.
Judgment affirmed.
MILLER and ELLINGTON, JJ., concur.
NOTES
[1] See Baker v. State, 270 Ga.App. 762, 763-764(1), 608 S.E.2d 38 (2004).
[2] See Smith v. State, 218 Ga.App. 392, 393, 461 S.E.2d 561 (1995).
[3] See Eagles v. State, 269 Ga.App. 462, 464-465(1), 604 S.E.2d 294 (2004); Day v. State, 187 Ga.App. 175, 175-176(2), 369 S.E.2d 796 (1988).
[4] See Smith, supra.
[5] See OCGA § 17-7-70(a); Weatherbed v. State, 271 Ga. 736, 737-739, 524 S.E.2d 452 (1999).
[6] Weatherbed, supra.
[7] Smith, supra.
[8] OCGA § 17-7-70(a).
[9] See Millan v. State, 231 Ga.App. 121, 122, 497 S.E.2d 664 (1998); Ghai v. State, 219 Ga.App. 479, 480, 465 S.E.2d 498 (1995).
[10] Supra.
[11] See Caine v. State, 266 Ga. 421, 422, 467 S.E.2d 570 (1996).
[12] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1337978/ | 627 S.E.2d 411 (2006)
277 Ga. App. 673
LINZY
v.
The STATE.
No. A05A2000.
Court of Appeals of Georgia.
February 20, 2006.
Billy M. Grantham, Donalsonville, for appellant.
*412 J. Brown Moseley, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.
RUFFIN, Chief Judge.
Herbert Linzy appeals his conviction for voluntary manslaughter, challenging the sufficiency of the evidence. We find that the evidence was sufficient and affirm.
In reviewing the sufficiency of the evidence supporting a criminal conviction, "we view the evidence in [a] light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence."[1] We neither weigh the evidence nor evaluate the credibility of witnesses.[2] Our inquiry is "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."[3]
On August 7, 2004, police were called to an altercation at a vacant lot in Bainbridge where people often gathered to drink and play cards. Linzy and several other people had been there most of the day. Linzy and Tyrone Davis, who were both intoxicated, got into an argument over three dollars that Davis claimed Linzy owed to him. Jerome Sasser entered the argument and hit Linzy with a walking cane. Linzy and Davis resolved their dispute and left the area briefly. When they returned, Linzy approached a card game in which Sasser was participating; Sasser stood up and cut Linzy on the face with a razor. Linzy then began beating Sasser with a piece of wood. After Linzy struck Sasser several times, Bernard Slappey separated the two men. Linzy told Slappey: "Move out of the way, I want to kill him."
When police arrived, both Linzy and Sasser were bleeding, and they were transported to the hospital. When Sergeant David Cutchins saw Linzy at the hospital, Linzy said: "[W]ould you roll my bed in there in the room where [Sasser] is at and let me finish the job?" and "I was going to kill them ___ f ___." Sasser died from his injuries on August 12. The medical examiner testified that Sasser had received at least four separate blows to the head, and that his death was caused by the delayed effects of blunt force trauma to the head.
Linzy's only defense at trial was that he acted in self-defense. When a defendant raises self-defense as a justification for the use of deadly force, the State must disprove that defense beyond a reasonable doubt.[4] Linzy argues that the evidence at trial was insufficient to negate his assertion of self-defense. But it is generally a jury question "whether or not the evidence shows that a person had a reasonable belief that it was necessary to use deadly force to prevent death or great bodily injury to himself."[5]
Here, the evidence was sufficient for the jury to determine beyond a reasonable doubt that Linzy did not act in self-defense.[6] The jury was entitled to believe evidence that Linzy instigated the altercation by approaching Sasser in a threatening manner with a piece of wood in his hand and thus did not act in self-defense.[7] Furthermore, there was testimony that Linzy continued to strike Sasser after he had fallen to the ground and was no longer a threat. Accordingly, the jury could conclude either that Linzy's actions were not justified because he used excessive force,[8] or that he did not act in self-defense after the first blow.[9] And Linzy's statements, both in the heat of the moment and later at the hospital, that he intended to kill *413 Sasser do not support a finding of self-defense.[10] Therefore, we affirm Linzy's conviction for voluntary manslaughter.
Judgment affirmed.
JOHNSON, P.J., and BARNES, J., concur.
NOTES
[1] Lawson v. State, 275 Ga.App. 334, 335(1), 620 S.E.2d 600 (2005).
[2] See id.
[3] Id.
[4] See Giddens v. State, 276 Ga.App. 353, 355(1), 623 S.E.2d 204 (2005).
[5] (Punctuation omitted.) Id.; see also Slaughter v. State, 278 Ga. 896, 896-897, 608 S.E.2d 227 (2005).
[6] See Hutchinson v. State, 158 Ga.App. 73, 73-74, 279 S.E.2d 313 (1981) (physical precedent only).
[7] See Giddens, supra.
[8] See Harris v. State, 274 Ga. 422, 423(1), 554 S.E.2d 458 (2001); In the Interest of Q.M.L., 257 Ga.App. 22, 23-24(2), 570 S.E.2d 92 (2002).
[9] See Hickman v. State, 186 Ga.App. 118(1), 366 S.E.2d 426 (1988).
[10] See, e.g., Daniel v. State, 268 Ga. 9(1), 485 S.E.2d 734 (1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338202/ | 271 S.C. 65 (1978)
244 S.E.2d 539
The STATE, Respondent,
v.
Houston GAINES, Appellant.
20702
Supreme Court of South Carolina.
May 24, 1978.
Stephen J. Henry, Greenville, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Brian P. Gibbes and Staff Atty. Kay G. Crowe, Columbia, and Solicitor William W. Wilkins, Jr., Greenville, for respondent.
*66 May 24, 1978.
NESS, Justice:
Appellant Houston Gaines was found guilty of receiving stolen goods and sentenced to three years imprisonment. We reverse.
Appellant excepts to portions of the assistant solicitor's closing argument where he referred to certain statements implicating appellant in the crime. The statements allegedly were made by juveniles during investigation and were not introduced into evidence. The assistant solicitor stated:
"If you've ever thought how they solve housebreakings, this is the way they do it. They get on the street and they start talking. And, they have people who give them information and they know and they hear the talk on the street and that evidence can't come into Court because of hearsay rules and other rules of evidence ... and all these other juveniles give statements implicating various other individuals one of whom happens to be this defendant ____" (Tr. pp. 61-62).
This argument was clearly erroneous. In State v. Bottoms, 260 S.C. 187, 195 S.E. (2d) 116 (1973), we held that a solicitor cannot rely, in his closing argument, on statements not in evidence. This Court stated:
"`The general rule is almost universally recognized that evidence of extrajudicial statements made by a witness who is not a party and whose declarations are not binding as admissions is admissible only to impeach or discredit the witness, and is not competent as substantive evidence of the facts to which such statements relate'." 260 S.C. 193, 195 S.E. (2d) 118.
Accordingly, appellant's conviction is reversed.
Although appellant was also indicted and tried for larceny, he was found guilty only of receiving stolen goods. Nevertheless, *67 we take this opportunity to comment on a portion of the trial judge's larceny instructions. In charging the jury on the law of recently stolen goods, he stated:
"I would charge you that a person found in possession of recently stolen goods must give some satisfactory explanation of his possession, otherwise, the law presumes him to (sic) the thief and he, therefore, be guilty of larceny." (Tr. p. 73).
This Court has consistently disapproved instructions which place the burden on the defendant to explain how he came into possession of recently stolen goods. State v. DeWitt, 254 S.C. 527, 176 S.E. (2d) 143 (1970); State v. Sumner, S.C. 236 S.E. (2d) 815 (1977). We again admonish the trial bench that:
"[T]he jury should not be instructed that the burden or duty is upon a defendant to explain possession in such cases, lest the jury draw the conclusion that either (1) the defendant is required to personally give explanatory testimony or (2), in the absence of explanation by the defendant, the inference is to be considered conclusive of guilt." DeWitt, supra, 254 S.C. at 530-531, 176 S.E. (2d) at 145.
While the erroneous charge was not prejudicial to this appellant, we direct the trial bench's attention to it in order to avoid future error.
Reversed.
LEWIS, C.J., and LITTLEJOHN, RHODES and GREGORY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338204/ | 145 Ga. App. 559 (1978)
244 S.E.2d 95
COLLINS et al.
v.
COOPER.
55133.
Court of Appeals of Georgia.
Argued January 18, 1978.
Decided April 4, 1978.
Albert B. Wallace, for appellants.
James D. Windham, Gerrilyn G. Brill, for appellee.
BIRDSONG, Judge.
Cooper brought suit against the Collinses (Collins) who filed a third-party complaint against Mauldin. In striking the jury, the trial court allotted six peremptory strikes to Cooper and three each to Collins and Mauldin. Following an adverse jury verdict, Collins filed a motion for new trial, alleging, in addition to the general grounds, that the trial court erred in allocating the peremptory strikes as described above. On appeal, Collins alleges, in a single enumeration of error, that the trial court erred in overruling the motion for new trial. Held:
1. Appellants' challenge to the trial court's allocation of peremptory jury strikes is without merit for several reasons.
First, although this court has indicated, without holding, that "... the judge who has discretion to sever a third-party claim would also have the discretion to grant a third-party defendant six additional strikes" (Mercer v. Braswell, 140 Ga. App. 624, 626 (231 SE2d 431)), appellants have made absolutely no showing that a severance was sought or denied or that additional jury strikes were required, requested, or refused. Plainly, then, no abuse of discretion appears. Furthermore, we are aware of no statute or authority, and appellants cite none, in support of the proposition that impleading defendants are legally entitled to additional jury strikes. In fact, such a contention would appear to be controlled adversely by the holding of the Supreme Court of Georgia in New York Life Ins. Co. v. Hartford Acc. &c. Co., 181 Ga. 55 (2) (181 SE 755), where the court stated: "[T]he statute in this State providing for a list of twenty-four jurors... authorizes only twelve strikes... and makes no provision whereby interpleading defendants may consume the whole twelve strikes," (Emphasis supplied.) Id., p. 58.
Second, the trial court specifically found that, after the allocation of peremptory strikes to each party, "... the parties then proceeded to strike a jury on that basis, without any objection by any party." "In view of the foregoing we consider the waiver principle as applicable to the present case, in the absence of any objection before *560 the verdict in the nature of a challenge to the array." Derryberry v. Higdon, 116 Ga. App. 381, 383 (157 SE2d 559). Furthermore, "[w]here enumerated errors on appeal attempt to raise for the first time questions not raised in the trial court, they present nothing for decision. [Cits.]" Cauley v. State. 137 Ga. App. 8141(1), 815 (224 SE2d 794).
Third, "[i]t is an old and sound rule that error to be reversible must be harmful...[Cit.]" Burger Chef Systems v. Newton, 126 Ga. App. 636, 639 (191 SE2d 479). Appellants have made no showing that they exhausted their allotment of peremptory strikes, or that they were in any way harmed by the circumstance that they were entitled to only three strikes.
2. As to the general grounds, "[a]n appeal with enumerations of error dependent upon a consideration of the evidence heard by the trial court will, absent a transcript, be affirmed. [Cits.]" Chapman v. Conner, 138 Ga. App. 518 (226 SE2d 625).
Judgment affirmed. Bell, C. J., and Shulman, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338184/ | 244 S.E.2d 475 (1978)
Linda Lee SHIELDS, Executrix of the Estate of James L. Shields
v.
Charles Fitz-Henry PRENDERGAST.
No. 7726DC461.
Court of Appeals of North Carolina.
June 6, 1978.
*476 Howard & Bragg by Carl W. Howard and Mary Jean Hayes, Charlotte, for plaintiff-appellant.
Ervin, Kornfeld & MacNeill by Winfred R. Ervin, Jr., Charlotte, for defendant-appellee.
VAUGHN, Judge.
If the note sued on is a demand instrument, a cause of action accrued against the maker on the date of the instrument, and consequently, the period of limitation began to run in favor of the maker on that date, 3 February 1970. G.S. 25-3-122(1)(b); G.S. 1-15; Ervin v. Brooks, 111 N.C. 358, 16 S.E. 240 (1892); Caldwell v. Rodman, 50 N.C. 139 (1857). In that event, the judge's conclusion that the suit was barred because it was not instituted within three years, would be correct.
By its terms the note is "Due At request" or payable on demand. Plaintiff contends that because of the inclusion of the term "with 30 days notice," it is not a demand instrument. We disagree. "The debt which constitutes the cause of action arises immediately on the loan. It is quite clear that a promissory note, payable on demand, is a present debt and is payable without any demand, and the statute begins to run from the date of it." Caldwell v. Rodman, supra. "Instruments payable on demand include. . . those in which no time for payment is stated." G.S. 25-3-108. No time for payment is stated in the note in question, and it is, therefore, payable on demand. The provision for 30 days notice did not postpone the date upon which the period of limitation would begin to run. In Knapp v. Greene, 79 Hun. 264, 29 N.Y.S. 350 (1894), a New York court held that when a note was payable "on demand after three months' notice" the Statute of Limitations began to run on the day the note was executed. The court said:
"The real object [of the notice provision] was to give the debtor a reasonable time to pay the debt before the creditor could charge him with the costs of a suit.. . . `If there was any infirmity in the consideration, or any defect in the binding character of the obligation, he might retain it until all testimony was *477 lost, and defeat the defense. This is the mischief which the statute of limitations was intended to remedy.'"
29 N.Y.S. at 351 (quoting Palmer v. Palmer, 36 Mich. 487, 488, 490 (1877)).
In a more recent New York case, suit was brought on a note payable "thirty days after demand." The court followed Knapp and said, "The note herein, being payable `thirty days after demand', the holder was free to make his demand immediately. The notice was for the benefit of the debtor. The debtor could at any time waive the notice and tender the debt." Environics, Inc. v. Pratt, 50 A.D.2d 552, 553, 376 N.Y. S.2d 510, 511 (1975).
We hold that the note in question was payable on demand, that the period of limitation began to run on the date it was executed, and that the suit to collect on the debt was barred by the Statute of Limitations. The judgment is, therefore, affirmed.
Affirmed.
PARKER and WEBB, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338188/ | 145 Ga. App. 840 (1978)
244 S.E.2d 905
FIRESTONE TIRE & RUBBER COMPANY
v.
KING.
55108.
Court of Appeals of Georgia.
Argued January 4, 1978.
Decided April 20, 1978.
Rehearing Denied May 4, 1978.
Perry, Walters, Lippitt & Custer, Jesse W. Walters, *847 Gregory J. Digel, Alfred B. Adams, III, for appellant.
Burt, Burt & Rentz, Hillard P. Burt, Walter H. Burt, III, for appellee.
BANKE, Judge.
The appellee's husband suffered brain damage when the left front tire of a truck which he was driving blew out, causing the vehicle to go out of control and overturn. She brought this products liability claim on his behalf against the appellant, the manufacturer of the tire, alleging that the blowout had been caused by a manufacturing defect. A jury awarded her $300,000 in damages, which gave rise to this appeal.
Neither the tube which had been in the tire nor the portion of the tire in the immediate area of the blowout was recovered following the accident; however, from the portions of the tire which were recovered, it was evident that less than 20 percent of the tread had been used. This indicated exceptionally good wear, since the tire had *841 traveled over 30,000 miles. There was no indication that the tire had been improperly cared for or abused in anyway, nor was there any indication that road conditions or foreign objects in the immediate area were responsible for the blowout.
Two experts testified on behalf of the appellee, stating that in their opinion the failure of the tire was caused by a defect in the material or workmanship. According to their theory, excessive flexion was produced in the area of the defect as the tire rotated, generating a "hot spot" and gradually weakening the nylon cord in that area until it was no longer functional.
The appellant's expert, on the other hand, testified that the cords were weakened not by a manufacturing defect but by an impact with something in the road, an impact which could have occurred hundreds of miles prior to the blowout. According to his theory, the interior cords damaged by the impact eventually punctured the tube, which in turn caused progressive deflation, which in turn caused progressive overheating throughout the entire tire. This overheating eventually weakened the cords, resulting in a blowout in the area of the original cord damage.
The appellee's experts and the appellant's expert were in direct conflict on the issue of whether the cords in the remaining portion of the tire exhibited signs of generalized overheating such as might have been caused by running the tire in an underinflated condition. The appellant's expert testified that the tire did exhibit such signs, giving support to his theory that the blowout resulted from a prior impact. The appellee's experts testified that the overheating was localized, giving support to their theory that a defect was responsible for the blowout.
1. In order to impose strict liability on the manufacturer of a product, "the plaintiff must show that the manufacturer's product when sold by the manufacturer was defective." Center Chemical Co. v. Parzini, 234 Ga. 868, 869 (1) (218 SE2d 580) (1975). See Code Ann. § 105-106; Ellis v. Rich's, Inc., 233 Ga. 573 (212 SE2d 373) (1975). The appellant contends that the appellee failed to make such a showing in this case, since her *842 experts could not specify the exact nature of the defect which, in their opinion, caused the tire to fail. Instead they merely speculated as to possibilities, such as contamination of materials or undervulcanization.
We do not agree that it was necessary for the appellee to specify the nature of the defect in order to meet her burden of proof. It has often been held that the existence of a manufacturing defect in a products liability case may be inferred from circumstantial evidence. See, e.g., Franks v. National Dairy Products Corp., 414 F2d 682 (5th Cir. 1969); Smith v. Uniroyal, Inc., 420 F2d 438 (7th Cir. 1970); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F2d 631 (8th Cir. 1972); McCann v. Atlas Supply Co., 325 FSupp. 701 (W. D. Pa. 1971); Barth v. B. F. Goodrich Tire Co., 265 Cal. App. 228 (71 Cal. Rptr. 306) (1968). Furthermore, the defect in this case could not be directly observed due to the fact that the material in the area of the blowout was destroyed by the blowout. To rule that this prevented the appellee from establishing a prima facie case would be to insulate manufacturers from liability for defective products in any case where the defect causes its own destruction. Such a result would be totally untenable.
We hold that the testimony presented a jury question as to whether the appellee's injuries were caused by a manufacturing defect in the tire. Accord, Long Mfg. &c., Inc. v. Grady Tractor Co., 140 Ga. App. 320 (1) (231 SE2d 105) (1976); Ford Motor Co. v. Lee, 137 Ga. App. 486 (5,6) (224 SE2d 168) (1976). Cf. Firestone Tire &c. Co. v. Jackson Transp. Co., 126 Ga. App. 471 (191 SE2d 110) (1972). Therefore, the trial court did not err in failing to direct a verdict for the appellant or to grant a new trial on the general grounds.
2. Appellee's husband drove for a trucking firm which made frequent use of Firestone tires. An employee of that firm was called as a witness and was asked by appellee's counsel whether the firm had discontinued using Firestone tires following the blowout which gave rise to this case. Appellant immediately objected and moved for a mistrial. The trial judge sustained the objection, stating that the question was improper and prejudicial and instructed the jury to disregard it. The appellant now asserts as error the failure to grant its *843 motion for mistrial.
This enumeration is without merit. "The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. [Cits.] Unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with." Atlantic C. L. R. Co. v. Smith, 107 Ga. App. 384 (6) (130 SE2d 355) (1963). Although the question asked by appellee's counsel was a patent attempt to introduce inadmissible evidence, the question was never answered, and we do not believe that in the context of all the evidence presented during this four-day trial it so prejudiced the proceedings as to require a mistrial as a matter of law.
3. Counsel for appellee asked the following question of one of his experts on direct examination and received the following response: "Q. Were you familiar with this type of Firestone tire, Mr. Cerny, before you made this examination? A. Yes, sir, we had looked into other failures involving the Transport 1 tires." Appellant contends that it was error to deny his subsequent motion for mistrial.
This contention is also without merit. "[W]here illegal testimony is volunteered by a witness in answer to the question asked, and where such answer is ruled out, it is ordinarily not an abuse of discretion to refuse to grant a mistrial. [Cits.]" Jones v. State, 139 Ga. App. 643 (229 SE2d 121) (1976). The trial court promptly instructed the jury to disregard the answer as being unresponsive to the question. Accordingly, he acted within his discretion in denying the mistrial.
4. On voir dire, counsel for the appellant asked the prospective jurors whether any of them had a physical disability and received no affirmative response. Later he discovered that one of the jurors chosen to serve had an artificial leg. He moved for a mistrial on the ground that this juror's failure to respond truthfully on voir dire deprived him of information which he needed to make intelligent use of his peremptory challenges and, therefore, undermined the integrity of the jury selection process. The denial of this motion is now enumerated as error.
*844 An attack on the jury selection process is never to be treated lightly, for the selection of an impartial jury is, as the defendant points out, "the cornerstone of the fairness of trial by jury." Melson v. Dickson, 63 Ga. 682, 686 (1879). Nevertheless, we hold that it was not error to deny a mistrial in this case. The juror in question stated in a post-trial affidavit that the loss of her leg, which had occurred 37 years earlier during a tornado, did not enter into her mind during the deliberations. Furthermore, she stated that she had not heard the question as to whether anyone had a physical disability and that, in any event, she did not consider herself to be disabled since she had lived and worked with the artificial leg all of her adult life. The appellant has presented us with no reason why, in the face of these statements, we should assume that this juror was biased towards the appellee or against the appellant.
Glover v. Maddox, 100 Ga. App. 262 (5) (111 SE2d 164) (1959), cited by appellant in support of its position, is inapposite to this case. The court there ordered a new trial due to a juror's failure to disclose in response to voir dire questioning that he had previously been represented by counsel for plaintiff in an adoption proceeding. The court noted that prior familiarity or involvement with the parties, counsel or subject matter in a suit are matters which Code § 59-705 specifically sets out as bearing on a prospective juror's interest in the case. Unlike the information sought by appellant's counsel in this case, such information actually reveals a prior connection between the juror and some aspect of the litigation. No such prior connection would have been revealed by a proper response in this case.
The case of Bryan v. Moncrief Furnace Co., 168 Ga. 825 (149 S.E. 193) (1929), also cited by appellant, is similarly inapposite. That case involved the denial of the appellant's request to inquire whether any members of the panel belonged to the KKK, which was a party to the case.
In the absence of any showing of actual injury or bias, the appellant's motion for mistrial was properly overruled. Accord, Geiger v. State, 129 Ga. App. 488 (2) (199 SE2d 861) (1973).
5. As counsel for the appellee began his closing *845 argument, he stated: "... let me just say at the outset if we hadn't proved the case I wouldn't be standing here." Counsel for appellant immediately objected, whereupon the court stated: "I sustain the objection, Mr. Burt, that is not proper. Whether or not you've proved it is strictly up to you members of the jury. I don't know what Mr. Burt means by that. The mere fact that it's presented to the jury does not mean he's entitled to a verdict or that he's proved anything. Just disregard that statement. Mr. Burt, don't make statements like that." The appellant contends that it was entitled to the grant of a mistrial due to this and other allegedly improper statements made by appellee's counsel during closing argument.
"Improper remarks made by counsel in argument to the jury may be corrected by the court by proper instructions to the jury, and in extreme cases by the further device of rebuking the offending counsel, or if the offense is so great as to render it likely that the harmful effects thereof cannot be removed by proper instructions and by a rebuke of counsel, then the court may grant a mistrial. However, the trial court has a wide discretion in granting or refusing to grant a mistrial in such cases, and unless it is manifest that a mistrial was essential to the preservation [of] the right of a fair trial, the appellate courts should not interfere with the proper exercise by the trial judge of this discretion. [Cits.]" Yellow Cab Co. v. McCullers, 98 Ga. App. 601, 606 (3) (106 SE2d 535) (1958). See Smith v. State, 204 Ga. 184 (2) (48 SE2d 860) (1948); McCluskey v. American Oil Co., 225 Ga. 63 (165 SE2d 830) (1969); Travelers Indem. Co. v. Wilkes County, 102 Ga. App. 362 (2) (116 SE2d 314) (1960). The trial court promptly rebuked appellee's counsel and admonished the jury to disregard the improper remarks quoted above. We find no abuse of discretion in the subsequent refusal to declare a mistrial.
The other remarks cited by appellant as requiring the grant of a mistrial do not appear to this court to have had any significant potential for prejudice or harm to the appellant.
6. It was not error to allow the investigating officer to give his opinion as to the speed of the truck at the time of the blowout, over the objection that his opinion was based *846 on insufficient facts. "A qualified witness may give opinion evidence as to speed based on data observed immediately after a collision, such as skid marks, distances, and the positions of and damage to the vehicles. If it be developed by further examination that the opinion is based on inadequate knowledge, this goes to the credibility of the witness rather than to the admissibility of the evidence." Central Container Corp. v. Westbrook, 105 Ga. App. 855 (4) (126 SE2d 264) (1962). See Massee v. State Farm Mut. Auto. Ins. Co., 128 Ga. App. 439 (3) (197 SE2d 459) (1973); Williams Bros. Grocery Co. v. Blanton, 105 Ga. App. 314 (2c) (124 SE2d 479) (1962).
7. It was not error to charge the jury that the plaintiff was not required to prove negligence in the manufacturing of the tire in order to recover. See Center Chemical Co. v. Parzini, 234 Ga. 868 (2), supra; Stovall & Co. v. Tate, 124 Ga. App. 605 (184 SE2d 834) (1971). Nor is there any merit in the appellant's contention that the charge was argumentative or that it expressed opinions in favor of the appellee.
8. Appellant enumerates as error the failure to give the following charge on request: "I charge you, Members of the Jury, the mere fact of a tire blowout does not tend to establish that the tire was defective. Blowouts can be attributed to myriad causes, including not only the care with which the tires are maintained, but the condition of the roads over which they are driven and the happenstance striking of damaging objects." The trial court charged the first sentence but not the second. We find no error. The second sentence, although a true statement, was unduly argumentative in favor of appellant and contained no legal principle.
Having found no reversible error in the proceedings in the lower court for any reason assigned, the judgment below is affirmed.
Judgment affirmed. Deen, P. J., and Smith, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/791559/ | 419 F.3d 1036
M&A GABAEE, a California Limited Partnership, Plaintiff-Appellant,v.The COMMUNITY REDEVELOPMENT AGENCY of the City of Los Angeles, a public agency; City of Los Angeles, a municipal corporation, Defendants-Appellees.
No. 04-56134.
No. 04-56740.*
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 5, 2005.
Filed August 17, 2005.
Bruce Tepper, Los Angeles, CA, argued the cause for the appellant; Fernando Villa and Amy B. Alderfer, Greenberg Traurig, LLP, Santa Monica, CA, were on the brief.
JoAnn Victor, Jackson & Assoc., Los Angeles, CA, argued the cause for the appellees; David S. Cunningham III, Jackson & Assoc., and Mary K. Dennis, Office of the City Attorney of Los Angeles, CA, were on the brief.
Appeals from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. Nos. CV-04-02798-SVW, CV-04-05424-SVW.
Before O'SCANNLAIN and RAWLINSON, Circuit Judges, and WHALEY,** District Judge.
O'SCANNLAIN, Circuit Judge.
1
We must decide whether Younger abstention is called for when a parallel state-court proceeding has formally begun but not yet reached proceedings of substance on the merits of the case.
2
* M&A Gabaee ("M&A"), a California limited partnership formed by real estate developers, holds possession of two pieces of property in Los Angeles, one at 1040 E. Slauson Ave. and one at 944-1010 E. Slauson Ave. (the "1040 E. Slauson property" and "1010 E. Slauson property" respectively).1 Since acquiring these properties, M&A has sought permission from the Community Redevelopment Agency of the City of Los Angeles (the "CRA") to develop the properties into a shopping complex.
3
The CRA, however, awarded the development project to another developer, Slauson Central. In December 2003, CRA entered into a development agreement with Slauson Central and served M&A with a Notice of Intent to Acquire both properties. The subsequent condemnation process proceeded on different schedules for the two properties, and because the parties' arguments depend heavily on the timing of the various events in this dispute, we describe them separately.
4
On March 4, 2004, the CRA Board of Commissioners adopted a Resolution of Necessity authorizing the CRA to acquire the 1040 E. Slauson property by eminent domain. On March 17, the CRA filed an eminent domain action in California Superior Court (the "1040 eminent domain action"). On April 22, M&A filed an action in federal district court seeking to enjoin the CRA from acquiring the 1040 E. Slauson property through eminent domain. The CRA moved to dismiss the suit based on Younger abstention. The district court granted the motion in June 2004, and M&A timely appealed.
5
On July 14, 2004, M&A filed a separate action in federal court seeking to enjoin the CRA from acquiring the 1010 E. Slauson property through eminent domain. The following day, the CRA Board adopted a Resolution of Necessity authorizing the CRA to do just that. That same day, the CRA filed an eminent domain action against the 1010 E. Slauson property in California Superior Court (the "1010 eminent domain action"). The CRA moved to dismiss M&A's second federal lawsuit, again on the basis of Younger abstention, and in September 2004 the district court granted the motion. Again, M&A timely appealed.
6
Because the issues are so similar, we resolve both appeals in this opinion.
II
7
The parties' dispute centers on whether the CRA's use of the eminent domain power was aimed at a valid "public use," U.S. Const. amend. V; see Kelo v. City of New London, ___ U.S. ___, 125 S.Ct. 2655, 2662, ___ L.Ed.2d ___ (2005), but this question is not before us. Rather, we must decide whether the doctrine of Younger abstention required the district court to dismiss M&A's two federal lawsuits because of the eminent domain proceedings taking place in California state court.
8
A federal court must abstain to avoid interference in a state-court civil action when three tests are met. First, the proceedings must implicate important state interests; second, there must be ongoing state proceedings; and third, the federal plaintiff must be able to litigate its federal claims in the state proceedings. See Am. Consumer Pub. Ass'n, Inc. v. Margosian, 349 F.3d 1122, 1126 (9th Cir.2003); Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 433, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). The first and third prong are clearly met,2 and M&A challenges only the second, arguing that there were no ongoing state proceedings at the relevant times. We must consider its argument separately for each of the two proceedings.
9
* CRA filed the 1040 eminent domain action in California Superior Court on March 17, 2004. M&A did not file its federal suit until more than a month later, on April 22, 2004. M&A nevertheless argues that the state action was not "ongoing," because no "proceedings of substance on the merits" had yet occurred in the state action.
10
M&A's argument is based on an analogy to the Supreme Court's holding in Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), where the Court held that "where state . . . proceedings are begun . . . after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris[, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)] should apply in full force."3 Id. at 349. Hicks teaches that it is not the filing date of the federal action that matters, but the date when substantive proceedings begin. M&A's argument is that the same should be true of the state action. It argues that the existence of a merely "embryonic" state action—one in which no substantive proceedings have taken place—does not require a federal court to engage in Younger abstention.
11
M&A's argument, however, has no support in the decisions of the Supreme Court or this circuit. In fact, it contradicts the whole purpose and tenor of the Supreme Court's holdings in Younger and Hicks.
12
The principle behind the Supreme Court's initial invocation of the abstention doctrine in Younger was its conviction that "[s]ince the beginning of this country's history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts." 401 U.S. at 43, 91 S.Ct. 746. Under the system the Court called "Our Federalism," it explained, "the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." Id. at 44, 91 S.Ct. 746. Thus, the Court concluded, "the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions." Id. at 45, 91 S.Ct. 746. In short, the driving principle behind Younger was that in matters of special concern to the states, federal courts should avoid depriving the state courts of the opportunity to adjudicate constitutional issues. Hicks reaffirmed and extended this principle, holding that because "[t]he rule in Younger v. Harris is designed to permit state courts to try state cases free from interference by federal courts," federal courts must defer even to state court proceedings that are filed after the federal action. 422 U.S. at 349, 95 S.Ct. 2281 (internal quotation marks omitted).
13
The principle of deference to state courts would be subverted by M&A's suggestion that federal courts should ignore pending state-court proceedings, and proceed to adjudicate matters of state concern themselves, so long as the state proceedings have not yet reached the substance of the dispute. Under the logic of Younger and Hicks, it makes no difference what stage the state-court proceedings are at: what matters is that the existence of a pending state-court action unmistakably signals the state's willingness and readiness to adjudicate the dispute.
14
Nor does M&A's argument find support in the language of the Supreme Court's own application of its Younger jurisprudence. In Hicks, for instance, the Court held abstention to be appropriate "where state . . . proceedings are begun against the federal plaintiffs." 422 U.S. at 349, 95 S.Ct. 2281 (emphasis added). It is self-evident that, absent some unusual use of language, a lawsuit begins when it is filed. See Agriesti v. MGM Grand Hotels, Inc., 53 F.3d 1000, 1001 (9th Cir.1995) ("Because no action has been filed in state court against defendants, there are no ongoing state judicial proceedings to which this court can defer" (emphasis added)); cf. EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1505 n. 4 (9th Cir.1990) (citing cases holding that a statutory reference to the "commencement" of a lawsuit refers to the time of filing). In Hawaii Housing Authority, the Court used similar language: "Younger abstention is required . . . when state court proceedings are initiated before any proceedings of substance on the merits have taken place in the federal court." 467 U.S. at 238, 104 S.Ct. 2321 (emphasis added) (internal quotation marks omitted). Again, a state proceeding is surely "initiated" no later than when it is filed (or, at the latest, when the defendant is served). Even more tellingly, the Court wrote:
15
Under Younger-abstention doctrine, interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests.
16
Id. at 237-38, 104 S.Ct. 2321 (emphasis added). By indicating that Younger abstention is appropriate even when federal claims have not yet been presented in state court but could be, this language makes M&A's argument untenable.
17
As support for its argument, M&A relies heavily on language from an Eighth Circuit case, Aaron v. Target Corp., 357 F.3d 768 (8th Cir.2004), in which the court reversed a district court's refusal to abstain and wrote that the district court had "erred by concentrating on filing dates rather than by examining all the facts and context of the two actions." Id. at 777. The court also wrote that "a court should examine what was actually taking place in both settings" and that "[w]hether proceedings of substance have taken place in either court is a key factor." Id. at 775 (emphasis added).
18
Taken at face value, this language could support M&A's argument by suggesting that a district court must consider whether proceedings of substance have taken place in state court as well as in federal court. We doubt, however, that the cited passage of Aaron was intended to be read as M&A would read it; in any event, we reject it insofar as it implies that the propriety of Younger abstention depends on whether the parallel state-court proceeding has yet reached the substance of the dispute.
19
The facts of Aaron are somewhat similar to those now before us: it was a federal lawsuit seeking to enjoin state-court condemnation proceedings against the plaintiffs' property. Id. at 770. The plaintiffs had filed the federal suit and moved for a preliminary injunction before the state court action commenced. Id. at 772. The district court refused to abstain on the ground that federal "proceedings of substance on the merits" commenced with the preliminary-injunction motion and at that time there was no ongoing state proceeding. Id. at 773. The Eighth Circuit reversed, holding that "the federal case was not really advanced in proceedings of substance on the merits" because little more than motions for an injunction and TRO had taken place. Id. at 776 (internal quotation marks omitted). The core of Aaron's holding was thus that mere motions for an injunction do not qualify as "proceedings of substance" in federal court. Neither the holding nor any language in Aaron suggests that federal courts should refuse to defer to a pending state-court proceeding simply because it has not yet reached the merits of the claim.
20
Thus, because a parallel state action was ongoing, the district court was correct to abstain in the federal action concerning the 1040 E. Slauson property, Case No. 04-56134.
B
21
The order of events is slightly different with regard to the 1010 E. Slauson property. The federal action was filed on July 14, 2004, and the state eminent domain proceeding was not filed until the following day, July 15, 2004. Thus, M&A argues, the state action was not "ongoing" when the federal proceeding was initiated. From the above discussion it should be clear that this argument is specious. Hicks and Hawaii Housing Authority establish that Younger abstention applies even when the state action is not filed until after the federal action, as long as it is filed before proceedings of substance on the merits occur in federal court.
22
Despite M&A's contention to the contrary, that is the well-settled law in this circuit. In Polykoff v. Collins, 816 F.2d 1326 (9th Cir.1987), we explained:
23
Whether the state proceedings are "pending" is not determined by comparing the commencement dates of the federal and state proceedings. Rather, abstention under Younger may be required if the state proceedings have been initiated "`before any proceedings of substance on the merits have taken place in the federal court.'"
24
Id. at 1332 (citing Hawaii Housing Authority, 467 U.S. at 238, 104 S.Ct. 2321); see also Comm. Telesys. Intern. v. Cal. Pub. Util. Comm'n, 196 F.3d 1011, 1016 (9th Cir.1999) (as an alternative ground, applying Younger abstention in a civil case seeking injunctive relief where the federal action was filed before the state action); cf. Confederated Salish v. Simonich, 29 F.3d 1398, 1405 (9th Cir.1994) (stating that Younger abstention would generally be applicable although the federal case was filed first, but holding it inapplicable for reasons, not relevant here, related to the type of relief sought).
25
M&A cites Beltran v. California, 871 F.2d 777 (9th Cir.1988), for the proposition that "Younger abstention requires that the federal courts abstain when state court proceedings were ongoing at the time the federal action was filed." Id. at 782 (emphasis added); see also Canatella v. California, 304 F.3d 843, 850 (9th Cir.2002) ("We consider whether the state court proceedings were ongoing as of the time the federal action was filed." (citing Beltran, 871 F.2d at 782)). It is true that, taken literally, this language from Beltran and Canatella would imply that the relevant date is the filing date of the federal action rather than the date when proceedings of substance on the merits begin. That implication, however, would not only be incompatible with the Supreme Court's clear instruction in Hicks and Hawaii Housing Authority that the federal filing date is not determinative;4 it would also flatly contradict Polykoff and the other Ninth Circuit cases cited in the preceding paragraph.
26
The context of those lines from Beltran and Canatella makes clear that no such dramatic rift with precedent was intended. In Beltran, we were faced with the question of what to do when state judicial proceedings had occurred but had ended by the time the federal district court decided whether or not to abstain. The court's statement that "Younger abstention requires that the federal courts abstain when state court proceedings were ongoing at the time the federal action was filed," then, was meant only to reject the proposition that abstention was unwarranted if the state proceedings had terminated after the federal filing but before the federal decision regarding abstention. Canatella cites Beltran's reference to the federal filing date, but the distinction was irrelevant in that case because nothing had changed in state court between the federal filing date and the district court's decision on abstention. 304 F.3d at 848.
27
Because a state action was initiated with regard to the 1010 E. Slauson property before any proceedings of substance had occurred in the corresponding federal action, the district court was correct to dismiss Case No. 04-56740.
III
28
For the foregoing reasons, the judgment of the district court in each of the cases under review is AFFIRMED.5
Notes:
*
These two appeals are consolidated for resolution in this opinion
**
The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation
1
M&A owns the property at 1040 E. Slauson Ave. outright and holds a lease on the property at 944-1010 E. Slauson Ave. through the year 2028 with an option to purchase
2
As to the first prong, states clearly have an interest in the exercise of their own eminent-domain powerSee Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 244, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). As to the third prong, M&A will have an opportunity to litigate its constitutional claims in state court. California law permits M&A to challenge the taking based not only on California state standards, but also on "[a]ny other ground provided by law." Cal. Civ. P. Code § 1250.360(h). Since M&A has pointed out no procedural bar to its ability to raise its constitutional claims in California court, this prong of the test is also satisfied. See Dubinka v. Judges of Superior Court, 23 F.3d 218, 224 (9th Cir.1994); Woodfeathers, Inc. v. Washington County, 180 F.3d 1017, 1020 (9th Cir.1999).
3
Hicks dealt with state-court criminal proceedings. There is no dispute, however, that Younger principles also apply to civil proceedings implicating important state interests. In Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), the Supreme Court applied Hicks to civil proceedings involving a state land reorganization plan.
4
See Hicks, 422 U.S. at 349, 95 S.Ct. 2281 ("[W]here state ... proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force.")
5
M&A's request that we take judicial notice of various documents related to the state-court proceeding is DENIED as moot | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1338310/ | 105 S.E.2d 60 (1958)
248 N.C. 740
Hattle J. CARROW, Helen J. Tremholm, Mary Simmons J. Jenkins, Latham J. Capehart, Evelyn J. Hackney, Norma J. Ross and Grace J. Bowen,
v.
Sylvester DAVIS.
No. 27.
Supreme Court of North Carolina.
September 24, 1958.
*61 J. D. Paul, Wilkinson & Ward, Washington, for defendant, appellant.
Rodman & Rodman, Washington, for plaintiffs, appellees.
HIGGINS, Justice.
Adverse possession of lands, Lindsay v. Carswell, 240 N.C. 45, 81 S.E.2d 168, for 20 years will ripen into title. Everett v. Sanderson, 238 N.C. 564, 78 S.E.2d 408. The defendant offered no evidence of adverse possession for that period. Adverse possession under color of a deed or grant will ripen into title in seven years. Wachovia Bank & Trust Co. v. Miller, 243 N.C. 1, 89 S.E.2d 765. Defendant's adverse possession for that period is admitted. The question is: Did he hold under color of title?
Color of title is a paper writing which purports to convey land but fails to do so. First Citizens Bank & Trust Co. v. Parker, 235 N.C. 326, 69 S.E.2d 841. However, if the failure arises from the insufficiency of the description to identify the land, then the writing cannot operate as color. Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759; Katz v. Daughtrey, 198 N.C. 393, 151 S.E. 879; Farmer v. Batts, 83 N.C. 387.
What the boundaries of a tract of land are, is a question of law. Where they are located on the ground is a question of fact. Brooks v. Woodruff, 185 N.C. 288, 116 S.E. 724; Tatem v. Paine, 11 N. C. 64. To give effect to his possession, the defendant must fit the description in his deeds to the land he claims under them. A deed is void for vagueness of description *62 unless it identifies with certainty the land sought to be conveyed. The identification must be complete in the deed itself, or the deed must point to some source from which the deficiency in the description may be supplied. Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Cathey v. Buchanan Lumber Co., 151 N.C. 592, 66 S.E. 580; Edmundson v. Hooks, 33 N.C. 373.
In his attempt to fit the description in his deeds to the lots claimed, the defendant offered the testimony of a surveyor. To repeat even in substance his evidence relating to the difficulties he encountered in attempting to follow the descriptions in either or both deeds, and to enclose a tract of land, would serve no useful purpose. The descriptions, taken separately or together, fail to enclose a tract of land. They refer to nothing which supplies the deficiency. The second deed recites: "This deed is intended to correct the description in (the first deed) * * * upon discovery that the description * * * is probably erroneous." Of the description in the second deed, the defendant has this to say in his brief: "The able judge below was steered off the correct line of reasoning by the confusion induced by the obvious errors in the so-called deed of correction * * *"
The stipulation of the parties placed upon the defendant the burden of showing his adverse possession under color of his deeds. McPherson v. Williams, 205 N. C. 177, 170 S.E. 662. The judge sitting as a court and jury found he had not carried that burden. The record as it comes to us fully justifies the finding.
Affirmed.
JOHNSON and PARKER, JJ., 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/1338328/ | 98 Ga. App. 450 (1958)
105 S.E.2d 755
CARROLL et al., Executors
v.
HAYES.
37353.
Court of Appeals of Georgia.
Decided October 23, 1958.
*451 Harris, Chance & McCracken, Otis W. Harrison, Fulcher, Fulcher, Hagler & Harper, E. D. Fulcher, for plaintiffs in error.
Congdon, Holley & Smith, Wm. P. Congdon, contra.
NICHOLS, Judge.
1. The evidence on the second trial was substantially the same as that adduced on the first trial, the testimony of the deceased plaintiff having been read to the jury from the transcript of the first trial, and while a verdict for the defendant was not demanded, it was authorized. Accordingly, the usual general grounds of the amended motion for new trial are without merit.
2. Special ground numbered 6 of the amended motion for new trial appears, from a note attached by the trial court, to be an exception to an excerpt from the charge given at the request of the movant.
Where the movant has requested the trial court to give a certain charge, whether the charge is harmful to the movant or not, he cannot complain. See Laing v. Bodiford, 25 Ga. App. 460 (103 S.E. 743); Echols v. State, 94 Ga. App. 898 (6) (96 S.E.2d 521).
In the brief of counsel for the plaintiff it is contended that in reality exception is not taken to the charge given, but that exception is taken to the charge given because the trial court failed to charge other principles of law in addition thereto.
As shown above the movant cannot complain of the charge given, and it is no ground of error to give a correct charge because *452 additional instructions were not given. See Payne v. Young, 27 Ga. App. 370 (4) (108 S.E. 312); Atlantic Coast Line R. Co. v. Clements, 92 Ga. App. 451, 456 (88 S.E.2d 809).
3. Special ground 5 complains that the trial court erred in refusing to allow Lybrand Hutto, a police officer who investigated the collision, to give opinion testimony as to the speed of the defendant's automobile at the time of the collision. The witness did not see the collision but apparently arrived at the scene of the collision before either vehicle had been moved. The witness testified that he was a traffic policeman for the City of Augusta, Georgia, on the date of the collision, that he had investigated quite a few other accidents and that he had seen collisions before.
While it has long been the rule in this State that where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury (Lovejoy v. Tidwell, 212 Ga. 750, 751, 95 S.E.2d 784), it is also well established that whether a witness has such learning and experience in a particular art, science, or profession as to entitle him to be designated as an expert, or to be deemed prima facie an expert, is a matter addressed to the sound discretion of the trial court, and such discretion will not be disturbed unless it is manifestly abused. See Clary v. State, 8 Ga. App. 92 (2) (68 S.E. 615); Whatley v. Henry, 65 Ga. App. 668, 681 (16 S.E.2d 214); Hinesley v. Anderson, 75 Ga. App. 394, 398 (43 S.E.2d 736), and citations.
The evidence in the present case does not show that the trial court manifestly abused its discretion in refusing to allow the witness to testify as an expert.
The contention is made that under the authority of Rentz v. Collins, 51 Ga. App. 782 (4) (181 S.E. 678), and other similar cases, the witness should have been permitted to state his opinion as to the speed of the vehicle driven by the defendant based upon the facts to which he testified.
The witness testified, in addition to what is set forth above, that he arrived at the scene of the collision after the collision had taken place (he did not see either vehicle in motion), that his investigation showed that the front of the automobile driven *453 by the defendant struck the right side of the vehicle being driven by Edward P. Dicks, Sr., that the impact turned Mr. Dicks' automobile over on its left side against an iron pole approximately 15 feet from the point of impact, that Mr. Dicks was driving a 1949 Hudson and the defendant a 1941 Oldsmobile, that as to the area where the collision took place: "The only thing I could go by was approximately where her car was sitting and the dirt that was in the street," that the automobile being driven by the plaintiff traveled approximately 45 feet after entering the intersection to the point of impact while the defendant's traveled only 15 feet into the intersection to the point of impact, that the Hayes' automobile was in its right-hand lane, and that the Dicks' automobile was a heavy type automobile.
While on cross-examination the witness testified as to other facts, at the time the opinion was excluded from the evidence, only the above facts had been adduced.
The distance each vehicle traveled into the intersection before reaching the point of impact would not show speed, nor would the lane in which either was driving. While the weight of one of the vehicles involved in the collision would have been some evidence to aid the witness in arriving at an opinion as to speed, as would the distance traveled by the vehicles after the collision (he had only testified as to the distance traveled by one of the vehicles after the collision), without stating facts as to the weight and distance traveled by the other vehicle, the condition of the road (i.e. wet or dry, asphalt, cobblestone, dirt or concrete), skid marks, if any, and other facts relating to the terrain, the proposed testimony of the witness as to the speed of the vehicle operated by the defendant at the time of the collision would have been a bare conclusion which, even if admitted without objection, would not have had any probative value. See Herrington & Co. v. Shumate Razor Co., 6 Ga. App. 861, 864 (65 S.E. 1064).
4. Special ground 1 of the amended motion for new trial assigns error on certain excerpts from the charge wherein the jury was instructed in effect that, if by the exercise of ordinary care the plaintiff could have avoided the negligence, if any, of the defendant, the plaintiff could not recover.
*454 The contention is made that the excerpts of the charge complained of were error because such excerpts were instructions of "half principles of law," because they failed to limit the responsibility of the plaintiff to avoid the defendant's negligence until after such negligence was either discovered or in the exercise of ordinary care should have been discovered. The charge given was not error. See Pollard v. Page, 56 Ga. App. 503 (4) (193 S.E. 117); Conner v. Downs, 94 Ga. App. 482 (2) (95 S.E.2d 393).
While the excerpts of the charge complained of do not expressly limit the responsibility of the plaintiff to avoid the defendant's negligence to a time when such negligence was discovered or should have been discovered in the exercise of ordinary care, the jury was instructed: "Now, gentlemen of the jury, every operator on an automobile has the right to assume that the other party is going to obey the law and they may act on that to the point where they see the other party is failing to do that, then they must seek to avoid the injury or the negligence of the other party. . . In other words, if the plaintiff could have gotten out of the way by the use of ordinary care and diligence, then the law places the burden on that party not to stay there and suffer damages." The jury was instructed as to the principle of law which the plaintiff contends was omitted. If further instructions had been desired they should have been the subject of timely written requests. No error is shown in this ground of the motion for new trial.
5. Special ground 2 assigns error on an excerpt from the charge wherein the jury was instructed that the proximate cause of an injury is such an act that a person of ordinary prudence and caution would have foreseen that some injury, although not necessarily the injury that did occur, would result therefrom.
While the language of the charge excepted to is not the language usually employed for such charge, the excerpt complained of is not erroneous as a matter of law, and no reversible error is shown by this special ground of the motion.
6. Special ground 3 complains of an excerpt from the charge wherein the trial court charged the jury an ordinance of the City of Augusta. The ordinance requires that all vehicles entering *455 a through street or crossing a through street must yield the right of way to those vehicles traveling on the through street which have entered the intersection or are approaching so closely on such through street as to constitute an immediate hazard, but after so yielding the right of way may proceed, and all other vehicles approaching the intersection on the through street shall yield the right of way to vehicles entering or crossing the through street.
The contention of the plaintiff is that there was no evidence to authorize this charge because there was no evidence that the street on which the defendant was traveling was a through street.
The defendant testified in part: "Well, Buena Vista [the street on which the defendant was traveling], is a thoroughfare down there and there are stop signs at all these other corners of the intersection, and Buena Vista is a main thoroughfare and I assumed he would stop." A plat of the intersection was introduced in evidence showing the location of stop signs at the intersection where the collision occurred.
While it is well settled that the jury should not be instructed as to law on issues not supported by either the pleadings or evidence, it is just as well settled: "However, `to justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.' Holland v. Long, 57 Ga. 41 (3); King v. State, 77 Ga. App. 539, 540 (49 S.E.2d 196)." Pope v. Associated Cab Co., 90 Ga. App. 560, 561 (83 S.E.2d 310). While there was evidence introduced in the present case to contradict that which was quoted above, the evidence in the present case authorized the charge complained of and no error is shown by this ground.
7. Special ground numbered 4 assigns error on an excerpt from the charge wherein the jury was instructed as to the duty of all operators of motor vehicles on the public highways. The court was instructing the jury as to a general principle of law applicable to both the plaintiff and the defendant, and no error is shown by this special ground of the amended motion for new trial.
*456 The verdict was authorized by the evidence, and no reversible error being shown by the amended motion for new trial, the judgment of the trial court denying the plaintiff a new trial must be affirmed.
Judgment affirmed. Felton, C. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338349/ | 214 Ga. 548 (1958)
105 S.E.2d 716
LILLEY et al.
v.
NIXON.
20228.
Supreme Court of Georgia.
Argued October 16, 1958.
Decided November 7, 1958.
Carl T. Hudgins, Sam G. Dettelbach, for plaintiff in error. Augustine Sams, contra.
ALMAND, Justice.
Mrs. Marion Nixon filed her petition against Ethel Purcell Lilley and G. Leonard Allen, Jr., for injunction and interpleader, alleging generally that each of defendants is a real-estate agent; that plaintiff has made an agreement to sell certain described real estate and will owe one commission for the sale of said property; that both defendants claim said commission as a debt or duty owed by plaintiff; and that the commission is due to one of defendants, but that plaintiff is unable to say to which it is due.
Plaintiff specifically alleges in paragraph six of her petition: that "At first petitioner listed said property for a limited time of thirty days exclusively with the defendant Ethel Lilley. Said listing was for sale at and for a named consideration which petitioner alleges the defendant Ethel Lilley did not obtain within the time of the exclusive listing"; and in paragraph seven, "That Ethel Lilley reported to petitioner that she had not sold the premises at the price asked and did not give to petitioner the names of any person or persons she had interested in or to whom she had shown the property."
Plaintiff further alleges in paragraph eight: that "Petitioner will further show that she thereafter, after the termination of the exclusive listing, placed the property in the hands of other agents and that the defendant Leonard Allen interested one Mr. Sales on or about March 16, 1958, in said property and that *549 it was agreed that the property be sold to him with no knowledge on the part of the petitioner that the said Sales had previously seen or been shown the property"; and in paragraph nine: "That $500.00 earnest money has been placed in the hands of the defendant Allen by said Sales as earnest money and that petitioner will owe one commission and only one commission for the sale of said property." Paragraph eleven contains the allegation that "The petitioner on or about May 2, 1958, was notified by the defendant Ethel Lilley that she claims the commission and claims she made the sale."
Plaintiff's prayers are: "(a) That process issue as provided by law; (b) that the defendants be required to interplead and set up their respective claims to the commission at and for the sale of said property and that it be determined among them as to which one is entitled to the commission; (c) that the trade be closed and the defendant Leonard Allen be temporarily restrained and enjoined from disposing or paying out said funds as commissions and that petitioner be allowed if the funds in the hands of said Allen are insufficient to cover the commission to pay into court in this case for the benefit of the prevailing party, by interpleader, any balance due as commissions and this petitioner offers to do if and when the sale is closed; (d) that rule nisi issue requiring the defendants to show cause why they should not be required to interplead herein as provided by law, and why earnest money paid should not be turned over to this court until the party rightfully entitled thereto is determined; [and] (e) that petitioner have judgment requiring such interpleader and be hence discharged."
The trial court overruled the general and special demurrers of the defendants and denied their oral motions to dismiss; and, after hearing evidence, ordered the defendants to interplead their respective claims, restraining the defendant Allen as so prayed. The defendants assign error on each order of the trial court.
The plaintiff, Mrs. Marion Nixon, is seeking to require the defendants in this case to interplead their "respective claims" to a real-estate commission under Code § 37-1503, which provides: "Whenever a person shall be possessed of property or funds, or owe a debt or duty, to which more than one person *550 shall lay claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead."
While the plaintiff alleges that only one commission is owed for the sale of her real estate, that both defendants are claiming said commission, and that she in law or in fact does not know who made the alleged sale, the allegations of her petition affirmatively show: that she entered into a contract of exclusive listing for the sale of said property with the defendant Lilley for a period of thirty days; that defendant Lilley did not obtain a sale of the property within the time of the exclusive listing; that subsequently to the termination of the exclusive listing with the defendant Lilley, the plaintiff listed the property with the defendant Allen; that Allen procured a buyer, one Mr. Sales, for the property; and that an agreement of sale was made with said buyer, who deposited $500 earnest money with defendant Allen, which fund Allen claims as a partial commission for inducing the sale.
Under the face of these admissions, the contradictory statement that the petitioner does not know who in law or in fact made the alleged sale, and the bare allegation that the defendant Lilley claims the commission and claims she made the sale, do not support a case for interpleader. "A stakeholder is not entitled to protection by a court of equity to the extent of being saved from all shadow of risk; and so where he is in possession of all the facts and there is no question of law which is reasonably debatable, his petition for interpleader should be denied." Lassiter v. Bank of Dawson, 191 Ga. 208, 221 (11 S.E.2d 910). "Real doubt or danger alone authorizes one to file a petition for interpleader. It must appear from the allegations of the petition that the conflicting claims of the defendants are of such character as to render it doubtful or dangerous for the plaintiff to act; and in order to do this it is necessary that such claims be set forth so as to inform the court of their nature, character, and foundation, certainly to the extent of enabling the court to determine whether or not an interpleader is essential to the plaintiff's protection." Knight v. Jackson, 156 Ga. 165, 167 (118 S.E. 661). The petition clearly shows a claim by defendant *551 Allen for the commission, part of which is already in his hands, which the petitioner might reasonably conclude that she could not in safety ignore. The plaintiff by her own allegations of fact, that defendant Allen interested one Mr. Sales in her property, and that she agreed to sell it to him, shows that the alleged "claim" of the defendant Lilley to the commission claimed by Allen for the actual sale of the property, does not "`create a reasonable doubt' as to his safety in undertaking to determine for himself to whom the fund belongs." Franklin v. Southern Ry. Co., 119 Ga. 855(1) (47 S.E. 344). Certainly, the mere allegation that the defendant Lilley contends she made the sale and that she is entitled to the commission was insufficient to set out a claim on her behalf that conflicts with the claim of the defendant Allen of such character as to render it doubtful or dangerous for the plaintiff to act, and the allegations are insufficient to inform the court of the nature, character, and foundation of the defendant Lilley's claim, so as to enable the court to determine whether or not interpleader is essential to the plaintiff's protection. See Reed v. Metropolitan Life Ins. Co., 206 Ga. 604 (58 S.E.2d 183); Lowery v. Independent Life &c. Ins. Co., 209 Ga. 753 (76 S.E.2d 5).
When the allegation, that defendant Lilley claims a commission for the sale of the property, is construed together with the allegations that the plaintiff and the defendant Lilley had entered into a contract of exclusive listing of the property, and that subsequently to the termination of that contract, the plaintiff had engaged the defendant Allen, who procured a buyer with whom an agreement of sale was made, it is readily apparent that the defendant Lilley is not involved in a contest with the defendant. Allen for the particular or single commission put in issue by the plaintiff, but rather is engaged directly with the plaintiff in a controversy arising out of the rights and liabilities springing from the contract of exclusive listing which is wholly unconnected and disassociated with the defendant Allen's claim.
It is obvious from the face of the petition that the rights of the defendant Allen to a commission for inducing the sale of the plaintiff's real estate are not dependent upon the rights of the defendant Lilley; and that the claim of the defendant Lilley, if *552 any, presents a question of double liability and not of double vexation for one liability. A double liability being possible, the plaintiff is not in that disinterested attitude as to the conflicting claimants which is essential to a bill of interpleader or bill in the nature of interpleader. See Little & Green v. Davis, 140 Ga. 212(2) (78 S.E. 842); Manufacturers Finance Co. v. Jones Co., 141 Ga. 619 (81 S. E.1033); Gardner v. Haas, Howell & Dodd, 178 Ga. 685 (173 S.E. 863). See also Newsum v. Interstate Realty Co., 152 Tenn. 302 (278 S.W. 56), which was cited with approval in the Gardner case, supra.
The ruling in headnote one of Little & Green v. Davis, 140 Ga. 212, supra, relied upon by the plaintiff, is not applicable here. In that case the petition alleged that the plaintiff listed a piece of real estate with several real-estate agents; that each of two defendants claimed to have effected the sale; that, under a universal custom in Atlanta when the same piece of property is placed for sale with a number of real-estate agents, the commission is to be paid to the agent bringing about the sale; and that, there being no different agreement made "in this case, there is consequently and implied contract that only one commission is to be paid." It was there held that under these allegations the plaintiff owed but a single debt and no question of a double liability could arise under the allegations of the petition. In the instant case the petition alleges two separate contracts of listing for the sale of the plaintiff's property, and seeks to require the defendants to litigate between themselves over a fund resulting from the inducing of a sale by one of the defendants and there is a possibility under the allegations of the petition that the plaintiff may be liable to both parties. It is essential to an interpleader that the plaintiff be liable to only one of the defendants and never by any possibility to both. It is of interest to note that in headnote two of the Davis case, supra, this court held that under the answers of the defendants and the evidence, the plaintiff "was clearly divested of his character as a disinterested stakeholder, and the right to require the other parties to interplead was therefore lost."
The court having erred in overruling the general demurrer of *553 each defendant, it follows that the order requiring the defendants to interplead was nugatory.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338332/ | 200 Va. 281 (1958)
EDWARD LEE COOK
v.
RUBY SHOULDER.
Record No. 4844.
Supreme Court of Virginia.
December 1, 1958.
Richard W. Smith (Wayt B. Timberlake, Jr.; Timberlake & Smith, on brief), for the plaintiff in error.
Philip Lee Lotz (Forest T. Taylor, on brief), for the defendant in error.
Present, Eggleston, C.J., and Buchanan, Miller, Whittle, Snead and I'Anson,
1. Plaintiff was struck by defendant's automobile as she was crossing a highway in the late afternoon during a heavy rain. She had alighted from a bus, waited for it and two following cars to pass, then walked rapidly across the road. Though she paused at the center line and testified that she looked both ways before advancing into the eastbound lane where she was struck, she admitted she never saw defendant's approaching vehicle, though it was only a few yards distant. Under this evidence it was properly ruled that she was guilty of negligence as a matter of law.
2. Error was committed, however, in granting an instruction on the theory of last clear chance. Under this doctrine a negligent plaintiff can recover only if the defendant's negligence is the sole proximate cause of the injury; but plaintiff here had an equal opportunity to avoid the accident, her active negligence continuing up to the time of the impact. Nor did defendant, after he reasonably realized plaintiff was in peril, have time for effective action. All facts having been fully developed at the trial, final judgment was entered for defendant.
Error to a judgment of the Circuit Court of Augusta county. Hon. Wm. S. Moffett, Jr., judge presiding. The opinion states the case.
WHITTLE
WHITTLE, J., delivered the opinion of the court.
Mrs. Shoulder sued Cook, alleging damages for personal injuries received when she, a pedestrian, was struck by his automobile, at about 4:50 p.m., on U.S. Route 254, west of the corporate limits of the city of Staunton. In his grounds of defense Cook denied any negligence on his part and charged that Mrs. Shoulder was guilty of contributory negligence.
Upon the trial of the case Cook's motion to strike the plaintiff's evidence at the conclusion thereof was overruled, and at the conclusion of all the evidence the court again overruled his motion to strike. The court held, however, that Mrs. Shoulder was guilty of negligence as a matter of law but ruled that the case should go to the jury on the issue of last clear chance. The case was thus submitted to the jury under a last clear chance instruction over the objection and exception of the defendant.
Following a verdict for the plaintiff, defendant moved that it be set aside as contrary to the law and the evidence and without evidence to support it. The motion was overruled and final judgment entered. We granted defendant a writ of error.
Defendant assigns four errors and says: "The controlling issue is whether the judgment can be sustained under the last clear chance doctrine which was submitted to the jury over defendant's objection."
Stripped of non-essentials, the record discloses that the highway at the point of accident runs east and west and is a macadam road 19 feet wide, marked into two lanes of travel. It was raining hard at the time of the accident, and the visibility was poor. Defendant was driving his automobile east toward Staunton and the plaintiff was in the act of crossing the highway from north to south at a point where a road or driveway intersects the highway. The road is straight at that point, and in the direction from which defendant was coming, normally his car would have been visible for more than 300 yards.
Plaintiff's husband was seated in the front of his automobile which was parked facing south, on the intersecting dirt road, about 12 or 15 feet from the southern edge of the hard surface of the highway. He had come there to meet his wife who had alighted on the north side of the highway from a bus which was traveling west. While he did not see the impact, looking through the rear window *283 of his car he watched his wife as she attempted to cross the highway. It was necessary for Mrs. Shoulder, after alighting from the bus, to cross to the south side of the highway in order to join her husband. She said she raised her umbrella and waited for the bus and two cars behind it to pass; that before undertaking to cross she first looked to the east and then to the west and saw nothing coming. She said the visibility was such that she could barely see the bus and the two cars following it when she started to cross; that she could not estimate the distance she could see; that she then walked "pretty fast", about as fast as possible without breaking into a run, and crossed the westbound lane of the highway, momentarily paused in the center of the road and again looked both directions and saw nothing coming; whereupon, continuing her fast pace, she left the center of the highway and proceeded to cross the eastbound lane when she was struck by defendant's car. Mrs. Shoulder described her attempted crossing as follows:
"Q. Isn't it true that you ran across the road?"
"A. I didn't run. I was walking pretty fast."
"Q. You were walking as fast as possible without breaking into a run?"
"A. Yes, sir."
"Q. Are you certain you were not running?"
"A. Yes, sir."
"Q. Is that correct?"
"A. Yes, sir."
"Q. After you got to the center of the road, you paused a second or so?"
"A. Yes, sir."
"Q. You still didn't see the Cook car?"
"A. No, sir."
"Q. You never did see it until you were actually struck?"
"A. I didn't see it then."
"Q. You never did see the car?"
"A. No, sir."
"Q. You can't tell the court and jury where the Cook car was when you crossed the road?"
"A. I didn't see it."
"Q. You can't say where it was as you got to the center because you didn't see it?"
"A. That's right." *284
It is obvious that Mrs. Shoulder at no time saw the defendant's automobile which was manifestly within her view.
Plaintiff's husband testified that defendant's car came to a stop about 128 feet from the point of impact; that plaintiff was thrown 29 feet into a ditch which was located 8 feet from the south side of the highway; that defendant's car had no lights on it after the accident; that due to poor visibility he had operated his car with headlights on low beam.
Defendant testified in his own behalf and also called his passenger, John Ott, as a witness. Except for distances the evidence of the defendant and Ott did not vary materially from that of plaintiff. Defendant said he was on his way to work with Ott, a fellow workman; that he was traveling in his proper lane at an estimated speed of 30 to 35 miles per hour; that his parking lights were on. Ott fixed the speed at from 30 to 40 miles an hour. Defendant saw the bus and one or two cars approaching as he neared the scene of accident. There is some conflict in defendant's version of where plaintiff was when he first saw her. He says he saw her running across the road from behind a westbound car, with her umbrella over her head. However, there is no conflict in the evidence that both defendant and Ott saw the plaintiff stop in the center of the road and look in their direction. This fact is in agreement with plaintiff's own testimony. At the time she stopped she was in plain view of defendant and his passenger, Ott, and there was nothing to obstruct her view of the oncoming car.
Ott stated he plainly saw her face as she lowered her umbrella and that her face was not visible again until the impact; that she stopped before entering the eastbound lane, looked, and started running again; that when he first saw her she was running at a point in the middle of the westbound lane, and between 50 and 60 feet from the approaching car; that when she ran from the center of the road into the eastbound lane she was one and one-half car lengths from defendant's car.
The farthest distance defendant puts her from his car is 100 feet when he saw her at the side of the highway, and 50 feet when she started to cross the eastbound lane. He testified that he veered to the right when he saw her crossing the westbound lane, and when she started moving again after stopping in the center, he put on his brakes and cut to the right and then to the left in an effort to miss her, skidding his car in the process; that about three inches of the *285 right front headlight struck plaintiff when she was about halfway across the eastbound land, and that he almost missed her completely.
Under the related evidence the negligence of the plaintiff is inescapable, and the court properly ruled that she was guilty of negligence as a matter of law.
While it is true that the weather conditions then prevailing rendered the visibility poor, the evidence discloses that both Cook and his passenger, Ott, saw Mrs. Shoulder just before she entered the highway and, she being visible to them, surely the automobile would have been visible to her had she looked. Then, too, the husband had seen his wife crossing the highway, and she saw his car parked on the south side waiting for her.
We have held that where a pedestrian looks for an approaching automobile before attempting to cross a street or highway he is presumed in law to have seen that which he should have seen had his observation been careful and attentive. He cannot justify by saying that he looked and did not see the approaching car that injured him when, if he had looked, he must have seen it.
Hooker Hancock, 188 Va. 345, 49 S.E.2d 711.
In this instance Cook first became aware of the presence of Mrs. Shoulder when she was standing on the side of the highway, at which time he was 100 feet from her. She was then in a place of safety and, as aforesaid, his car was obviously plainly within her view. She left this place of safety and, walking fast, crossed the westbound lane of the highway; she momentarily paused before entering the eastbound lane, at which time she struck out across the lane directly into the path of the car. Until she started to cross the eastbound lane, there was nothing to indicate to defendant that she would recklessly undertake to cross that lane in front of his car for he had just observed her look toward his plainly visible oncoming vehicle. When she entered the lane the automobile was within 50 or 60 feet of her, traveling at the normal rate of 30 to 40 miles an hour. The distance the car had to travel before striking Mrs. Shoulder at the speed at which it was traveling involved only a fraction over one second in time.
The last clear chance doctrine, whether considered as a limitation upon or an exception to the common law rule of contributory negligence, allows a negligent plaintiff to recover only if his negligence was in fact not a proximate cause but only a remote cause or condition of the accident, and the negligence of the defendant was *286 the sole proximate cause. Where the opportunity to avoid an accident is as available to the plaintiff as to the defendant, then the plaintiff's negligence is not a remote cause but continues as a proximate cause. Hopson Goolsby, 196 Va. 832, 840, 86 S.E.2d 149, 154; Greear Noland Co., 197 Va. 233, 238, 89 S.E.2d 49, 53.
In this instance it is clear that Mrs. Shoulder was not a helpless person in peril. She was inattentive and negligent. She could have avoided the mishap at any time before she was struck, and her active negligence continued up to the time of the impact. Under the rule approved in Greear Noland Co., supra,
(197 Va., at pp. 238, 239) Cook's duty did not begin until after he saw Mrs. Shoulder and realized or should have realized that she was in danger and oblivious of her peril. The question arises as to whether or not at that time he was negligent in failing to exercise ordinary care when once his duty began. This poses the question: Did he have time for effective action? If not, his chance was not a clear chance. The rule presupposes time for effective action and is not applicable when time it too short to avoid the accident by the exercise of reasonable care. Stark Hubbard, 187 Va. 820, 48 S.E.2d 216; Davis, Adm'x Scarborough, 199 Va. 100, 97 S.E.2d 731.
The evidence discloses that Cook made strenuous efforts to save plaintiff from the consequences of her negligence. It shows that the distance of 50 feet did not afford defendant, traveling at 30 to 40 miles an hour, an opportunity for effective action. Plaintiff has failed to carry the burden of proof to the contrary. Defendant cannot be charged with a wrong choice of action (if such be shown) under the emergency created by the plaintiff. Under the evidence, there was not sufficient time for effective action after Cook discovered Mrs. Shoulder's peril. In order to apply the doctrine of the last clear chance we would have to disregard the continuing negligence of the plaintiff and hold that such was not a cause but only a condition of the accident, when clearly it was an immediate, proximate and efficient cause thereof. It never became remote. Hardiman Dyson, 194 Va. 116, 122, 72 S.E.2d 361, 365.
The trial court should have sustained defendant's motion to strike the evidence or should have set aside the verdict and entered judgment for the defendant. Since it appears that all of the facts were fully developed in the trial, the judgment complained of is reversed and final judgment entered here for the defendant. Code, | 8-493.
Reversed and final judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338357/ | 105 S.E.2d 196 (1958)
249 N.C. 61
Evangeline Koutro HICKS
v.
Lottie M. KOUTRO, Individually, and Lottie M. Koutro, Administratrix C.T.A. of the Will of Van P. Koutro, and Agamemnon Koutro.
No. 181.
Supreme Court of North Carolina.
October 15, 1958.
*199 Bell, Bradley, Gebhardt, & DeLaney, Charlotte, by Ernest S. DeLaney, Jr., Charlotte, for plaintiff, appellant.
L. B. Hollowell, Hugh W. Johnston, Gastonia, for defendants, appellees.
HIGGINS, Justice.
The judgment recites the parties waived a jury trial. The Court is bound by the recital. Exception No. 1 is not sustained. There is nothing in the case to show the judgment was entered out of term. The presumption of regularity prevails. Exception No. 2 is not sustained.
The question raised by the plaintiff's Exception No. 3 presents real difficulty. The pleadings raise issues of fact as to whether the Administratrix C.T.A. has mismanaged the estate and whether a receiver should be appointed on that account. Can the court, by consent, enter a fragmentary judgment settling a part of the case and leave part of the issues to be settled at a later date or in another action? A judgment is conclusive as to all issues raised by the pleadings. When issues are presented it is the duty of the court to dispose of them. Parties, even by agreement, cannot try issues piecemeal. The courts and the public are interested in the finality of litigation. This idea is expressed in the Latin maxim interest reipublicae ut sit finis litium, that there should be an end of litigation for the repose of society. Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1. "The law requires a lawsuit to be tried as a whole and not as fractions. Moreover, it contemplates the entry of a single judgment which will completely and finally determine all the rights of the parties." Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384, 395. "A party should be required to present his whole cause of action at one time in the forum in which *200 the litigation has been duly constituted." Jenkins v. Jenkins, 225 N.C. 681, 36 S.E.2d 233, 234; Jefferson v. Southern Land Sales Corp., 220 N.C. 76, 16 S.E.2d 462. "Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from a final judgment." City of Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669, 671.
The judgment here involved shows the court passed on only one of the issues and leaves others to be determined at another time or "in a subsequent action brought by the plaintiff in the event such action becomes necessary."
The court, in the judgment, "concludes that the doctrine of election is not applicable in this case." The court makes no findings of fact upon which the question of election may be determined. It appears from the will that the testator had acquired considerable property. By admission of the parties he devised four separate parcels with improvements to his wife, Lottie M. Koutro, in fee. He devised two parcels of land to his son, Agamemnon Koutro. He devised one lot and improvements to his granddaughter, the plaintiff. All the foregoing he owned in fee. Another lot and improvements he devised to the plaintiff in fee. Still another lot with improvements he devised to the defendant, his wife, for life with remainder to the plaintiff. The two properties last described were held by the testator and his wife as tenants by the entireties. We know nothing of the value of the four tracts the testator devised to his wife. We know nothing of the value of the properties she acquired by survivorship. These unfound facts would be important on the question of election. The court should find what the defendant administratrix C.T.A. has done in carrying out the provisions of the will, and especially what she, as devisee, has done with respect to the properties devised to her in fee. The question whether Lottie M. Koutro was put to an election is controlled by the intent of the testator. This intent must be gathered from the will, but the value of the properties conveyed at the time the will was made are attendant circumstances which well may be material on the question of intent. Wachovia Bank & Trust Co. v. Wolfe, 245 N.C. 535, 96 S.E.2d 690. The court, in the judgment, does not attempt to determine the testator's intent, but holds that the doctrine of election is not applicable.
For the reasons here indicated, the judgment of the superior court is set aside and the case is remanded to the Superior Court of Gaston County for another hearing.
Reversed and remanded.
PARKER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338350/ | 105 S.E.2d 289 (1958)
249 N.C. 102
John B. PRESSLEY
v.
Lawrence James TURNER, Geraldine Markham, also known as Carol Brooks, and Parents' Institute, Inc., a Corporation.
No. 233.
Supreme Court of North Carolina.
October 29, 1958.
*291 Elbert E. Foster and Charles M. Welling, Charlotte, for plaintiff appellee.
Kennedy, Covington, Lobdell & Hickman, Charlotte, for defendant Parents' Institute, Inc., appellant.
RODMAN, Justice.
By the express language of our statute, G.S. § 1-105, the operation of a motor vehicle by a nonresident on the highways is the equivalent of the appointment of the Commissioner of Motor Vehicles as process agent for the nonresident. Neither *292 ownership nor physical presence in the motor vehicle is necessary for valid service. It is sufficient if the nonresident had the legal right to exercise control at the moment the asserted cause of action arose. Winborne v. Stokes, 238 N.C. 414, 78 S.E.2d 171; Davis v. Martini, 233 N.C. 351, 64 S.E.2d 1; Ewing v. Thompson, 233 N.C. 564, 65 S.E.2d 17; Queen City Coach Co. v. Chattanooga Medicine Co., 220 N.C. 442, 17 S.E.2d 478; Wynn v. Robinson, 216 N.C. 347, 4 S.E.2d 884. The findings of fact suffice to sustain the service of process.
Institute maintains that Markham was not an agent or servant but an independent contractor. The distinction between an independent contractor and a servant, employee, or agent has been clearly drawn in numerous recent cases. Pearson v. Peerless Flooring Co., 247 N.C. 434, 101 S.E.2d 301; Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220; Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298; Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137; Kesler Construction Co. v. Dixson Holding Corp., 207 N.C. 1, 175 S.E. 843; Aderholt v. Condon, 189 N.C. 748, 128 S.E. 337. Tersely stated, the test which will determine the relationship between parties where work is being done by one which will advantage another is: Who is boss of the job? Work done by one which benefits another is normally the result of a contract. The relationship existing between the worker, on the one hand, and the beneficiary, on the other, may be variously indicated as servant, agent, or employee, each of whom has the same legal relationship to the beneficiary of the work, or, on the other hand, he may be called an independent contractor. All who work do so by virtue of a contract. The servants, the agents, the employees, the executives are not independent. They are subject to orders and under the control of the party for whom the work is being done; and because of the right to control, the doctrine of respondeat superior applies. But when in fact the one doing the work is independent and free from control, the beneficiary is not responsible for the manner in which the work is done.
Recognizing that the right to control is the proper test to determine the validity of service of process, Institute contends two facts stated in its affidavit and not specifically challenged by the evidence for the plaintiff establish that Markham was an independent contractor. These facts are: (1) Markham received no fixed salary, but was paid on a commission basis, and (2) Markham fixed her own hours of work. If it be conceded that these are facts, they do not singly nor in combination serve to establish the relationship of independent contractor. They are at most but signs which must be considered with other indicia to determine the true status of the parties.
The fact that Institute did not prescribe the hours that Markham should keep the office open, or when she should be out soliciting subscriptions to its magazines, or when her work should begin or terminate is, under the facts of this case, of little probative value. Certainly it is not unusual for the manager of an office to establish his own hours of work, to determine when he shall be at his desk, when he shall be out training personnel, or when he shall be engaged in promoting sales. A manager who prescribes his own and the janitor's hours of work is, in the eyes of the law, as much a servant as the janitor so far as imposing liability on the employer for the manner in which the task assigned is performed.
Institute furnished blank receipts to Markham for completion when money was paid to her for magazines sold or for delinquent accounts collected. These receipts prepared by Institute designate her as "agent." Markham refers to herself as "manager" or "employee." The fact that the parties found a commission on monies received from sales or collections a satisfactory means of compensation rather than a fixed salary is of no real moment. *293 Certainly it is not sufficient to overcome other evidence tending to establish agency with its inherent right to control.
The evidence is, in our opinion, sufficient to sustain the findings of fact, and since the findings support the conclusions and judgment, it follows that the judgment is
Affirmed.
PARKER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338334/ | 105 S.E.2d 809 (1958)
249 N.C. 180
F. A. FREEMAN
v.
Hubert BENNETT.
No. 525.
Supreme Court of North Carolina.
November 19, 1958.
*810 Ottway Burton and Don Davis, Asheboro, for plaintiff, appellant.
No counsel (in this Court) contra.
BOBBITT, Justice.
We take judicial notice of the fact that the next term of Randolph Superior Court after March 15, 1958, convened April 7, 1958 ("the fifth Monday after the first Monday in March to continue two weeks for the trial of civil cases only," G.S. § 7-70, as amended by Ch. 1373, Session Laws of 1955), and that the presiding judge was the regular superior court judge then holding the courts of the Nineteenth Judicial District.
Nothing in the record indicates that defendant moved at said April 7th Term for a writ of recordari or otherwise brought to the attention of the presiding judge any matter relating to the status of his purported appeals.
In Starr Electric Co. v. Lipe Motor Lines, 229 N.C. 86, 47 S.E.2d 848, Winborne, J. (now C. J.), reviews the statutes and cites the prior decisions of this Court relevant to the procedure for perfecting an appeal to the superior court from a judgment of a justice of the peace.
Judge Thompson found as a fact that defendant docketed his appeal during said April 7th Term, to wit, on April 14, 1958. However, plaintiff excepted specifically to this finding of fact and to each of the other findings of fact upon which Judge Thompson's order was based; and the agreed case on appeal, signed by counsel for the respective parties, does not include the evidence, if any, upon which these findings were based.
Assuming defendant's appeal was docketed on April 14, 1958, the justice of the peace did not make a return to the superior court and file with the clerk thereof the papers, proceedings and judgment in the case within ten days after defendant's notice of appeal in open court as required by G.S. § 7-181. Had he done so, the appeal would have been docketed more than ten days prior to the commencement of said April 7th Term. Compare Starr Electric Co. v. Lipe Motor Lines, supra. While docketing on April 14, 1958, if such occurred, would obviate the necessity of having the papers sent up under compulsion of a writ of recordari, there would remain for decision the question as to whether the failure of the justice of the peace to comply with G.S. § 7-181 was caused by defendant's default. This would present a question of fact for the court, determinable on the basis of the evidence presented, *811 as in case of a hearing on a petition for writ of recordari.
Nothing appears to indicate that defendant either pleaded or offered evidence tending to show that he was not in default in respect of the failure of the justice of the peace to make return, etc., as required by G.S. § 7-181.
When a question of fact is presented for decision, the court's findings are conclusive on appeal if supported by competent evidence. Fairchild Realty Co. v. Spiegel, Inc., 246 N.C. 458, 465, 98 S.E.2d 871. Moreover, it is presumed that findings of fact are supported, hence conclusive on appeal, unless challenged by appropriate exceptions. Wyatt v. Sharp, 239 N.C. 655, 658, 80 S.E.2d 762. Even so, when, as here, each material finding of fact is challenged by specific exception, such findings cannot stand in the absence of evidence in the record tending to support them. Scott & Co. v. Jones, 230 N.C. 74, 52 S.E.2d 219.
While, upon this record, it appears that the order of Judge Thompson cannot be sustained, the question arises as to whether plaintiff had the right of immediate appeal therefrom. This question was not discussed in plaintiff's brief. No brief was filed in behalf of defendant.
Bynum, J., in Perry v. Whitaker, 77 N. C. 102, stated: "An appeal lies from an order of the judge either granting or refusing to grant the writ (of recordari), * * *" In accord: Collins v. Gilbert, 65 N.C. 135; Barnes v. Easton, 98 N.C. 116, 3 S.E. 744; Hunter v. Atlantic Coast Line R. Co., 161 N.C. 503, 77 S.E. 678; Id., 163 N.C. 281, 79 S.E. 610.
Rule 14, Rules of Practice in the Superior Courts, 221 N.C. 574, 577, in pertinent part, provides: "The Superior Court shall grant the writ of recordari only upon the petition of the party applying for it, specifying particularly the grounds of the application for the same. The petition shall be verified and the writ may be granted with or without notice; if with notice, the petition shall be heard upon answer thereto duly verified, and upon the affidavits and other evidence offered by the parties, and the decision thereupon shall be final, subject to appeal as in other cases; * * *." See Barnes v. Easton, supra.
The cases cited below either decide or contain expressions to the effect that an immediate appeal does not lie from an order granting the writ of recordari.
1. In Merrell v. McHone, 126 N.C. 528, 36 S.E. 35, plaintiffs' appeal to this Court was from a final judgment in favor of defendant after trial on the merits in the superior court. Plaintiff had obtained a judgment before a justice of the peace. A superior court judge had denied plaintiffs' motion to dismiss defendant's purported appeal therefrom and had granted defendant's motion for writ of recordari. Plaintiffs excepted to this ruling but proceeded to trial. This Court, upon plaintiffs' appeal from said final judgment, held that the writ of recordari had been properly issued. The opinion contains the following: "No appeal lay from such refusal (Perry v. Whitaker, 77 N.C. 102), and it was properly entered as an exception. The final judgment being against the plaintiff, it now comes up for review. Had the final judgment been in favor of the plaintiff, the exception would then have become immaterial, and an appeal unnecessary." The decision would seem to be direct authority only for the proposition that a plaintiff may except to such ruling and bring his exception forward on his appeal from a final adverse judgment after trial in the superior court.
2. In Taylor v. Johnson, 171 N.C. 84, 87 S.E. 981, 983, plaintiff's appeal to this Court was from the denial of his motion in the superior court to dismiss defendant's purported appeal from a judgment in plaintiff's favor rendered in the Harnett County Recorder's Court. It appeared that the defendant had not docketed his appeal or *812 moved for recordari or certiorari within the prescribed time. While this Court stated that the defendant's appeal should have been dismissed on plaintiff's motion, the decision was "Appeal dismissed." The statement in the opinion, pertinent to this feature of the case, is the following: "Under our decisions it seems that an appeal does not lie to the Supreme Court from a ruling of this character; the better practice being to note an exception and proceed to a further disposition of the cause." (Our italics.) No decisions are cited in support of the quoted statement.
3. In Bargain House v. Jefferson, 180 N.C. 32, 103 S.E. 922, 923, plaintiff obtained a judgment before a justice of the peace. Defendant did not docket his appeal or move for recordari within the prescribed time. Later, without notice to plaintiff, defendant obtained a writ of recordari. The hearing was on plaintiff's motion to dismiss the writ of recordari, which motion was denied and plaintiff appealed. This Court said: "The writ of recordari was improvidently granted, and the motion to dismiss should have been granted." However, the decision was "Appeal dismissed." The statements in the opinion, pertinent to this feature of the case, are the following: "An appeal lies from the dismissal of an action, or of an appeal, for that is final; but it does not lie from the refusal to dismiss, for an exception should be noted and an appeal lies from the final judgment. Clements v. [Southern] R. Co., 179 N.C. 225, 102 S.E. 399. If the party loses, then the whole case will come up for review." The cited case (Clements v. Southern R. Co.) did not involve an appeal from a justice of the peace. In the superior court action, defendant entered a special appearance and moved to dismiss on the ground that there had been no valid service of process. Plaintiff appealed from an order allowing defendant's said motion and dismissing the action; and, upon such appeal, the said order was reversed.
4. In Stewart v. Craven, 205 N.C. 439, 171 S.E. 609, plaintiff obtained a judgment before a justice of the peace. Defendant applied within the prescribed time for a writ of recordari, which was granted, presumably without notice to plaintiff. The hearing was on plaintiff's motion to set aside the writ of recordari. Upon findings of fact, the superior court judge approved the issuance of the writ of recordari and denied plaintiff's said motion to have it set aside. Plaintiff excepted and appealed. The decision was "Appeal dismissed." The opinion stated: "It was held in Perry v. Whitaker, 77 N.C. 102: No appeal lies from the refusal of the court below to grant a motion to dismiss a petition for a writ of recordari." Further, the opinion quotes the excerpt from Merrell v. McHone, supra, quoted above. The opinion cites both Hunter v. Atlantic Coast Line R. Co., supra, and Bargain House v. Jefferson, supra. As to whether an appeal presently lies from such order, it would seem that Hunter v. Atlantic Coast Line R. Co., supra, and Bargain House v. Jefferson, supra, are in direct conflict.
It is noted that Hunter v. Atlantic Coast Line R. Co., supra, cites Perry v. Whitaker, supra, and also Barnes v. Easton, supra, in support of the proposition stated in the first headnote as follows: "An appeal presently lies from an order of the Superior Court granting a motion for a writ of recordari to a justice's court and directing that the cause be set down for trial de novo, and the trial judge should find and declare the facts upon which he based the order, when it is appealed from to the Supreme Court."
It is noted further that Stewart v. Craven, supra, cites Perry v. Whitaker, supra, and Merrell v. McHone, supra, in support of the proposition stated in the headnote as follows: "No appeal lies from the refusal of the Superior Court to set aside a writ of recordari granted in the cause."
To resolve the conflict, it becomes necessary to examine closely the decision in Perry v. Whitaker, supra.
It is first noted that Whitaker, plaintiff, obtained a judgment before a justice of the *813 peace against G. W. Perry and W. R. Perry, hereinafter called Perry, defendants. Apparently, contrary to the usual practice, the case is styled "W. R. Perry v. J. D. Whitaker" because Perry petitioned for writ of recordari and Whitaker answered and moved to dismiss Perry's petition.
While not presently material, it is next noted that the first sentence in the opinion of Bynum, J., in the reprint, is: "This is a petition for a writ of certiorari." This is an error. In the original Report, the first sentence reads: "This is a petition for a writ of recordari."
The following excerpt from the opinion of Bynum, J., which includes the portion quoted above, shows clearly the nature of the order held nonappealable, viz.: "An appeal lies from an order of the judge either granting or refusing to grant the writ, but no appeal lies where the judge has done neither the one nor the other, which is our case. When the plaintiff filed his petition, the defendant moved to dismiss it, and upon the refusal of the judge to dismiss, he appealed to this Court. A refusal to dismiss at that stage of the case was by no means the same as or equivalent to granting the writ. Before final action, the judge desired, and it was his duty, to ascertain the facts; hence he ordered the defendant to answer the allegations of the petition. The defendant did answer, notwithstanding his appeal, denying many of the allegations of the petition, and thus raising questions of fact for the decision of the court. But without awaiting the finding of the judge upon these issues or any judgment granting or refusing the writ, and without predicating any motion upon the petition and answer, the defendant prosecuted and relied upon his previous appeal. The appeal was precipitate and from no appealable order or judgment. Whether a writ of recordari ought to have been issued depends upon the facts. No facts are found by his Honor, and we cannot, therefore, see whether he ought or ought not to have issued the writ. But owing to the hasty appeal, his Honor was prevented from either finding the facts or giving a judgment granting or refusing the recordari." (Our italics.)
The foregoing excerpt from the opinion of Bynum, J., impels the conclusion that this Court in Perry v. Whitaker, supra, expressly recognized and declared that an appeal did lie from an order which either granted or refused a petition for a writ of recordari.
After considering our prior decisions, together with Rule 14, Rules of Practice in the Superior Courts, supra, we are constrained to follow the rule stated in the first headnote in Hunter v. Atlantic Coast Line R. Co. supra. Hence, expressions in the later cases, whether dicta or the basis of decision, to the extent in conflict therewith, may be considered as withdrawn as authoritative statements of this Court. However, this should be noted: If, with reference to a purported appeal by defendant from a judgment of a justice of the peace, defendant's petition for writ of recordari is granted and plaintiff's motion to dismiss the appeal is denied, plaintiff may reserve exception to this ruling and bring it forward in the event he appeals from a final adverse judgment after trial in the superior court. Ordinarily, this would be the better practice.
The order of Judge Thompson is vacated and the cause remanded to the end that a further hearing may be had on plaintiff's motion to dismiss defendant's said appeals and on such motions, if any, as defendant may see fit to make relative to its right, if any, to trials de novo in the superior court.
Order vacated and cause remanded.
PARKER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338358/ | 105 S.E.2d 181 (1958)
Alfonso THURSTON
v.
Joe KEATHLEY.
No. 10956.
Supreme Court of Appeals of West Virginia.
Submitted September 23, 1958.
Decided October 14, 1958.
Damron & Damron, O. D. Damron, Logan, for plaintiff in error.
Coleman A. Hatfield, Logan, for defendant in error.
DUCKER, Judge.
Alfonso Thurston, plaintiff below, obtained a jury verdict for $258.77 and recovered a judgment thereon in the Circuit Court of Logan County against Joe Keathley, defendant below and plaintiff in error here, in an action of trespass on the case for damages to plaintiff's automobile sustained in a collision between the two automobiles of the respective parties on State Route No. 10, in the community of Low Ash in Triadelphia District of Logan County, to which judgment the defendant as plaintiff in error prosecutes this writ of error.
For convenience, the parties will be referred to herein by their original designation below as plaintiff and defendant respectively.
*182 The facts as shown by the evidence are that the plaintiff was driving his automobile on the road and in the community hereinbefore described, between noon and one o'clock in the afternoon of January 5, 1957, and the defendant was likewise driving his automobile, at said time and place, about 50 feet behind the plaintiff's car; and that when plaintiff turned his car to pass over a bridge across Buffalo Creek, plaintiff's car was struck on the right hand side by defendant's car. Plaintiff's witnesses testified that plaintiff gave approximately a 50 feet warning by signal lights on his car of his intention to turn to go over the bridge, and that the front part of plaintiff's car was partly on the bridge at the time of the collision, but defendant's witnesses testified that plaintiff gave no warning of his intention to go on the bridge, that plaintiff's car crossed over to the left hand side of the road with the left side wheels on the left side berm of the road and plaintiff then turned his car to the right to enter the approach to the bridge.
Upon the conclusion of the evidence of the plaintiff, defendant moved to strike the evidence for the plaintiff and to direct a verdict for the defendant, which motion the court overruled, and which ruling by the court the defendant now assigns as error. The defendant also makes three other assignments of error, namely that the court erred in giving to the jury Plaintiff's Instruction No. 2, and in refusing to give to the jury Defendant's Instructions Numbers 5 and 6.
As to defendant's assignment of error in overruling defendant's motion to strike plaintiff's evidence and direct a verdict in defendant's favor, defendant's counsel, in their brief make no assignment therein, but regardless of such fact, we see no merit therein. The issue was one of fact, the determination of which was solely the province of the jury, and the jury in finding for the plaintiff must have necessarily found the facts to be as testified to by the plaintiff's witnesses. This principle of law is so well established, we see no need to cite authority on this question, and Rule VI(2) of the Rules of this Court, which provides that, "No alleged error or point, not set forth in the brief, shall be raised afterwards, either by reply brief, or in oral or printed argument, * * *" eliminates any necessity for further consideration of this point.
Counsel for defendant do rely, however, on their assignments of error as to the three instructions specified.
Plaintiff's Instruction No. 2 is in the following language:
"The court instructs the jury: That it was the duty of the defendant on the occasion involved here to anticipate that he might overtake vehicles at any point on the highway and he must, in order to avoid a charge of negligence, keep a proper lookout for them, and keep his machine under such control as will enable him to avoid a collision with another vehicle, and if the situation requires it, he must slow up and stop. A failure, if any, on his part to use this care was negligence, and if this negligence, if any, was the sole, proximate cause of the damage done to the plaintiff's automobile then you will find damages in favor the plaintiff and against the defendant."
Defendant objected to the giving of Plaintiff's Instruction No. 2 in the following language:
"If the Court please, the defendant by counsel, objects to the giving of Plaintiff's Instruction No. 2, on the grounds that the same is not applicable and proper law in this case according to the facts."
Defendant advances the argument, which is effective, that Plaintiff's Instruction *183 No. 2 is a binding instruction and that it fails to negative contributory negligence on the part of the plaintiff. Nichols v. Raleigh Wyoming Mining Co., 113 W.Va. 631, 169 S.E. 451; Bragg v. C. J. Whitten Transfer Company, 125 W.Va. 722, 26 S.E.2d 217. However, it is not necessary to rest our decision as to defendant's assignment of error as to this instruction on such invalidity, because the objection made and exception taken by the defendant to this instruction is too general and not sufficiently specific to subject the instruction to judicial scrutiny.
Rule VI(e) of the Rules of Practice and Procedure for Trial Courts in West Virginia, 116 W.Va. lxiii, which rules were given effect by Chapter 37, Acts of the Legislature of West Virginia, 1935, Code, 51-1-4, is in part as follows:
"All instructions to juries shall be reduced to writing and a copy presented to opposing counsel at the conclusion of the evidence. * * * Objections, if any, to each instruction shall be made when the same is offered; specific grounds of objection only will be considered. Exceptions to the refusal to grant or to granting the same or to modified instructions shall be made at the time, or the same shall be deemed to be waived."
The provisions of this Rule are clearly applicable to the objection by counsel for defendant to this instruction, and we, therefore, hold that alleged error therein is not now a basis for a valid assignment of error, and, therefore, is not subject to review. Hale v. McGinley, 119 W.Va. 565, 195 S.E. 201; Saunders v. McCown, 120 W.Va. 294, 198 S.E. 520.
Defendant's Instruction No. 5, which was not given, and to the refusal of which by the court defendant excepted and now assigns as error, is as follows:
"The court instructs the jury that it was the duty of the plaintiff to give a signal either by hand and arm or by signal device upon his automobile of said plaintiff's intentions to turn right or left, which signal should have been given continuously during not less than the last two hundred feet traveled by plaintiff's vehicle before turning. And, the jury is further instructed that if they believe from a preponderance of the evidence in this case that the plaintiff failed to give such signal continuously for one hundred feet before turning his automobile and that such failure contributed to and was a part of the proximate cause of the accident between plaintiff's automobile and defendant's automobile, then you are instructed to find for the defendant."
Plaintiff says that the defendant's failure to specify reasons why the trial court should have given this as well as Instruction No. 6 of the defendant brings this assignment within the rule prohibiting this Court from considering the same here. Needless to say, the defendant's counsel tendered the instruction because they thought it contained the law applicable, and for anything more to be said or specified would probably amount only to duplication or argument. But it is not necessary here to decide this point, because the instruction, as is contended by plaintiff, is not proper, for it does not correctly state the law. Code, Chapter 17C, Article 8, Section 8 provides that "A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet." The instruction offered recites that such signal must be given for not less than the last 200 feet. So, without more, it would have been error to give the instruction, and, therefore, this is not a valid assignment of error.
Defendant's Instruction No. 6, which was not given and to the refusal of which by the court defendant excepted and now assigns as error, is as follows:
*184 "The court instructs the jury that every driver of an automobile upon a roadway who intends to turn, or partly turn from a direct line shall first see that such movement can be made with reasonable safety, and shall give a signal of his intention to make a lefthand turn by extending his hand and arm in a horizontal position from the left side of the vehicle continuously during not less than the last one hundred feet traveled by the vehicle before turning, and if you believe from the evidence that Alfonso Thurston violated this statute then such violation is prima facie negligence on the part of the said Alfonso Thurston, and if you further believe from the evidence that such violation was negligence on his part and that such negligence was the natural and proximate cause or a contributing cause to the collision, you should find for the defendant."
Counsel for plaintiff contends that this instruction is likewise bad for the first reason which he asserted as to the immediately preceding instruction, namely, that the reasons in support thereof were not specified, and we make no other answer to plaintiff's contention about that than we make to his contention about Instruction No. 5. However, this instruction was not proper because it did not provide for any giving of a signal, either by signal lamp or mechanical signal device, or by plaintiff extending his hand or arm, as provided in Code, 17C-8-9 and 10, and being therefore not in accordance with the law, the refusal by the trial court to give the same was not error.
For the reasons stated, we are of the opinion, and so hold, that there were no validly assigned errors by defendant, and that the judgment of the Circuit Court of Logan County should be, and is, affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338341/ | 105 S.E.2d 881 (1958)
John C. WARD, Sheriff, Adm'r, etc.
v.
RALEIGH COUNTY PARK BOARD.
No. 10931.
Supreme Court of Appeals of West Virginia.
Submitted September 9, 1958.
Decided November 25, 1958.
*882 J. W. Maxwell, C. Berkley Lilly, Anthony J. Sparacino, Beckley, for plaintiff in error.
*883 Thornhill & Thornhill, Beckley, for defendant in error.
BROWNING, Judge.
This is an action of trespass on the case by John C. Ward, Sheriff of Raleigh County, as administrator of the estate of John W. Crawford, deceased, against the Raleigh County Park Board to recover damages for the alleged wrongful death of his decedent. The jury returned a verdict for the defendant, which verdict was set aside by the trial court, and a new trial awarded the plaintiff upon the ground that error had been committed in the admission of certain testimony. The setting aside of the verdict upon this ground is the sole assignment of error in behalf of the plaintiff in error. However, the defendant in error has cross-assigned as error the action of the trial court in admitting similar testimony by other witnesses for the defendant. The declaration alleges that: The defendant owned and maintained a large artificial lake used by the public generally for swimming and boating purposes; the lake was operated on a commercial basis and for profit; the deceased and his three companions rented from the defendant one of the boats operated thereon, and secured the services of an operator for it; it was the duty of the defendant to furnish boats and equipment in a good state of repair, to maintain on said boats life preservers and other safety equipment; and to provide an operator who would exercise ordinary care for the safety of the passengers. The declaration charges the breach of these duties and resulting damages.
The facts in so far as they are pertinent show that deceased, his brother James, and two young women, Gilkerson and Blevins, engaged a boat and an operator for the customary trip of two laps around the lake, and that after the boat had completed approximately one and one-half laps James stood up in the boat, the boat sank, and decedent was drowned. This is the second time this case has been before this Court on writ of error. At the first trial, the jury returned a verdict for the plaintiff in the sum of $7,500, but the trial court set aside the verdict and sustained the demurrer of the defendant to the declaration. This Court in Ward v. County Court of Raleigh County, 141 W.Va. 730, 93 S.E.2d 44, reversed the action of the Circuit Court of Raleigh County in holding that the Park Board was immune to this action.
At the first trial, James and the two young women, Gilkerson and Blevins, testified for the plaintiff. At the second trial, the women were not in attendance and, by agreement, their testimony, given at the first trial, was read to the jury. At the first trial, Gilkerson and James denied that any of the members of their party had been drinking alcoholic liquor on the day of the accident, and this evidence was not contradicted. However, at the second trial, the defendant offered three witnesses who testified, over objection, to statements made by the witnesses James Crawford and the two women, approximately fifteen to thirty minutes after the drowning of deceased. The trial court in its opinion, stating its reasons for setting aside the verdict and granting plaintiff a new trial, specifically pointed to the testimony of defendant Lambert who quoted the witness Gilkerson as saying "we have been drinking all day." The action of the court in this regard is the sole assignment of error by the plaintiff in error. The defendant in error cross-assigned as error the action of the court in permitting the defense witnesses Powers, Lambert and Bowman to testify as follows:
"Powers: Q. Tell the jury whether or not in the course of that conversation Jimmy said to you, `Oh, My God, we had been drinking. If we hadn't been, this would have never happened,' or words to that effect? A. Yes, sir.
* * * * * *
"Q. Tell the jury whether or not either of these women made any statement there on that occasion with reference *884 to having been visiting the beer gardens that day? A. I don't recall them saying a beer garden, but I do remember they saying that they had been running around all day and had been drinking.
"Lambert: Q. What did she say to you on that occasion with reference to having been drinking? A. We have been drinking all day.
"Bowman: Q. What did they say with reference to having been drinking that day? A. They indicated they had been."
Immediately after this question, Bowman was further asked:
"Q. Did they so state? A. They did.
* * * * * *
"Q. Did you at the time that you was there smell intoxicants on their breath? A. I did."
In the above questions and answers, the "Jimmy" referred to was James Crawford, and the "they" referred to presumably were the two young women, Gilkerson and Blevins.
The record before this Court contains Defendant's Bill of Exceptions No. 1, which includes all of the evidence and testimony introduced or offered, as well as the objections and motions made by the respective parties with respect to the evidence and testimony offered and given, the rulings of the court thereon and the exceptions of the respective parties thereto. Therefore, we conclude that the cross-assignments of error of the defendant in error are before us, as well as the assignment of error of the plaintiff in error. Woodruff v. Gilliam, 116 W.Va. 101, 179 S.E. 873; State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689.
It was not error to permit the witness Powers to testify to the statement alleged to have been made by James Crawford after his brother was drowned and he and the other occupants of the boat had been pulled out of the water. Upon cross-examination of James Crawford at the second trial, proper foundation was laid for this alleged prior inconsistent statement. A different situation prevailed as to the two women, Gilkerson and Blevins. At the first trial, Gilkerson testified that there had been no drinking prior to the accident, but Blevins was not asked any question concerning that matter. It was not error to admit the testimony of the defendant's witnesses, to the effect that they smelled the odor of alcoholic liquor upon the breaths of the young women, since this evidence was admissible as contradicting the testimony of Gilkerson at the first trial, and the testimony of James Crawford at the second trial, that none of the members of the party had been drinking prior to the accident. However, the statements attributed to these witnesses could be admissible only under the res gestae exception to the hearsay rule, inasmuch as no foundation was laid at the first trial for the contradiction of these witnesses by alleged prior inconsistent statements.
There have been many definitions of the term res gestae. It is defined in Black's Law Dictionary, Third Edition, Page 1539, thus: "Things done; transactions; essential circumstances surrounding the subject. The circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character." Black cites State v. Prater, 52 W.Va. 132, 43 S.E. 230, among others, under this definition. There can be no doubt that the strict requirements of the admissibility of testimony under the so-called res gestae exception to the hearsay rule have been broadened by the decisions of this and other courts in recent times. This practice was severely criticized by former Dean T. P. Hardman of the West Virginia University Law School in an article entitled "Spontaneous Exclamation v. Res Gestae", in 26 West Virginia Law Quarterly, Page 341. Dean *885 Hardman called the phrase res gestae a "mystic shibboleth". His article is particularly critical of the decision of this Court in Starcher v. South Penn Oil Co., 81 W. Va. 587, 95 S.E. 28, 32, in which it was held that the statement of deceased, who was found apparently unconscious, and immediately after regaining consciousness, in answer to a question as to what hurt him, pointed to a broken pipe line and said: "That hurt me; it struck me in the back.", was admissible as part of the res gestae. In his article, the Dean states that: "* * * the doctrine, strictly applied, excludes all statements made after the act has occurred, for otherwise the statement can not be said to be a part of the act, i. e., `a part of the res gestae'." In Sample v. Consolidated Light & Ry. Co., 50 W.Va. 472, 40 S.E. 597, 600, 40 S.E. 694, 57 L.R.A. 186, it was held that a declaration to be part of the res gestae need not be "precisely and astronomically contemporaneous and concurrent in point of time with the principal transaction * * *." Perhaps the most dependable rule of all was laid down in Ellis v. Dempsey, 4 W.Va. 126, in which it was held that there can be no precise general rule as to what is properly admissible as a part of res gestae. Whether the name of the rule under which such testimony is admitted be called res gestae, spontaneous exclamations, or otherwise, this and all of the other courts of this country have admitted such testimony if made under the immediate and unconscious influence of the principal transaction, and at a time and under such circumstances and conditions as to preclude the idea of deliberate intent and design. In Beck v. Dye, 200 Wash. 1, 92 P.2d 1113, 1117, 127 A.L.R. 1022, the Washington Court held these to be the essential elements to the admission in evidence of a statement under the res gestae exception to the hearsay rule. "* * * (1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact, and not the mere expression of an opinion; (4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation, and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made." For reasons hereinafter stated, it is not necessary to determine whether the testimony of defendant's witnesses, relating to the statements alleged to have been made subsequent to the accident, was admissible under the res gestae exception to the hearsay rule.
The sole issue before the jury in this case was the proximate cause of the sinking of the boat. James Crawford testified that: "I raised about half way up when I seen the boat was filling up with water.", was told by the operator to sit down and did so. The two young women corroborated this statement. The operator of the boat testified that no water came into the boat until James stood up "and his weight went to the front end of the boat and it sank." Other witnesses for the defendant who were on the dock corroborated him as to the actions of James and the shouting of the operator of the boat to James to sit down. No witness testified that either the deceased, his brother James, or the two young women, was intoxicated. The operator stated that he did "not know that they had been drinking." There is no evidence that the drinking of intoxicants by any of the persons in the boat had anything to do with its sinking, except the inference that may be drawn from a statement Powers quoted James as making a *886 short time after his brother was drowned to the effect that if "we hadn't been, this would have never happened." James vehemently denied having made such statement, and also denied drinking on that day. The statement attributed to the witness Gilkerson after the accident that "we" had been drinking all day, and the statements attributed to both of these young women that "they" had been drinking prior to the accident, should not have influenced the jury in returning its verdict, even though the court, over objection, erroneously permitted the defendant's witnesses to so testify. This Court holds that if it was error to admit the testimony of the defendant's witnesses, relative to the statements of the two young women shortly after the drowning, it was harmless error. As was stated by this Court in Doman v. Baltimore & Ohio Railroad Company, 125 W.Va. 8, 22 S.E.2d 703, 706: "* * * We render high deference to the opinion of a trial judge who has set aside a verdict, but we are not bound absolutely thereby. In this case the Judge expressly found that, aside from the admission of this copy of the agreement rather than requiring the production of the original, the case was fairly tried. It would seem that the meticulous concern of the trial judge for the rights of the parties led him to assume too much blame for what he felt to be his own judicial lapse. If error at all, it was perfectly harmless, and did not require him to set aside a verdict, which otherwise he found, and we now find, to be perfectly sound."
"The court is not authorized to interfere with the verdict of a jury fairly rendered upon a mere conjecture or belief that injustice may, in its opinion have been done. All intendments and presumptions are in favor of the verdict, and the court in setting it aside must act on facts brought to its attention. It must affirmatively appear to the trial-court that the verdict was either plainly contrary to the law or the evidence, or that it was palpable (sic) unjust for some other manifest reason." Probst v. Braeunlich, 24 W.Va. 356.
The judgment of the Circuit Court of Raleigh County will be reversed, the verdict of the jury reinstated, and judgment will be entered here for the defendant, with costs in this Court and the court below.
Judgment reversed; verdict reinstated; judgment entered here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338348/ | 200 Va. 245 (1958)
HARRY LUCAS RAMSEY
v.
COMMONWEALTH OF VIRGINIA.
Record No. 4840.
Supreme Court of Virginia.
October 13, 1958.
Henry Breckinridge Vance and Robert C. Smith, for the plaintiff in error.
Present, All the Justices.
Ramsey was convicted of burning his dwelling with intent to injure the insurer, under Code 1950, section 18-158. He had insured it for $2,500, though it had cost him less half that. The evidence showed that on the night of the fire he had taken his family to a nearby church, had returned by cab to his home, and after the fire had asked the driver not to mention the fact he had done so. These and other facts were included in a hypothetical question put to an expert witness for the Commonwealth, who stated in response that in his opinion the fire was of incendiary origin, indicating by the form of his answer that Ramsey was the criminal agent. The admission of this answer was reversible error, for it was an opinion on the ultimate facts in issue, and consequently invaded the province of the jury.
Error to a judgment of the Circuit Court of Rockbridge county. Hon. William S. Moffett, Jr., judge presiding. The opinion states the case.
C. F. Hicks, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.
SNEAD
SNEAD, J., delivered the opinion of the court.
On July 2, 1957, Harry Lucas Ramsey was found guilty by a jury and sentenced to confinement in the penitentiary for one year on an indictment charging that on February 13, 1957 he did wilfully, maliciously and feloniously set fire to or burn his dwelling house, *246 with goods and chattels therein, which were insured at the time against loss or damage by fire, with intent to injure the insurer. | 18-158, Code 1950. Ramsey's motion to set aside the verdict was overruled and judgment was entered thereon.
The evidence may be summarized as follows:
Ramsey purchased an old building for $250. With the assistance of his father and neighbors it was dismantled and reconstructed on property, approximately four miles north of Buena Vista on State Highway No. 706, which he had acquired. Additional materials purchased and used in reconstructing the frame dwelling, which consisted of four rooms and rested on unmortared cinder block pillars, amounted to $292.
On January 4, 1957 Ramsey applied to Earl Starkey, an insurance agent in Buena Vista, for fire coverage in the sum of $4,000. After describing the premises Ramsey was informed by Starkey that he could not write insurance in that amount but he "might" write it for $3,000. Whereupon Ramsey stated: "Well, I have over $2,000 in material in this dwelling." Ramsey paid the required premium. The next day Starkey inspected the dwelling and wrote Ramsey advising that $1,000 was the maximum coverage he would be willing to write and refunded the premium paid. Ramsey then contacted another agent in Buena Vista, a Mrs. Paxton, who issued a standard fire insurance policy for $2,500 on the dwelling and $500 on personal property contained therein, effective January 5, 1957. This policy was in force when the dwelling and its contents were destroyed by fire.
Deputy Sheriff Elmo Cooper testified that a two and one-half ton International truck with the rear portion resting on cinder blocks had been parked with the front end facing east or toward the dwelling and approximately 15 feet from it for several months prior to the fire, and that sometime between the afternoon preceding the day of the fire and the next morning the position of the truck had been reversed so that the front end of the truck faced west or away from the house. Robert Hall, who assisted Ramsey in moving the truck, stated the land sloped and the change was made to place the rear end of the truck higher than the front end in order to prevent grease from running out of the rear end.
At about 6:45 P.M. on February 13, 1957, Ramsey and his family left their home and drove to East Lexington Church which is a distance of six and one-half miles. There was a fire burning in a *247 stove at the time of departure. Upon arrival Ramsey parked his vehicle and his family entered the church. He walked to East Lexington Grocery Store which is near the church. While there he called Pete's Taxi at 7:25 P.M. and inquired as to the round trip fare to Mountain View School which is near his residence. A taxi cab operated by Robert E. Fox soon thereafter picked up accused and drove him to the vicinity of his home. Ramsey told Fox he wanted to be back at the church by 7:55 P.M. so that no one at the church would realize that he was gone. He also stated to Fox: "I have a deal cooked up but I don't have to tell you what it is."
Ramsey left the taxi cab in the vicinity of Mountain View Church, at a point about 75 yards from his home and he headed in that direction. The evidence is silent as to whether or not he entered his dwelling. Fox proceeded a short distance in order to turn his vehicle around. After a lapse of between two and three minutes Ramsey re-entered the taxi cab about where he left it at approximately 7:45 P.M., arrived at East Lexington Church at about 7:55 P.M. and took a seat in the church where he remained until he was notified around 9:45 P.M. that his dwelling was on fire. Fox stated that it was a cold dark night; that he did not observe any lights in the direction of Ramsey's dwelling; that Ramsey was not indulging in intoxicants; that he did not smell the odor of kerosene or gasoline about him; that he showed no signs of exertion or of excitment, and that Ramsey just wanted to "go and come."
The fire was first seen by neighbors at 9:30 P.M. Flames were coming out from under the eaves, but the walls were standing. Responding to a call, the Buena Vista fire department arrived at the scene about 9:50 P.M. at which time the building was completely destroyed.
Several days after the fire, Ramsey contacted Fox, the cab driver, and requested Fox not to mention to members of his church that he had driven him down to the vicinity of his home on the evening of the fire, for it would put him in a bad light with them.
The size of the dwelling was approximately 18 feet across the front and 24 feet deep. It had a metal roof and a unlined cinder block chimney near the center which fell during the fire. Between 30 and 40 feet from a corner of the house there was a power line pole. On it was a small transformer and a power line connected which led toward the destroyed dwelling house. It was touching the *248 ground short of where the residence formerly stood. There was no authorized electrical service going into the house.
Included among the articles found in the debris were a cast iron cook stove, a cast iron heater, evidence of electrical appliances, a gasoline power saw, several small metal cans and a five gallon can, bits of wire similar to extension cord wire, a small clamp identified as the type used to make electrical connections, and an old model fuse box.
Several witnesses testified in behalf of the accused, but he elected not to take the stand.
In addition to challenging the sufficiency of the evidence to support a conviction, Ramsey contends the lower court erred in permitting the Commonwealth to propound a hypothetical question to Augustus S. Hydrick, Special Agent for National Board of Fire Underwriters.
The hypothetical question follows:
"Assuming that a person is occupying a dwelling as described in the evidence in this case, assuming that there is no direct evidence of exterior wiring into the dwelling and no meter or fuse box connected to wiring from the transformer to the dwelling, assuming further that on Tuesday, February 12, 1957, a 2 1/2 ton truck of the occupant was parked close to the dwelling with the cab of the truck facing the dwelling and on Wednesday February 13, 1957, the truck was turned around and moved so that it was approximately 30 feet away from the dwelling with the cab facing away from the dwelling, assuming further that the occupant had invested less than $600.00 in material in the dwelling when he applied for a $4,000.00 fire insurance policy thereon and represented to the fire insurance agent that he had over $2,000.00 in material invested therein, assuming further that the occupant of the dwelling left it unoccupied on the 13th day of February, 1957, with a small fire in the heater located in the front room being the only fire in the dwelling at or approximately 6:30 P.M., assuming further that the occupant returned by taxi to the dwelling at or approximately 7:45 P.M., assuming further that the occupant made no complaint or report of any unusual fire when leaving the dwelling by the same taxi at or about 7:50 P.M., assuming further there is no evidence of exterior fires adjoining the building, assuming further there was no physical evidence in the debris of any any objects calculated to produce spontaneous combustion, assuming further there was no direct evidence *249 of defective heaters or flues in the dwelling, assuming further that the occupant when returning to the dwelling from church by the same taxi between 7:30 and 8 o'clock P.M. advised the taxi driver if he got back to church before 8 o'clock no one would know he had gone, assuming further that the occupant several days after the fire sought out and told the taxi driver if anyone questioned him about the trip to forget it and deny taking him, assuming further that the dwelling was completely destroyed by fire originating sometime between 9 and 9:30 P.M. on February 13, 1957, based on the assumptions in this hypothetical question and on your knowledge and experience as a Special Agent for the National Board of Fire Underwriters do you have an opinion as to the origin of such a fire, and if so, please state your opinion to the Court and jury?"
Over the objection of accused, Hydrick was permitted to answer the question. After a very lengthy response in which he stated his reasons for the opinion reached, he concluded by saying:
"Considering the accidental causes, which we felt were eliminated as the cause of this fire, coupled with our experience and the unusual circumstances that transpired shortly prior to this fire, several days before, the night of the fire and two or three days after the fire, and when all matters were considered together I reached the conclusion that we had an incendiary fire."
Ramsey argues that the question and answer were improper and constituted prejudicial error because the province of the jury was invaded as to the ultimate facts in issue. He maintains it was for the jury to decide whether or not the fire was of incendiary origin along with who was the guilty agent, and not for an expert witness to determine.
In Southern Railway Co. Mauzy, 98 Va. 692, 694, 37 S.E. 285, the admissibility of opinions of witnesses was discussed. There we said:
"* * * No principle of law is better settled than that the opinions of witnesses are in general inadmissible, that witnesses can testify to facts only, and not to opinions or conclusions based upon the facts. Hanriot Sherwood, 82 Va. 1; Hammond Wood, [Woodman] 41 Me. 177 (66 Amer.Dec. 219). To this general rule there are exceptions. The case at bar, however, does not come within their influence. In the valuable note to the case last cited (66 Amer.Dec. 228), it is said, with abundant authority in its support, that 'the competency of expert testimony in a particular case depends *250 upon the question as to whether or not any peculiar knowledge, science, skill or art, not possessed by ordinary persons, is necessary to the determination of the matter at issue; * * * that expert testimony is not admissible as to matters within the experience or knowledge of persons of ordinary information, as to which the jury are competent to draw their own inferences from the facts given in evidence before them, without extraneous aid other than the instruction of the court upon questions of law."" See also 20 Am. Jur., Evidence, | 781 p. 651."
In 20 Am.Jur., Evidence, | 782, pp. 653, 654, it is stated:
"In many cases it is asserted as a broad general rule, often assumed to be an inflexible rule of law, that while an expert may be permitted to express his opinion, or even his belief, he cannot give his opinion upon the precise or ultimate fact in issue before the jury, which must be determined by them. In other words, while a jury is entitled to the aid of experts in determining the existence or nonexistence of facts not within common knowledge, an expert witness must not take the place of the jury and declare his belief as to an ultimate fact. * * *"
It is said in Wharton's Criminal Evidence, 11th Ed. Vol. 2, | 956, pp. 1680, 1681:
"* * * In an arson case, a witness cannot, as a general rule, testify concerning his opinion as to whether the fire was or was not of incendiary origin, that being a question for the jury to determine, and upon which they can usually form their own opinion without any need of expert advice. However, exceptional cases may arise which would justify the admission of expert opinion testimony on such a question as an aid to the jury in arriving at their determination. * * *"
Another expression of the rule is stated in Curtis, The Law of Arson, Evidence; Opinions, | 422, pp. 441, 442:
"One who observes a fire, even though he is an experienced fireman, will not be permitted to express his opinion as to its cause or origin. Nor should the court admit the opinion of one who makes a subsequent investigation of the fire, although he may qualify as an expert. He should detail the facts coming to his attention and permit the jurors to draw their own conclusions as to the cause. * * *." See People Grutz, 212 N.Y. 72, 105 N.E. 843.
Mitchell Commonwealth, 141 Va. 541, 565, 127 S.E. 368, involves the prosecution of a bank officer for making entries with *251 intent to conceal the true state of his account. There we made the following observation:
"It is assigned as error that the trial court, over the objection of the accused, permitted a witness for the Commonwealth to be asked and to answer the following question: 'Will you state whether or not the effect of such entries made upon the books of the bank would be to conceal the true state of the account of John Mitchell, Jr., in the bank?' To which the witness replied: 'Yes.' The question was a leading one put to a witness not shown to be an expert. But whether expert or not, it called for the opinion of the witness upon what was practically the very issue to be tried by the jury, and not to what was disclosed by the books of the bank. He was asked as to the 'effect' of such entries. This was a question to be determined by the jury from the evidence in the case and not from the opinion of an adverse witness. In Thornton Commonwealth, 113 Va. 736, 73 S.E. 481, the case was reversed solely on the ground that a very similar question was allowed to be asked an expert witness." Redman Hotel Corp., 138 W.Va. 456, 76 S.E.2d 759.
In the recent case of Newton City of Richmond, 198 Va. 869, 875, 96 S.E.2d 775, accused was convicted in the court below for operating his vehicle while under the influence of intoxicants. In reversing and remanding the case for a new trial, Mr. Justice Miller, speaking for the court, said inter alia:
"No specific objection was made to that part of Dr. Kaye's testimony which says that in his opinion the person whose blood he analyzed was intoxicated 'to a degree where he was not fit to operate an automobile.' Yet upon a retrial he should not be allowed to express his opinion upon accused's fitness 'to operate an automobile.' To do so goes beyond giving expert testimony as to degrees of intoxication and invades the province of the jury."
The hypothetical question propounded to Hydrick and his response thereto were highly prejudicial to accused and constituted reversible error. It invaded the province of the jury as to the ultimate issues to be decided. Those issues were (1) whether or not the fire was of incendiary origin, and (2) whether or not Ramsey was the criminal agent. While Hydrick's answer told the jury in his opinion the fire was of incendiary origin, yet the form of the question and the answer to it unquestionably point to Ramsey as the guilty agent. Under the facts in this case the jury was able to form a correct opinion without the aid of expert testimony, and such *252 testimony was not necessary or proper to explain or elucidate the subject under investigation.
For the reasons stated, the judgment of conviction is reversed, the verdict set aside, and a new trial awarded if the Commonwealth be so advised.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338372/ | 98 Ga. App. 130 (1958)
105 S.E.2d 459
SATTERFIELD
v.
FRICKS.
37293.
Court of Appeals of Georgia.
Decided September 15, 1958.
Raymond F. Schuder, Wheeler, Robinson & Thurmond, for plaintiff in error.
H. W. Davis, Jack S. Davidson, contra.
NICHOLS, Judge.
The judgment of the trial court denying the plaintiff's motion to dismiss the defendant's motion for new trial was as follows: "The above motion being presented this the 31st day of May, 1958. The above motion is overruled for the reason that during the progress of the trial the judge giving the charge *131 being myself was attacked with acute [laryngitis] and completely lost my voice and the machine taking the evidence could not pick up the charge. Neither could the jury hear it and due to these facts no brief of evidence could be prepared by movant and represented as required in such cases. It being impossible to present a brief of evidence when no possible record of the charge could be obtained."
The sole question here for decision is whether, under the above circumstances, the movant for a new trial was relieved from preparing a brief of the evidence. If not, of course the motion to dismiss the motion for a new trial should have been sustained, while if the movant is so relieved, then the first grant of a new trial will not be disturbed where the record does not disclose that the verdict was demanded.
"The order attempting to grant the motion for new trial was void because, in the absence of a brief of evidence, there was no motion for new trial in existence. Fireman's Insurance Co. v. Oliver, 176 Ga. 80 (167 S.E. 99); Stowers v. Harris, 194 Ga. 636 (5), (22 S.E.2d 405)." Foster v. Jones, 208 Ga. 320, 322 (66 S.E.2d 743).
In Oliver v. Fireman's Ins. Co., 42 Ga. App. 99 (155 S.E. 227), it was held that a motion which was in effect a motion for new trial but which was not accompanied by a brief of evidence was fatally defective and a ground of demurrer raising this point should have been sustained.
"A brief of evidence is essential to the validity of a motion for a new trial (Code, § 70-301; Herb v. Wolfe, 75 Ga. App. 20 (2), 41 S.E.2d 817; Dobbs v. Sims, 74 Ga. App. 1, 38 S.E.2d 680); and as the statute is imperative, not mentioning any excuse whatever, it contemplates that the movant can and must comply with its terms, irrespective of whether the official reporter has written out his report of the evidence or not (Vinson v. State, 53 Ga. App. 224, 185 S.E. 529); . . ." Smith v. State, 86 Ga. App. 703 (72 S.E.2d 462).
While the trial court may know that a verdict contrary to the verdict of the jury was demanded by the evidence, and that (because of no fault of the movant for a new trial), it is impossible to prepare a "brief of evidence," still, unless there is a brief of *132 the evidence there can be no valid motion for a new trial which is based on the usual general grounds only; and where, as here, there is a motion to dismiss such purported motion for new trial on the ground that there is no brief of the evidence it is error to fail to sustain such motion, and the further judgment granting the new trial is a nullity.
Judgment reversed. Felton, C. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3069012/ | In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-15-00067-CV
_________________
IN RE BOBIE KENNETH TOWNSEND
________________________________________________________________________
Original Proceeding
________________________________________________________________________
MEMORANDUM OPINION
Bobie Kenneth Townsend, Relator, filed a petition for writ of mandamus and
a motion to stay all proceedings in the trial court while his mandamus proceeding
is before the Court. See Tex. R. App. P. 52.10(a). Relator seeks relief from three
orders that were signed by the Judge of the County Court at Law No. 2 of
Montgomery County, Texas, on January 30, 2015, and that he describes as: (1) a
final summary judgment, (2) an order denying Relator’s motion to show authority,
and (3) an order denying Relator’s motion for change of venue. Relator asks this
Court to direct the trial court to transfer the underlying case to an adjoining county.
Relator has not shown that he lacks an adequate remedy by appeal. See generally
1
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). We deny
the petition for writ of mandamus and the motion to stay. See Tex. R. App. P.
52.8(a).
PETITION DENIED.
PER CURIAM
Submitted on February 12, 2015
Opinion Delivered February 13, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/546115/ | 910 F.2d 312
1991 A.M.C. 986
Thomas Lynn SMITH, Plaintiff-Appellant,v.HARBOR TOWING & FLEETING, INC., Defendant,Chotin Transportation Co., Inc., Defendant-Appellee.
No. 89-3762.
United States Court of Appeals,Fifth Circuit.
Sept. 6, 1990.Rehearing and Rehearing En BancDenied Oct. 12, 1990.
A. Remy Fransen, Jr., Wiedemann & Fransen, Chester C. Stetfelt, Jr., New Orleans, La., for plaintiff-appellant.
James F. Shuey, Patrick McShane, New Orleans, La., for Chotin Transp., Inc., Lemele, Kelleher, etc.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before THORNBERRY, GEE, and SMITH, Circuit Judges.
THORNBERRY, Circuit Judge:
1
This appeal raises the sole issue of whether a Jones Act seaman who is injured while performing seaman's work aboard a nonemploying shipowner's vessel can sue the shipowner for unseaworthiness as a Sieracki seaman. We hold that a Jones Act seaman cannot assert a Sieracki unseaworthiness cause of action against a vessel on which he is not a crew member.
Facts and Procedural History
2
At the time of his injury, plaintiff Thomas Lynn Smith (Smith) was a deckhand and crew member aboard the M/V TODD G, a tug owned and operated by his employer, Harbor Towing and Fleeting, Inc. (Harbor Towing). Harbor Towing supplied tugs and fleeting facilities to shift and fleet various barges, including barges owned by Chotin Transportation, Inc. (Chotin).
3
On September 11, 1988, the M/V TODD G was preparing to push two fuel barges owned by Chotin to another fleeting facility. The captain of the M/V TODD G ordered Smith to board the barges and rig them together for towing. Smith claims that in order to rig the barges together, it was necessary to straighten a tangled wire cable attached to a barge winch. While he was trying to untangle the kinked wire, Smith allegedly injured his arm and back when he slipped on some diesel oil on the deck of one of the barges.
4
The two Chotin barges, the CH-2084 and CH-1882, were nonpropelled barges that could be navigated only with the aid of tugs or towboats. Apart from Smith, they were unmanned at the time of the accident and Chotin states that they have never had a crew. Chotin also claims that both barges had been inspected by the Coast Guard and received their biannual Certificates of Inspection on September 9, 1988.
5
Smith sued Harbor Towing under the Jones Act, 46 U.S.C.App. Sec. 688, and the general maritime law, seeking $5.25 million in actual and punitive damages. He also asserted a claim against Chotin for general maritime negligence and for breaching the warranty of seaworthiness. Smith claims that the presence of diesel oil on the deck and the kinked winch wire rendered the Chotin barges unseaworthy. Harbor Towing filed a cross-claim against Chotin seeking indemnity and contribution for any amounts for which it may be liable, claiming that any damages were caused by Chotin's fault, negligence, and by the unseaworthiness of Chotin's barges.
6
The district court concluded as a matter of law that because Smith was not a crew member as to either of Chotin's barges, Smith was owed no duty of seaworthiness. Accordingly, it granted Chotin's motion for partial summary judgment. After the district court entered a final judgment pursuant to Fed.R.Civ.P. 54(b), Smith brought this appeal.
Discussion
7
The parties agree that Smith was a seaman with respect to his employer's tug, the M/V TODD G. There is also no doubt that the Chotin barges are vessels. But due to the transitory nature of his work aboard these barges, Smith concedes that he does not qualify as a Jones Act seaman on Chotin's barges. See Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959) (requiring, among other things, that the maritime worker be permanently assigned to a vessel or perform a substantial part of his work on a vessel). Smith argues, however, that Chotin owed him a duty of seaworthiness on the grounds that he qualifies as a "Sieracki seaman."
8
In Seas Shipping v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), the Supreme Court rejected the notion that the vessel owner's duty to furnish a seaworthy vessel extended only to those maritime workers employed by the vessel owner. Id. at 90-94, 66 S.Ct. at 875-77. The Court extended a cause of action for unseaworthiness to a longshoreman "doing a seaman's work and incurring a seaman's hazards." Id. at 99, 66 S.Ct. at 880. Subsequently, the Court recognized that an implied warranty of workmanlike performance ran from the stevedore by contract to the shipowner. Thus, the shipowner was entitled to full indemnity if the plaintiff's employer breached this implied warranty. See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 133, 76 S.Ct. 232, 237, 100 L.Ed. 133 (1956). The result of these holdings was to expose a stevedore to liability even though section 905 of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) expressly limited the employer's liability to worker's compensation. See 33 U.S.C. Sec. 905(a).
9
In 1972 Congress amended the LHWCA to add section 905(b), which provides that any "person covered" under the Act may no longer bring an action against a third-party vessel owner "based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred." 33 U.S.C. Sec. 905(b). Thus, Congress abolished the Sieracki unseaworthiness cause of action and the Ryan indemnity action for those employees covered by the LHWCA. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260, 99 S.Ct. 2753, 2757, 61 L.Ed.2d 521 (1979).
10
Following the 1972 amendments, courts were faced with the question of whether Sieracki still survived with respect to those maritime workers not covered by the LHWCA. Some courts have reached the conclusion that the 1972 amendments completely abolished the Sieracki seaworthiness action.1 In Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir. Unit A Apr.1981), however, this court reached a less sweeping conclusion. Aparicio, a harbor worker employed by the Panama Canal Company, was injured while handling the lines of a vessel in the Canal Zone. As a federal employee working in the Canal Zone and covered by the Federal Employees' Compensation Act (FECA), 5 U.S.C. Secs. 8101-93, Aparicio was not covered by the LHWCA. In Aparicio, we concluded that maritime workers covered by FECA, but who were not covered by the LHWCA, were not barred by the 1972 amendments from asserting claims as a Sieracki seaman. Id. at 1116-18. Because Aparicio was a longshoreman engaged in the classic seaman's work of handling the lines of a vessel, we held that he was entitled to an action for unseaworthiness under Sieracki. Id. at 1114 & n. 7. Two years later, in Cormier v. Oceanic Contractors, Inc., 696 F.2d 1112, 1113 (5th Cir.1983), cert. denied, 464 U.S. 821, 104 S.Ct. 85, 78 L.Ed.2d 94 (1983), this court applied Aparicio and held that a welder working aboard a vessel in a foreign country, and thus beyond the reach of the LHWCA, was entitled to Sieracki seaman status.
11
Smith would have this court extend the holdings of Aparicio and Cormier to Jones Act seamen. It is true that as "a member of the crew of any vessel," Smith is excluded from LHWCA coverage. 33 U.S.C. Sec. 902(3)(G). Thus, as a "maritime worker[ ] not covered by the LHWCA," Smith would arguably be entitled to a Sieracki remedy. Aparicio, 643 F.2d at 1118. This court, however, has refused to extend the special protections of Sieracki seaman status to Jones Act seamen injured on vessels on which they are not crew members. In Bridges v. Penrod Drilling Co., 740 F.2d 361 (5th Cir.1984), plaintiff Bridges was a seaman by virtue of his assignment as a roustabout aboard his employer's drilling barge, the PENROD 72. He was ordered to board and unload a third-party supply vessel, the THOMAS DRAYTON, and was injured when a runaway drum on the deck crushed him. Bridges asserted an unseaworthiness cause of action against the owner of the supply vessel. The court rejected his claim and held that a seaman injured while performing the duties of a longshoreman, in a setting not subject to the LHWCA, was not a Sieracki seaman. Id. at 364.
12
The court explained that unlike the plaintiffs in Aparicio and Cormier, who were not Jones Act seamen, there was no need for Bridges to leave his regular seaman status and join the pockets of Sieracki seamen:
13
As a member of the crew of the special purpose vessel PENROD 72, Bridges was possessed of the full range of traditional seaman's rights and remedies: maintenance and cure and a Jones Act negligence claim against his employer as employer, an unseaworthiness, strict liability claim against his employer as vessel owner for any injury on the PENROD 72, and a negligence claim in maritime tort for Offshore's breach of duty of reasonable care under the circumstances. In order to achieve adequate protection it was not necessary that Bridges be characterized as a remnant Sieracki seaman of the THOMAS DRAYTON. It cannot be said that Bridges was either "covered by no compensation act or by a compensation scheme that is far more stringent in its benefits than is the LHWCA." Aparicio, 643 F.2d at 1118 n. 17.... One with seaman status does not become additionally a Sieracki seaman by doing stevedoring work which might be styled traditional seaman's duties.
14
Id.; see also Book v. Nordrill, Inc., 826 F.2d 1457, 1463 (5th Cir.1987) (holding that roustabout could not assert an unseaworthiness action against owner of vessel because he was not assigned to the vessel or a member of its crew).
15
We believe that Bridges controls this case. Like the plaintiff in Bridges, Smith has a variety of possible remedies as a Jones Act seaman: maintenance and cure and a Jones Act negligence claim against his employer as employer, an unseaworthiness claim against his employer as vessel owner for any injury on the M/V TODD G, and a negligence claim in maritime tort for Chotin's breach of duty of reasonable care under the circumstances. Bridges, 740 F.2d at 364. Thus, there is no need for him to join the pocket of Sieracki seamen.
Conclusion
16
In summary, we hold that a Jones Act seaman, who possesses the full range of traditional seamen's rights and remedies, cannot maintain a Sieracki seaworthiness action against a vessel on which he is not a crew member. In reaching this conclusion, we are not unmindful of the fact that longshoremen performing a seaman's task on a nonemployer's vessel are entitled to an unseaworthiness remedy while seamen performing the same task are not. Although this court may wish to reexamine this issue en banc, until then the holding in Bridges controls this case. Thus, we hold that Smith may not assert a Sieracki unseaworthiness claim against Chotin, and the judgment of the district court is hereby
17
AFFIRMED.
1
See, e.g., Normile v. Maritime Co. of the Philippines, 643 F.2d 1380, 1382 (9th Cir.1981); United States Lines, Inc. v. United States, 593 F.2d 570, 572 (4th Cir.1979); Grice v. A/S J. Ludwig Mowinckels, 477 F.Supp. 365, 371 (S.D.Ala.1979) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2218294/ | 178 Mich. App. 451 (1989)
444 N.W.2d 199
WALKER
v.
CONSOLIDATED RAIL CORPORATION
Docket No. 103848.
Michigan Court of Appeals.
Decided July 17, 1989.
Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. (by Angela J. Nicita), for plaintiff.
*453 Squire, Sanders & Dempsey (by Ronald J. James and Mark S. Floyd), Durkin, McDonnell & Clifton (by T. Patrick Durkin), and Cary A. Metz, of Counsel, for defendants.
Before: BEASLEY, P.J., and GILLIS and BRENNAN, JJ.
BRENNAN, J.
In this case, plaintiff, who is black, sued defendants alleging that they discriminated against her on the basis of race in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We hold that plaintiff's claim is not preempted by the Railway Labor Act, 45 USC 151 et seq. The trial court's order for summary disposition in favor of defendants is vacated.
Plaintiff began her employment with Consolidated Rail Corporation in 1976 as a stenographer. Her employment was subject to the collective bargaining agreement in effect between her union and Conrail.
In September, 1983, plaintiff exercised her seniority rights under the collective bargaining agreement and bid into a steno-clerk position in the area engineer's office under the supervision of Kenneth Parish. Under the collective bargaining agreement, plaintiff had thirty days to qualify for her new position. Approximately one month later, plaintiff was disqualified from the position because of her alleged inability to handle the secretarial duties in the office.
In accordance with the terms of the collective bargaining agreement, plaintiff filed a grievance concerning her disqualification. In August, 1986, the public law board assigned to hear the grievance ruled that plaintiff had been disqualified from the steno-clerk position in violation of the collective bargaining agreement. The board found that *454 plaintiff was not properly trained, was misled as to the duties to be performed and was pressured by the employee whom plaintiff "bumped." The board awarded plaintiff full back pay and ordered Conrail to reinstate her.
Plaintiff began this action in February, 1985, while her grievance was pending. Plaintiff alleged in her complaint that defendants discriminated against her on the basis of race by improperly training her, misleading her as to the duties she had to perform, harassing her, disqualifying her from the steno-clerk position despite the fact that she was qualified for the job, and refusing to disqualify a white co-worker who performed her duties more slowly and poorly.
In September, 1987, the trial court granted defendants' motion for summary disposition under MCR 2.116(C)(4). The trial court ruled that plaintiff's discrimination claim and her grievance were related and, therefore, the discrimination claim was preempted by the Railway Labor Act.
On appeal, plaintiff argues that her discrimination claim is not preempted by the Railway Labor Act. Plaintiff contends that the discrimination claim is distinguishable from her grievance and does not depend upon an interpretation of the collective bargaining agreement for its resolution. Defendants, on the other hand, argue that any claim based upon a collective bargaining agreement is a "minor dispute" within the exclusive jurisdiction of the Railway Labor Act. Defendants argue that plaintiff's grievance claim and her discrimination claim are identical and, therefore, the discrimination claim is preempted by the act.
Section 3 of the Railway Labor Act provides for the resolution of disputes between railroad carriers and their employees arising out of "grievances or out of the interpretation or application of agreements *455 concerning rates of pay, rules, or working conditions." 45 USC 153 First (i). Disputes that involve the interpretation of collective bargaining agreements are characterized as "minor" for which the administrative procedures and remedies afforded by the Railway Labor Act are exclusive. McCall v Chesapeake & Ohio R Co, 844 F2d 294, 300 (CA 6, 1988), cert den ___ US ___; 109 S Ct 196; 102 L Ed 2d 166 (1988).
In Michigan Canners & Freezers Ass'n, Inc v Agricultural Marketing & Bargaining Bd, 467 US 461, 469; 104 S Ct 2518; 81 L Ed 2d 399 (1984), the United States Supreme Court identified three ways by which federal law may preempt state law:
First, in enacting the federal law, Congress may explicitly define the extent to which it intends to pre-empt state law. E.g., Shaw v Delta Air Lines, Inc, [463 US 85, 95-96; 103 S Ct 2890, 2898-2899; 77 L Ed 2d 490 (1983).] Second, even in the absence of express pre-emptive language, Congress may indicate an intent to occupy an entire field of regulation, in which case the States must leave all regulatory activity in that area to the Federal Government. E.g., Fidelity Federal Savings & Loan Assn v De la Cuesta, [458 US 141, 153; 102 S Ct 3014, 3022; 73 L Ed 2d 664 (1982)]; Rice v Santa Fe Elevator Corp, [331 US 218, 230; 67 S Ct 1146, 1152; 91 L Ed 1447 (1947)]. Finally, if Congress has not displaced state regulation entirely, it may nonetheless pre-empt state law to the extent that the state law actually conflicts with federal law. Such a conflict arises when compliance with both state and federal law is impossible, Florida Lime & Avocado Growers, Inc v Paul, [373 US 132, 142-143; 83 S Ct 1210, 1217; 10 L Ed 2d 248 (1963)], or when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
In Colorado Anti-Discrimination Comm v Continental *456 Air Lines, Inc, 372 US 714; 83 S Ct 1022; 10 L Ed 2d 84 (1963), the United States Supreme Court held that a Colorado statute prohibiting racial discrimination was not preempted by the Railway Labor Act. The Court stated that the Railway Labor Act does not explicitly or implicitly preempt racial discrimination claims based upon state law. Id. at 1027.
Furthermore, the Civil Rights Act does not conflict with the Railway Labor Act. Resolution of plaintiff's racial discrimination claim does not depend upon the interpretation of the collective bargaining agreement. See McCall, supra.
To establish her claim of racial discrimination under the Civil Rights Act as pled in her complaint, plaintiff must prove either that she was a member of a class entitled to protection under the act and that, for the same or similar conduct, she was treated differently than one who was a member of a different race, or that she was a member of a protected class, that she was disqualified, and that defendants were predisposed to discriminate against persons in her class and had actually acted on that disposition in disqualifying her. Marsh v Dep't of Civil Service (After Remand), 173 Mich App 72, 79; 433 NW2d 820 (1988). Once proven, the burden shifts to defendants to articulate some nondiscriminatory reasons for the disqualification. If defendants are able to meet this burden, plaintiff must have the chance to prove that the reasons offered by defendants were a pretext for discrimination. Sisson v University of Michigan Bd of Regents, 174 Mich App 742, 746; 436 NW2d 747 (1989).
The focus of inquiry under either theory is upon the motivation behind plaintiff's disqualification, not whether plaintiff was disqualified in accordance *457 with the terms of the collective bargaining agreement. Neither theory requires an interpretation of the collective bargaining agreement. Plaintiff's racial discrimination claim is independent of the collective bargaining agreement and is not preempted by the Railway Labor Act. The fact that plaintiff's racial discrimination claim may relate to the collective bargaining agreement does not mandate preemption. Lingle v Norge Div of Magic Chef, Inc, 486 US ___; 108 S Ct 1877; 100 L Ed 2d 410 (1988); Allis-Chalmers Corp v Lueck, 471 US 202; 105 S Ct 1904; 85 L Ed 2d 206 (1985).
Vacated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263667/ | 24 Cal.App.4th 1128 (1994)
30 Cal. Rptr.2d 1
In re CANDACE P. et al., Persons Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
v.
SANDRA C., Defendant and Appellant.
Docket No. D020153.
Court of Appeals of California, Fourth District, Division One.
May 3, 1994.
*1129 COUNSEL
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, and Kathryn E. Krug, Deputy County Counsel, for Plaintiff and Respondent.
Kandy Koliwer, under appointment by the Court of Appeal, for Minors.
[Opinion certified for partial publication.[1]]
*1130 OPINION
FROEHLICH, J.
Sandra C. (Mother) appeals from the juvenile court's findings and orders made at a Welfare and Institutions Code[2] section 366.26 hearing terminating her parental rights as to three of her children. The principal issue raised on appeal is that the termination order must be reversed because the court's referral to the section 366.26 hearing, achieved at a hearing held in accordance with section 366.22, was void for failure to follow the directions of this appellate court contained in a mandate order.[3]
I
Our previous order[4] was a reaction to a petition for writ of mandate brought by Mother from a section 366.21 order terminating reunification *1131 services and referring the case to a section 366.26 "selection and implementation" hearing. The effect of this trial court order was to terminate reunification efforts after only 12 months of the program. Our unpublished decision, rendered December 9, 1992, found that Mother had made progress in her parenting education, that the social service report had recommended an additional six months of the reunification program, and that "[j]ust when [M]other may have gotten her life together and was ready to participate fully in reunification the court terminated services." Our order was that the superior court vacate its order terminating reunification services and that it "enter a new and different order continuing appropriate services, including whatever assistance is needed in utilizing those services [and] [t]he time for the next six-month hearing runs from the date of filing of this opinion."
(1) The next status review hearing was held by the superior court on May 3, 1993, approximately five months after our writ opinion was issued. Mother contends the holding of this hearing was not in conformity with this court's order, which envisioned a full six months of added reunification program. Mother directs our attention to the established law which requires a trial court on remand to follow the directions of the appellate court, and provides that any material variance in the trial court's action from the appellate court's direction is unauthorized and void. (See Hampton v. Superior Court (1952) 38 Cal.2d 652, 655 [242 P.2d 1]; Coffee-Rich, Inc. v. Fielder (1975) 48 Cal. App.3d 990, 998 [122 Cal. Rptr. 302].)
The county counsel points to the lack of effective reunification efforts by Mother during the five months of added program,[5] suggesting therefrom that even if the court erred in holding an early hearing, such error could not have been prejudicial. If Mother failed to make any progress in five months, it is argued, it may be assumed that an added month of effort would not have achieved beneficial results. We do not view, however, the consideration of the effect of a "void" procedure as one permitting harmless error analysis. Particularly in the juvenile dependency sphere of litigation, we believe both parent and child are entitled to the full measure of statutory procedure, in all aspects of the program. If a parent is deprived of an adequate reunification program it is no defense, we believe, to show that the parent was so irresponsible that the program would not have had a chance of success, even had it been adequate.
The correct analysis, we believe, is the determination whether an apparent variance in the trial court's execution of the appellate ruling is "material." *1132 (See Coffee-Rich, Inc. v. Fielder, supra, 48 Cal. App.3d 990, 998; Bach v. County of Butte (1989) 215 Cal. App.3d 294, 301-302 [263 Cal. Rptr. 565]; Frankel v. Four Star International, Inc. (1980) 104 Cal. App.3d 897, 902 [163 Cal. Rptr. 902].) We believe that the juvenile court's action following this court's order did not constitute a material variance from the terms thereof. In analyzing exactly what was intended by the appellate court's order it is necessary that the order "be read in conjunction with the appellate opinion as a whole" (Bach v. County of Butte, supra, 215 Cal. App.3d at p. 302) and, in this case, that the order be considered in the framework of the statutory scheme to which it relates.
The current program for administration of dependency cases requires recurrent reviews of the status of parent and child. These reviews, commencing after the court has taken jurisdiction of the child and made its initial disposition (see §§ 300, 358), are referred to as "six-month," "twelve-month," and "eighteen-month" reviews, and hence are to be afforded roughly every six months in the process until the final selection of the child's permanent disposition.
The important point overlooked by Mother in her appeal is that these review hearings invariably are provided for periods of not more than six months. Section 366 states that the status of every child in foster care "shall be reviewed periodically as determined by the court but no less frequently than once every six months, ..." Section 366.21, dealing generally with "status review hearings," refers somewhat ambiguously to "the review hearing held six months after the initial dispositional hearing" (§ 366.21, subd. (e)), "the review hearing held 12 months after the initial dispositional hearing" (§ 366.21, subd. (f)), and "another review hearing ... [which] shall occur within 18 months of the date the child was originally taken from ... physical custody." (§ 366.21, subd. (g)(1)). Similarly, section 366.22 refers generically to "the 18-month hearing" without limiting such hearing to exactly 18 months, or precluding it from being held either before or after the magic 18-month date.
Rule 1462, California Rules of Court, dealing specifically with the 18-month hearing, states that if the child is not returned at the 12-month hearing a permanency planning hearing shall be held "no later than 18 months from the date of the original detention order." (Rule 1462(a)(1).)
The reference to recurrent "six-month" hearings surely illustrates an intention to give parents, during each period prior to recurrent review, a period of time to learn, adjust and amend their ways, which will approach six months. It would be error, we have no doubt, for a trial court to order a *1133 review hearing after a period substantially shorter than six months. The wording of the various statutes prescribing recurrent review is significant, however, in setting the 6-month, 12-month and 18-month periods as outer limits of time within which the review hearing may be held. That a six-month review hearing may be held at a time less than six months from the prior hearing seems clear.
It happens that this panel of this court is the same one that issued the prior order in this case. We nevertheless decline the potential invitation of stating definitively what we meant by our order. The order must be interpreted in terms of its literal or objective meaning the manner in which it reasonably should be construed by a trial court judge. Such judge, we assume, will know the statutory framework of the six-month review provisions. Knowing such, he will realize that when we ordered an additional six-month period of reunification we intended no more than to require an additional periodic review approximately six months hence, and an equal period of attempted reunification. The setting of the next review hearing approximately five months, rather than a full six months, from the date of our order, did not violate this precept.
The trial court's judgment is therefore affirmed, with the exception of the judgment as to Walter P., concerning which a special disposition is made in the unpublished portion of this opinion.
II-IV[*]
.... .... .... .... .... .... .... .
Todd, Acting P.J., and Benke, J., concurred.
NOTES
[1] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II, III and IV.
[2] All statutory references are to the Welfare and Institutions Code unless otherwise specified.
[3] In accordance with established precedent from the Courts of Appeal (see, e.g., In re Amanda B. (1992) 3 Cal. App.4th 935 [4 Cal. Rptr.2d 922]; In re Taya C. (1991) 2 Cal. App.4th 1 [2 Cal. Rptr.2d 810]; In re Rebecca H. (1991) 227 Cal. App.3d 825 [278 Cal. Rptr. 185]) we would have dismissed this portion of the appeal as violative of the requirement of section 366.26, subdivision (k) that review of orders terminating reunification and referring for a section 366.26 hearing may be achieved only by writ review. The majority of the Supreme Court, however, in In re Matthew C. (1993) 6 Cal.4th 386 [24 Cal. Rptr.2d 765, 862 P.2d 765], ruled that failure to seek writ review after a section 366.21 or 366.22 order does not preclude later appeal following the judgment rendered after the section 366.26 hearing. The detrimental effect of this ruling, as pointed out by the dissenters in Matthew C. (supra, at pp. 401 & 405) is to promote delays in the eventual disposition of dependent children. This case is a good example of the problem. The hearing which produced the order now attacked as "void" was held on May 3, 1993. Had a writ petition been taken from that order it would have been filed promptly thereafter, presumably within a month or so, and we would have ruled on it with dispatch. Had we found error we would have issued our written opinion within probably 150 days, meaning that this issue would have been resolved by November of 1993. The use of ordinary appellate process following the section 366.26 hearing has resulted, even under our efficient "fast track" juvenile program, in our issuing the opinion in May of 1994, a good six months after the writ opinion would have been forthcoming. Of course, since we deny relief, it can be argued that no prejudice occurred, since this was but one issue in the appeal. This ignores the fact that this is the only issue of substance in the appeal, meaning that the appeal itself probably would not have been sought otherwise. Aside from this point, however, it is noted that had we granted relief on this issue in this appeal, the ultimate disposition of the children would have been delayed an additional six months. While six months may not be an impressive period to aged judges, it is an eternity to very young children. The avoidance of this sort of delay was a principal objective sought by the Legislature when it adopted the recent amendments to the juvenile dependency sections, including the provision for prompt writ review contained in section 366.26, subdivision (k). It is unfortunate the Legislature did not have the foresight to include in its legislation the precise language our Supreme Court now finds necessary to illustrate its otherwise clearly stated objective.
[4] Sandra C. v. Superior Court (Dec. 9, 1992) D017716 (nonpub. opn.).
[5] We do not detail the history of Mother's failed reunification program because the facts thereof are not necessary to a resolution of this published portion of our opinion. The record reveals, however, that in the added five months of reunification effort Mother continued her desultory, ineffective and irresponsible conduct supposedly directed at reunification. She missed appointments with social workers and psychologists; she did not attend court hearings; she failed on many occasions to attend scheduled visits with her children.
[*] See footnote 1, ante, page 1128. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263688/ | 24 Cal.App.4th 1578 (1994)
30 Cal. Rptr.2d 88
MARY JANE HADLAND et al., Plaintiffs and Respondents,
v.
NN INVESTORS LIFE INSURANCE COMPANY, INC., et al., Defendants and Appellants.
Docket No. G012705.
Court of Appeals of California, Fourth District, Division Three.
April 13, 1994.
*1580 COUNSEL
Adams, Duque & Hazeltine, Alan S. Breckenridge and Margaret Levy for Defendants and Appellants.
Farnell & Brown and Margaret Kathryn Maas for Plaintiffs and Respondents.
OPINION
SONENSHINE, J.
NN Investors Life Insurance Company, Inc. (NN), National Association for the Self-Employed (NASE), Kevin E. Winn, Winn & Associates, Bob Winn, United Group Association, Inc., and Aegon USA, Inc. (referred to collectively as defendants, except where individual identification is necessary), appeal from an adverse judgment following jury trial of an action brought by Mary Jane Hadland and Fred Hadland to recover damages arising from an insurance dispute. Defendants contend a multitude of errors committed by the trial court mandate reversal. The Hadlands have filed a protective cross-appeal.
*1581 Factual and Procedural Background
In the fall of 1985, the Hadlands were notified of a 10 percent increase in the premiums for their health insurance under a policy with Reliance Standard Life Insurance Company. The Reliance major medical policy paid 80 percent of medical and hospital expenses, subject to a $250 deductible. The Hadlands began to look for less expensive coverage. When they received a mailing from NASE describing low-cost group hospital insurance available to NASE members through NN, they sent in a postcard asking for further information. Kevin Winn, associated with NASE, NN and United Group Association (UGA) (a company that markets NN insurance), contacted the Hadlands and, on December 5, came to their place of business to make a sales presentation. According to the Hadlands, Winn told them coverage under the NN policy was "as good if not better" than coverage under the Reliance policy, at half the premium cost. Promotional materials described the policy as offering major hospital benefits. The Hadlands joined NASE and applied for NN coverage. As it turned out, the NN policy was, as Winn had stated, half as expensive as the Reliance policy, but it did not cover most outpatient medical expenses. Moreover, NN's benefits were paid according to a maximum benefit schedule which, in some cases, covered less than 50 percent of the actual charge for a surgical procedure. For instance, the maximum surgical benefit available under the policy was $6,000, regardless of the actual cost, and the maximum hospital room and board benefit for nonintensive care was $300 a day.
In January 1986, the Hadlands received a certificate of insurance indicating their coverage benefits under the NASE group policy. In an attached letter, they were asked to read the certificate and call the NN office if they had any questions. The first page of the certificate advised them that if the policy did not meet their needs, they could return it within 10 days for a full refund.[1] NN sent the Hadlands a second letter to confirm their receipt of the certificate and to ask them to contact the insurer if they had any questions concerning coverage. The Hadlands did not read the insurance contract. In November, Mary Jane Hadland was hospitalized for a surgical procedure. She incurred nearly $26,000 in medical and hospital bills. NN paid less than one-half, which, the Hadlands concede, was the total of benefits due under the policy.
In September 1987, the Hadlands filed suit to recover additional benefits. Their first amended complaint, seeking compensatory, general and punitive *1582 damages and injunctive relief, alleged eight causes of action, of which only two are relevant here: fraud and breach of statutory duties under Insurance Code section 790.03, subdivision (h),[2] which defines unfair settlement practices.
The case went to trial on March 11, 1992. At the court's suggestion, the Hadlands filed a second amended complaint, alleging a new cause of action for unfair insurance practices, under subdivisions (a) and (b) of section 790.03. As relevant here, those subdivisions deal with publications which mislead or deceive the public about the true nature of the insurance company or its policies. In pursuit of that cause of action, and over defendants' objections, the Hadlands were permitted to present evidence including deposition testimony from a Nevada lawsuit of third parties holding a variety of grudges against NN.
At the conclusion of the Hadlands' case-in-chief, the court granted defendants' motion for nonsuit as to all causes of action except the newly asserted claim under section 790.03, subdivisions (a) and (b). The jury returned a verdict in favor of the Hadlands and against all defendants, awarding damages in excess of $600,000. The judgment cannot stand.
Discussion
I
(1a) Defendants' first contention is the court erred in permitting the Hadlands to amend their complaint at the beginning of the trial to state causes of action for breach of statutory duties set forth in section 790.03, subdivisions (a) and (b). We agree.
In 1987, when the Hadlands filed their complaint, the law under Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880 [153 Cal. Rptr. 842, 592 P.2d 329] allowed private causes of action for an insurer's unfair settlement practices, as defined in voluminous detail in section 790.03, subdivision (h). In their original complaint, the Hadlands stated a cause of action alleging unlawful conduct described in six of subdivision (h)'s subparagraphs.[3] But a year after they filed their complaint, the Supreme Court overruled Royal Globe. In Moradi-Shalal v. Fireman's Fund Ins. Companies *1583 (1988) 46 Cal.3d 287 [250 Cal. Rptr. 116, 758 P.2d 58], it decided "section 790.03 ... was [not] intended to create a private civil cause of action against an insurer that commits one of the various [prohibited] acts." (Id., at p. 304.)[4] (2) Moradi-Shalal dealt with subdivision (h) of the statute, but it implicitly abolished all private causes of action for insurer violations of the Unfair Insurance Practices Act. (Zephyr Park v. Superior Court (1989) 213 Cal. App.3d 833, 837-838 [262 Cal. Rptr. 106].)
In overruling Royal Globe, the Moradi-Shalal court, "[w]ithout implying any broad exception to the general rule of retrospectivity [of decisional law]," determined its decision should apply prospectively only. (Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal.3d 287, 305.) "[I]n the interest of fairness to the substantial number of plaintiffs who have already initiated their suits in reliance on Royal Globe, we hold that our decision overruling that case will not apply to those cases seeking relief under section 790.03 filed before our decision here becomes final." (Ibid.)
(1b) The Hadlands do not contend they sought to amend their complaint to allege additional causes of action under the statute before Moradi-Shalal became final. Rather, they argue that because their original complaint alleged a cause of action under section 790.03, subdivision (h), they were already involved in Royal Globe litigation, and the Moradi-Shalal decision allows them to maintain their late-asserted additional breach-of-duty claims under different subdivisions of the same statute. They are mistaken.
In the first place, with regard to their claims under subdivisions (a) and (b) of section 790.03, they could not have "initiated their suit[] in reliance on Royal Globe." (Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal.3d 287, 305.) The only claim they stated in reliance on Royal Globe was for unfair settlement practices under subdivision (h). In the second place, the fairness consideration underlying Moradi-Shalal's narrow exception to the rule of retrospectivity would be ill-served by allowing plaintiffs to use it as a loophole for asserting new theories of statutory liability several years after finality of the decision. Indeed, it was fairness that prompted the Moradi-Shalal court to provide a last-gasp window of opportunity for plaintiffs to allege statutory claims in the interim between the filing of the decision and *1584 its finality. (See, e.g., Marenger v. Hartford Accident & Indemnity Co. (1990) 219 Cal. App.3d 625 [268 Cal. Rptr. 290]; Cooper v. Equity Gen. Insurance (1990) 219 Cal. App.3d 1252, 1257, fn. 1 [268 Cal. Rptr. 692]: "[C]laims such as this one, filed in reliance on Royal Globe and before Moradi-Shalal ... are still viable." [Italics added.]) The Hadlands were on notice, in 1988, that the Royal Globe era was drawing to an end. There would be nothing fair about extending their window of opportunity to 1993.
The Hadlands are in the same situation as was the plaintiff in Smith v. State Farm Mut. Auto. Ins. Co. (1992) 5 Cal. App.4th 1104 [7 Cal. Rptr.2d 131], who filed a pre-Moradi-Shalal complaint stating a third party cause of action under section 790.03, subdivision (h), and then, after finality of Moradi-Shalal, attempted to allege, for the first time, another cause of action under the statute, by assignment from the insured. The reviewing court affirmed the trial court's order sustaining defendants' demurrers to both causes of action, the latter on the basis that the new cause of action was asserted "well after the Moradi-Shalal decision." (5 Cal. App.4th at p. 1116.)[5]
The Hadlands' causes of action under section 790.03, subdivisions (a) and (b) were not filed before Moradi-Shalal became final, nor were they filed in reliance on Royal Globe. Both the letter and the spirit of Moradi-Shalal bar the Hadlands from maintaining causes of action asserted for the first time more than four years after the decision became final. Nevertheless, the Hadlands contend the amendments were proper. They argue their original causes of action for breach of the covenant of good faith and fair dealing, fraudulent and negligent misrepresentation and unlawful business practices alleged the same kinds of fraudulent and misleading advertising activities that are proscribed in subdivisions (a) and (b) of the statute, thus the amendments simply changed the theory of recovery. They point to the liberal rule governing amendments, implicitly arguing appellants did not suffer undue prejudice by virtue of the Hadlands' belated assertion of the statutory claims.
But the issue is not whether appellants suffered prejudice from the lapse of time; it is whether the Hadlands are legally barred from asserting the statutory claims. And it is no answer for the Hadlands to say they pleaded the equivalent of claims under section 790.03, subdivisions (a) and (b), albeit those claims bore a common law label. There is a difference, as the Moradi-Shalal court noted when it pointed out that plaintiffs retain available remedies against insurers, even without the right to maintain section 790.03 *1585 causes of action. "[A]part from administrative remedies, the courts retain jurisdiction to impose civil damages or other remedies against insurers in appropriate common law actions, based on such traditional theories as fraud, infliction of emotional distress, and (as to the insured) either breach of contract or breach of the implied covenant of good faith and fair dealing. Punitive damages may be available in actions not arising from contract, where fraud, oppression or malice is proved. [Citation.] In addition, prejudgment interest may be awarded where an insurer has attempted to avoid a prompt, fair settlement. [Citation.]" (Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal.3d 287, 304-305.) Clearly, allegations stating a common law cause of action will not suffice as a basis for legitimizing statutory claims otherwise barred by Moradi-Shalal.
The same reasoning defeats the Hadlands' circular argument they simply amended their complaint according to proof of defendants' violation of their statutory duties. Such proof is irrelevant in a private civil suit for damages if, as here, the plaintiff is barred from maintaining a claim under the statute.[6]
Our disposition makes it unnecessary for us to decide the merits of appellants' contention, raised for the first time on appeal, that no private right of action ever existed under section 790.03, subdivisions (a) and (b). Even assuming, arguendo, that Royal Globe causes of action could have been stated under those subdivisions before Moradi-Shalal, they could not be newly asserted after the decision became final. The trial court erred in permitting the Hadlands to amend their complaint to state causes of action for breach of statutory duties under the Unfair Insurance Practices Act.
II
The trial court granted defendants' motions for nonsuit as to all causes of action except the one under section 790.03, subdivisions (a) and (b). Because we have decided the Hadlands are barred from asserting the only cause of action on which they recovered, defendants are entitled to judgment in their favor unless the Hadlands' protective cross-appeal has merit. It does not.
*1586 (3a) The Hadlands contend the court erred in granting a nonsuit on their fraud cause of action.[7] They argue the court's erroneous application of the parol evidence rule resulted in the exclusion of admissible evidence which would have sustained their burden of proving a prima facie case to take to the jury. We do not reach the parol evidence issue because we agree with the trial court that the Hadlands failed to establish the requisite fraud element of justifiable reliance, thus any error regarding parol evidence was harmless.
To take their fraud cause of action to the jury, the Hadlands had to prove not only defendants' false representations, but their own justifiable reliance. (5 Witkin, Summary of Cal. Law (9th ed. 1988) § 676, p. 778.) And although the issue of justifiable reliance ordinarily presents a question of fact (Blankenheim v. E.F. Hutton & Co. (1990) 217 Cal. App.3d 1463, 1475 [266 Cal. Rptr. 593]), there are cases in which it may be decided as a matter of law. (Hackethal v. National Casualty Co. (1987) 189 Cal. App.3d 1102, 1111 [234 Cal. Rptr. 853].) This is such a case.
The Hadlands admit they did not read the insurance contract.[8] The trial court, noting that admission, stated: "But then there's the whole issue of justifiable reliance and the duty to read.... [¶] But on the issue of justifiable reliance, there's no evidence of justifiable reliance because the plaintiff has to prove justifiable reliance, and the plaintiff is up against the case law duty to read. And so there's no evidence of justifiable reliance based upon that." The case law to which the court referred sets forth "`a general rule that the receipt of a policy and its acceptance by the insured without an objection binds the insured as well as the insurer and he [or she] cannot thereafter complain that he [or she] did not read it or know its terms. It is a duty of the insured to read his [or her] policy.' [Citation.]" (Aetna Casualty & Surety Co. v. Richmond (1977) 76 Cal. App.3d 645, 652 [143 Cal. Rptr. 75].) As Division One of this district has recently reiterated: "`A reasonable person will read the coverage provisions of an insurance policy to ascertain the scope of what is covered. [Citation.]' ... Generally the insured is `bound by clear and conspicuous provisions in the policy even if evidence suggests that the insured did not read or understand them.' [Citation.]" (Malcom v. Farmers New World Life Ins. Co. (1992) 4 Cal. App.4th 296, 304, fn. 6 [5 Cal. Rptr.2d 584].)
The general rule was applied in Hackethal v. National Casualty Co., supra, 189 Cal. App.3d 1102, where the insurer marketed and sold to the plaintiff *1587 physician a policy called "Defendants Reimbursement Policy." The broker's promotional brochure made certain representations regarding benefits to the physician for days spent in court as a defendant in a professional negligence action. (Id. at p. 1106.) The front of the brochure proclaimed: "`Protect yourself from loss of income with a DEFENDANTS REIMBURSEMENT POLICY up to $5,000.00 PER TRIAL only $30.00 a YEAR.'" (Ibid.) A prominent caveat warned: "`This brochure briefly outlines the insurance plan. Complete details and provisions of the insurance are contained in the policy.'" (Ibid.) The broker told Hackethal the policy would cover him if he had to be out of the office for "any suit filed against him, even on matters other than malpractice." (Id. at pp. 1107.) The specific topic of disciplinary administrative hearings never came up.
The Attorney General filed an accusation against Hackethal, charging him with gross negligence, incompetence and criminal acts and seeking revocation of his license to practice medicine. (Hackethal v. National Casualty Co., supra, 189 Cal. App.3d 1102, 1108.) The administrative hearing lasted 39 days. When Hackethal's insurer denied his claim for benefits, Hackethal sued. The court denied defendants' motion for directed verdicts on the fraud cause of action.
Reversing, the appellate court noted the required elements of a tort action for deceit and held that if the physician relied on the broker's statements in forming the belief administrative hearings were covered by the policy, "his reliance was unjustifiable as a matter of law." (Hackethal v. National Casualty Co., supra, 189 Cal. App.3d 1102, 1111.) The policy itself provided coverage for "`each day the insured is required to attend the trial of a civil suit for damages against the insured alleged to have been caused' either `by malpractice in the practice of the profession of the insured' ... or `by an automobile accident'...." (Id. at pp. 1109-1110.) "The brochure ... put [Hackethal] on notice that the terms of the policy controlled the extent of his coverage. The brochure clearly states: `This brochure briefly outlines the insurance plan. Complete details and provisions of the insurance are contained in the policy.' (Italics added.) Moreover, the policy itself proclaims in bold letters: `PLEASE READ YOUR POLICY.' Dr. Hackethal testified that he did in fact read his policy when he received it, but stated that he `didn't analyze it....' He should have done so." (Id. at p. 1112.)[9]
The Hadlands contend Hackethal is distinguishable because the policy there, unlike the NN policy, was clear and unambiguous and, had Hackethal *1588 only read it carefully, he would have learned the truth.[10] They assert even if they had read their policy, they would not have known its coverage was inferior to the Reliance coverage because the benefits could not be calculated until after expenses had been incurred.
Nonsense. The issue is not whether the precise dollar amount of the benefits could be calculated in the abstract, but whether a comparison of NN's stated coverage with that offered by the Reliance policy would have revealed the NN policy offered less protection.[11] In this regard, NN policy's schedule of benefits expressly provided, for instance: an entirely unambiguous maximum surgical benefit of $6,000, regardless of whether the surgery consisted of an organ transplant, a partial or radical mastectomy or the amputation of a toe;[12] a maximum nonintensive care hospital room and board benefit of $300 a day; and a maximum benefit of $300 a day for outpatient hospital charges. The Reliance policy provided unqualified benefits of 80 *1589 percent of covered expenses. Thus, any representations by defendants of "full protection" under the NN policy, or coverage "as good or better" as the Reliance policy, were patently at odds with the express provisions of the written contract. If the Hadlands had read it, they would have discovered its limitations, rejected it, and continued to pay the higher premium for the increased security of Reliance's more comprehensive coverage.
(4) Absent an ambiguity, "... courts may not rewrite the insurance contract or force a conclusion to exact liability where none was contemplated." (Hackethal v. National Casualty Co., supra, 189 Cal. App.3d 1102, 1109.) As the Supreme Court stated in Sarchett v. Blue Shield of California (1987) 43 Cal.3d 1, 15 [233 Cal. Rptr. 76, 729 P.2d 267], a court "must hold the insured bound by clear and conspicuous provisions in the policy even if evidence suggests that the insured did not read or understand them." (3b) The Hadlands, having failed to read the policy and having accepted it without objection, cannot be heard to complain it was not what they expected. Their reliance on representations about what they were getting for their money was unjustified as a matter of law.[13]
The judgment is reversed. The matter is remanded with directions to the court to enter judgment in favor of defendants and to award them their costs, including those incurred on appeal.
Sills, P.J., concurred. Crosby, J., concurred in the result.
A petition for a rehearing was denied May 9, 1994, and respondents' petition for review by the Supreme Court was denied August 11, 1994. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
NOTES
[1] In relevant part, the certificate stated: "It is important to us that you understand and are satisfied with the coverage being provided to you. If you are not satisfied that this coverage will meet your insurance needs, you may return this Certificate to us at our Regional Office in Hurst, Texas within 10 days after you receive it and you will receive a full refund of all premiums you have paid."
[2] All further statutory references are to the Insurance Code unless otherwise stated.
[3] The Hadlands alleged appellants, with a frequency to indicate a general business practice, had: misrepresented pertinent facts relating to coverage (subd. (h)(1)); failed to acknowledge and act reasonably promptly on the Hadlands' claim (subd. (h)(2)); failed to adopt and implement reasonable standards for prompt investigation and processing of claims such as the Hadlands' (subd. (h)(3)); failed to affirm or deny the Hadlands' claim within a reasonable time after receiving proof of loss (subd. (h)(4)); attempted to induce the Hadlands to settle their claim for less than the amount which the Hadlands would believe they were entitled to based on appellants' advertising materials (subd. (h)(7)); and failed to promptly give the Hadlands a reasonable explanation of the basis for denial of the claim (subd. (h)(13)).
[4] In reversing itself, the court noted, inter alia, the rejection of Royal Globe by other state courts, the widespread scholarly criticism of the opinion, and the adverse consequences, analytical difficulties and confusion it had engendered. (Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal.3d 287, 296-304.)
[5] The Hadlands argue the only reason the Smith plaintiff's belatedly asserted claim was disallowed was that it was barred by the statute of limitations. Not so. The Smith court states, without equivocation: "The second and third causes of action may be discussed briefly. Both are barred by [Moradi-Shalal.]" (Smith v. State Farm Mut. Auto. Ins. Co., supra, 5 Cal. App.4th 1104, 1116.) And it goes on to note the assigned first party claim of the second cause of action falls within the general prohibition of Moradi-Shalal. (Ibid.)
[6] The Hadlands cite Crittenden v. McCloud (1951) 106 Cal. App.2d 42 [234 P.2d 642] for the proposition a "trial judge has an affirmative duty to allow an amendment to conform to proof where otherwise the moving party might not prevail due to legal technicalities." Crittenden does not proclaim the unqualified and expansive rule attributed to it by the Hadlands. But even if it did, the issue here is not one of "legal technicalities," but of substantive law, and Crittenden is of no help.
[7] The Hadlands do not challenge the nonsuit with respect to any other causes of action.
[8] The Hadlands said they did not review the insurance policy because they did not understand "insurance verbiage," they trusted the insurance salesman and relied on his representations as to the nature and extent of the NN coverage, and they had reviewed the promotional materials.
[9] Taff v. Atlas Assur. Co. (1943) 58 Cal. App.2d 696 [137 P.2d 483] further illustrates the principle. There, the plaintiff sought to reform an insurance contract on the grounds, inter alia, of fraud, claiming he was told by the agent the policy afforded the broadest coverage available and at a lesser premium than another policy and was designed to protect the custom of the jeweler's trade. (Id. at p. 698.) The plaintiff suffered a loss which fell within a policy exclusion theft of his briefcase full of jewelry from the car in which he had left it unattended. He said he had relied upon the statement of the insurer's agents in buying the policy that it would protect him "`under any and all circumstances.'" (58 Cal. App.2d at p. 699.) The Taff court said plaintiff failed to prove he was a victim of fraud. There was no reason the insurer should have suspected him to be ignorant of the terms of his policy, including its exclusions. "The insurer was not required to furnish absolute coverage." (Id. at p. 701.) "Not only did ordinary prudence require that he examine it to see that it was the policy he had intended to purchase but in bold letters on the very face of it he was admonished to read and return it for correction." (Id. at p. 702.) The Taff court also noted a "casual reading" would have revealed the policy did not protect him "under any and all circumstances." (Ibid.) The plaintiff was not entitled to relief from the result of his failure to read the policy; had he read it, and the terms did not provide the coverage he expected, he could have rejected it. (Ibid.)
[10] The Hadlands also contend Hackethal is inapt because it did not involve misrepresentations at odds with the policy language. The brochure may not have directly misrepresented the policy's coverage, but the broker clearly did. As the court noted: "Now, with regard to the brochure, significantly, the [broker] handed it to Dr. Hackethal at the time the agent is alleged to have made the misrepresentations regarding coverage. The boldly printed material in the brochure contradicted the misrepresentations allegedly made by the [broker] to the effect that the National policy would cover Dr. Hackethal even if he were merely a witness in a suit against another doctor. In at least four places on the brochure the policy is described as the `DEFENDANTS' REIMBURSEMENT Policy,' and on the cover of the brochure in large letters appears the question, `IF YOU WERE SUED WHAT WOULD YOU LOSE?' (Italics added.)" (Hackethal v. National Casualty Co., supra, 189 Cal. App.3d 1102, 1111.) The Hackethal court did not find there were no material misrepresentations; it found Hackethal could not have justifiably relied on any such misrepresentations.
[11] Initially, we observe the NN's certificate of insurance described the policy as one for "MAJOR HOSPITAL EXPENSE COVERAGE," while the Reliance policy was a major medical policy, leading to the reasonable conclusion the coverage of the former was less comprehensive than that of the latter. In any event, if the title alone did not make that fact clear, the express provisions of the schedule of benefits, discussed post, did.
[12] The Hadlands contend different percentages of the $6,000 maximum benefit applied to different surgeries, creating an ambiguity. It is true 100 percent of the $6,000 was available in the case of a heart transplant, while only 50 percent was available for a hysterectomy, but that does not change the fact of the maximum benefit or create any ambiguity as to that fact.
[13] Our disposition of the fraud issue makes it unnecessary for us to decide the other issue raised by the Hadlands in their cross-appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263717/ | 24 Cal.App.4th 826 (1994)
29 Cal. Rptr.2d 492
CONCERNED CITIZENS OF SOUTH CENTRAL LOS ANGELES et al., Plaintiffs and Appellants,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
Docket No. B075740.
Court of Appeals of California, Second District, Division Seven.
April 28, 1994.
*831 COUNSEL
Mary M. Lee, Paul E. Lee and Richard A. Rothschild for Plaintiffs and Appellants.
O'Melveny & Myers, James W. Colbert III and Edward J. Szczepkowski for Defendants and Respondents.
OPINION
LILLIE, P.J.
Plaintiffs Concerned Citizens of South Central Los Angeles and Equal Rights Congress of Los Angeles, unincorporated associations, and Gwendolyn Cannon appeal from an order denying their petition for writ of mandate.[1]
In their petition, plaintiffs sought to compel defendants Los Angeles Unified School District (District) and Board of Education of the City of Los *832 Angeles (Board) to set aside the certification of the subsequent environmental impact report (SEIR) for the planned construction of an elementary school, "Jefferson 3," at a site in a low-income minority neighborhood in South Central Los Angeles, and requiring the elimination of 67 units of affordable housing and the displacement of 280 people; plaintiffs also challenged the Board's approval of the Jefferson 3 project.
FACTUAL AND PROCEDURAL BACKGROUND
As most of the factual and procedural background of this case was admitted in respondents' answer to the first amended petition for writ of mandate, we obtain the following facts from those admitted portions, as well as from the administrative record.
The community of South Central Los Angeles is a primarily minority, low-income community of about 200,000 residents, located about 1.5 miles south of downtown Los Angeles. The focus of this action is the proposed site for the "Jefferson 3" elementary school, lying within the Jefferson High School complex attendance area (Jefferson attendance area).
In 1986, defendant Board, the governing and policymaking entity for the District, determined that the existing overcrowded conditions and projected enrollment within the Jefferson attendance area necessitated construction of *833 four new elementary schools, the expansion of an existing elementary school, and construction of a new junior high school and a new senior high school. One of the four proposed new elementary schools is the Jefferson 3 school.
In November and December 1987, the Board conducted public meetings to solicit community input regarding potential sites for the proposed Jefferson attendance area school construction program. Community residents, including plaintiffs, participated in the meetings; plaintiffs, although favoring additional school construction, opposed the construction or expansion of additional school facilities on sites requiring residential displacement and destruction of existing housing. In March 1988, the Board approved the intensive study of eight sites for school construction and ordered the preparation of a draft environmental impact report (EIR) for each site. The Board proposed that the Jefferson 3 school be located on a 4.6-acre rectangular site, bounded by Broadway, Main Street, 47th Street and 47th Place, and which contained 67 dwelling units, 3 businesses and 28 swap meet vendors.
In November 1988, the Board certified a final EIR for the proposed Jefferson 3 project. In December 1988, plaintiffs filed this proceeding challenging the approval of the Jefferson 3 project. On August 3, 1989, a stipulation and order was entered wherein defendants District and Board agreed to prepare an SEIR for the Jefferson 3 project. In February 1992, the SEIR was completed, and, on June 25, 1992, over the continuing objection of plaintiffs, the Board certified the SEIR and once again approved the Jefferson 3 project. The SEIR described the proposed school as a two-story structure with thirty classrooms, administrative offices, library, and subsidiary facilities.
In connection with its approval of the project, the Board adopted a statement of facts and findings and a statement of overriding considerations. The Board found that the project would cause "a significant loss of affordable housing in the local area. This also includes a significant cumulative loss of affordable housing in South Central Los Angeles, as caused by this and other projects in the region." The Board also found that "specific economic, social, and other considerations make further reduction of these impacts or adoption of alternatives avoiding these impacts infeasible." The Board's statement of overriding considerations stated that "The proposed project is in response to the need for educational facilities in an area of the School District that is experiencing overcrowded school facilities and high enrollment. This need is documented in the Administrative Record. The LAUSD finds that a new elementary school is needed to avoid overcrowding *834 at other elementary schools in the area and provide a healthy atmosphere of public education. [¶] ... There are already approximately 3,350 students being transported out of the Jefferson attendance area to other attendance areas of LAUSD where space is available. The new school would reduce the number of students requiring bus transportation due to overcrowded conditions in the schools nearest their homes."
The Board also concluded that "to the extent that any impacts attributable to the project remain unmitigated, such impacts are acceptable in light of the overriding social, economic and other benefits set forth here, in the EIR and in the Administrative Record. The LAUSD Board finds that the alternatives set forth in the EIR are infeasible and less desirable than the project itself. The LAUSD Board finds that the project's benefits outweigh the unmitigated impacts and justify approval of the project."
In July 1992, plaintiffs filed a first amended petition for writ of mandate and complaint for injunctive and declaratory relief. This appeal concerns only the first two causes of action of the petition. In the first cause of action, plaintiffs alleged that the EIR and/or SEIR are legally inadequate under CEQA because they (1) fail to address the potential adverse impacts and cumulative impacts of the project on affordable housing in South Central Los Angeles, (2) do not adequately address all reasonable alternatives to the proposed project, (3) fail to address or disclose the adverse impacts of the project on traffic hazards and circulation in the area, (4) ignore the "growth-inducing impacts of the proposed project," (5) fail to address the potential cumulative impacts of the project and the other projects in the Jefferson attendance area on the supply of affordable housing in the area, (6) fail to disclose the significant adverse economic and social impacts associated with the project, (7) fail to address the issue of the inconsistency of the proposed project with the provisions of the General Plan for the City of Los Angeles dealing with the preservation of stable neighborhoods and affordable housing, and (8) do not adequately respond to public comments and questions.
In the second cause of action, plaintiffs alleged that defendants failed to make adequate written findings under Public Resources Code section 21081 and CEQA Guidelines sections 15088 and 15089 (Cal. Code Regs., tit. 14, §§ 15088 and 15089; hereinafter referred to as Guidelines) pertaining to mitigation measures and the economic and social considerations affecting mitigation measures. Plaintiffs also challenged the sufficiency of the evidence supporting the findings "regarding the absence of significant adverse environmental impacts or feasible alternatives, the feasibility of the project, and the presence of benefits that override any adverse impacts."
*835 Both sides filed memoranda of points and authorities on the foregoing issues; after hearing on February 10, 1993, the matter was submitted. On March 2, 1993, the court issued a ruling denying the petition for writ of mandate as to the first and second causes of action. The ruling stated that "Under the substantial evidence and prejudicial abuse of discretion tests set forth in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392 [253 Cal. Rptr. 426, 764 P.2d 278], moving parties have failed to demonstrate, in light of the entire record, responding party's decision is not supported by substantial evidence." The court also specifically concluded that moving parties failed to present sufficient evidence that the EIR was inadequate, that the SEIR adequately considered the socio-economic effect of residential displacement, that there was an adequate discussion of alternative plans under Public Resources Code section 21061, and that the findings regarding mitigation measures adequately deal with the loss of housing.
Plaintiffs filed timely notice of appeal from the order denying the petition for writ of mandate as to the first and second causes of action. On appeal, appellants claim the SEIR is legally inadequate under CEQA with respect to the issues of the cumulative impact of the project, mitigation of housing loss, and a study of alternative sites for the Jefferson 3 school. Appellants also claim that respondents abused their discretion in (1) refusing to respond to the suggestion by the author of the SEIR to reopen the site selection process in the wake of the 1992 civil disturbances in which many stores and businesses had been burned, creating new vacant sites in the area, and (2) in failing to adequately explain the finding that mitigation is infeasible.
I
ADEQUACY OF SEIR
"The standard of review of whether an agency has complied with CEQA requirements governing consideration of alternatives and mitigation measures in adopting an EIR is determined by Public Resources Code section 21168.5. [Citation.] The inquiry `shall extend only to whether there was a prejudicial abuse of discretion' by the public agency. `Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' (Pub. Resources Code, § 21168.5.)" (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal. App.4th 729, 738 [22 Cal. Rptr.2d 618].)
(1) "A reviewing court does not pass upon the correctness of the EIR's environmental conclusions, but only upon its sufficiency as an informative *836 document.... `Under CEQA, an EIR is presumed adequate (Pub. Resources Code, § 21167.3), and the plaintiff in a CEQA action has the burden of proving otherwise.'" (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, 18 Cal. App.4th at p. 740.)
(2) "`The EIR is an informational document with the stated purpose of providing public agencies and the public with "detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project." [Citations.]' ... Technical perfection is not required; the courts have looked not for an exhaustive analysis but for adequacy, completeness and a good-faith effort at full disclosure." (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal. App.4th 351, 368 [7 Cal. Rptr.2d 307].)
A. Cumulative Impact
(3a) Appellants contend that the SEIR is inadequate because it fails to provide sufficient information on the cumulative housing stock loss threatened by the activities of the District and other agencies, although appellants concede that the SEIR "appropriately identifies the loss of low income housing units as a significant cumulative environmental impact of the proposed school project." Appellants argue that the SEIR's discussion of cumulative impacts must reflect the severity of the cumulative impacts not just in the Jefferson attendance area, but throughout South Central Los Angeles, in order to provide meaningful information to the Board and the public.
The SEIR, excluding over 150 pages of appendices, contains 125 pages. An entire section of the SEIR (about 13 pages) is devoted to the topic of population and housing. That section discusses studies and provides statistics as to housing availability and vacancy rates in the "primary housing area," and a "secondary housing area." The primary area is the neighborhood immediately surrounding the project site and is located within the area served by the zip code 90037; the secondary area consists of the surrounding area of the Jefferson attendance area, and is within an area served by an additional five zip codes. The SEIR notes that the primary area has an overall average vacancy rate of 2.1 percent; the secondary area overall vacancy rate is 2.0 percent; the low vacancy rates show that the housing market in the Southeast Los Angeles Planning District is very limited, with replacement housing difficult to find. The SEIR provides statistics on the availability and cost of housing for sale in the Jefferson 3 project area, as well as housing for rent in the area. The SEIR also acknowledges that in *837 addition to the 67 dwelling units displaced by the project in the primary area, an additional 91 units would be displaced by other projects in the secondary area, for a total cumulative housing displacement of 158 units. The SEIR concludes that "The impact of a reduction in 67 total dwelling units would be considered a significant adverse impact on housing in the local area. In fact given the shortage of vacant housing even a much smaller reduction in the current housing supply would be considered a significant adverse impact on housing resources in the local area. [¶] The cumulative impact of all of the LAUSD Jefferson attendance area school projects ... indicates the displacement of an estimated 158 units in this area. Because of the low vacancy rate in this area, and the relatively high percentage that these units represent compared to all vacant units available in the area, the cumulative impact is considered significant."
The SEIR also recognizes that the project would cause a significant loss of affordable housing in the local area and there would be a significant cumulative loss of affordable housing in South Central Los Angeles, and that these impacts remain significant "despite the mitigation measures required of the project."
We reject appellants' claim that the SEIR understates the severity and significance of the cumulative impact of the project on housing loss in the Jefferson attendance area. Appellants contend that the figure of 91 units is "indefensibly low" and does not reflect all reasonably anticipated future projects of LAUSD or projects of other agencies. Accompanying appellants' petition were the declarations of Margaret Diop, an associate planner for the City of Los Angeles from 1989 to 1991, and Paul Lee, an attorney with the Legal Aid Foundation of Los Angeles. Diop declared that transit agencies are undertaking projects near the Jefferson attendance area, including a project to widen a portion of the Harbor Freeway south of the Vernon Avenue exit, an area "immediately adjacent to the Jefferson attendance area," and that the California Department of Transportation (CALTRANS) "has or will acquire several hundreds of parcels of land through eminent domain in order to complete this project." It is unclear from Diop's declaration whether of the properties sought to be acquired by CALTRANS are dwelling units.
Lee declared that in connection with a project for a new police substation (the Newton Substation Project) in the area of East 34th Streets and Central Avenue (in the secondary study area), the police department "has targeted" seven single-family dwelling units and three commercial parcels "for acquisition and demolition." Lee provides no information on the stage of development of this project or whether it has even been approved by the City of *838 Los Angeles. An EIR need not contain discussion of specific future action that is merely contemplated nor a gleam in a planner's eye. (Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal. App.4th 712, 738 [12 Cal. Rptr.2d 785].)
There is no indication in our record that the figure of 91 lost dwelling units does not include losses from all reasonably anticipated future projects of the District. As to projects of other agencies, the only concrete information supplied by appellants is the anticipated loss of seven units due to a new police substation in the area. (4) The absence of this information from the SEIR "`does not per se constitute a prejudicial abuse of discretion.'" (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, 18 Cal. App.4th 729, 749.) A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process. (Id. at p. 748.) If the EIR, read as a whole, adequately deals with the question of cumulative impacts, it will suffice. (Ibid.) "`Absolute perfection is not required'; instead the level of analysis `is subject to a rule of reason.'" (Ibid.)
(3b) In this case, the SEIR acknowledged that the project would have a significant adverse impact on the stock of affordable housing in the local area and a cumulative impact on the loss of housing in South Central Los Angeles. Appellants fail to identify how the omission of more detailed information about other projects in the Jefferson attendance area, or about the housing problem in the larger South Central Los Angeles area, misled the District or the public, or was prejudicial in any way. It cannot be said that the SEIR minimizes or ignores the cumulative impact of the instant project on the availability of affordable housing in the Jefferson attendance area.
Although appellants question the adequacy of the inquiry into projects undertaken by other government agencies in the Jefferson attendance area, the SEIR indicates that contact was made with departments of the City of Los Angeles, the Community Redevelopment Agency, the Rent Stabilization Division, the United States Housing and Urban Development Agency, and the University of Southern California.
We also conclude that the SEIR is not inadequate because it does not study in greater detail the impact of the project on the housing situation in the greater South Central Los Angeles area. This claim assumes an impact in the greater South Central Los Angeles, i.e., that the persons displaced by the project will actually move to other parts of the South Central area and will *839 not move outside the South Central area entirely or remain in the Jefferson attendance area. The SEIR does not indicate where those persons displaced by the Jefferson 3 project plan to relocate, so the impact on any one part of the greater South Central Los Angeles area is speculative at this point. "As the Guidelines instruct, `the discussion [of cumulative impacts] should be guided by the standards of practicality and reasonableness.' (Guidelines, § 15130, subd. (b).) ... `A project opponent or reviewing court can always imagine some additional study or analysis that might provide helpful information. It is not for them to design the EIR.'" (Sacramento Old City Assn. v. City Council (1991) 229 Cal. App.3d 1011, 1033 [280 Cal. Rptr. 478].)
Moreover, appellants do not challenge that portion of the SEIR which explains that "The information available on the status of housing availability, and in particular affordable housing, is fragmentary. There is information on the vacancy rates for census areas. There is currently no tracking system to monitor the loss of affordable housing in Los Angeles. Methods for implementing a tracking system are currently being studied precisely to allow planners to foresee cumulative impacts. No other projects were foreseen, by the City of Los Angeles planners contacted, which are expected to impact housing in South Central Los Angeles. USC indicated it does not intend to acquire any residential property for its expansion program. USC indicated its residential construction program will improve the availability of housing in the USC area. HUD did a search of their data base and found no information specific to Los Angeles."
The SEIR adequately informed the agency and the public of the housing conditions in the greater South Central area with sufficient detail to "enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project." (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App.3d 692, 712 [270 Cal. Rptr. 650].) As explained below, the SEIR meets the requirement in Guidelines section 15130, subdivision (b)(1)(B) that the SEIR contain a summary of projections contained in an adopted general plan or related planning document which is designed to evaluate regional or area-wide conditions. (221 Cal. App.3d at p. 722.)
The SEIR explains that the Southeast Los Angeles District Plan, part of the City of Los Angeles General Plan, commits the City to redirect its energies to improve the declining Southeast Los Angeles District by focusing on (1) poverty and unemployment, (2) serious deficiencies in educational achievement, and (3) lack of adequate community safety. The District plan identifies the low level of educational achievement as a crucial issue contributing to the problems of the District and states that most of the existing *840 school facilities and site sizes in the Jefferson attendance area are outmoded, overcrowded, and not up to current standards. The District plan characterizes the need to upgrade the educational environment to be of "extreme importance."
As to the issue of housing, the District plan notes that nearly half the dwelling units in the District were built before 1940; some units require maintenance, some require rehabilitation, and a few are structurally unsafe and should be demolished; there is a much higher than average number of unoccupied dwelling units which should be rehabilitated and reoccupied; low rent housing is concentrated in the District, where residents are economically limited in terms of housing choice. The District plan calls for the preservation and upgrading of housing.
In light of the District plan, the SEIR forthrightly admits that "In the case of Jefferson New Elementary School No. 3 there is a conflict between the goals for education and the goals for housing. The need to build more elementary schools to relieve severe overcrowding has led to the proposal that this new school should displace existing housing. This is the primary planning issue which has led to the preparation of this document."
We conclude that substantial evidence supports the conclusion that the SEIR represents a good faith effort at full disclosure on the issue of the project's impact on housing in the Jefferson attendance area as well as in the larger community. Although not exhaustive (Kings County Farm Bureau v. City of Hanford, supra, 221 Cal. App.3d at p. 712), the SEIR is adequate as an informative document and affords a basis for meaningful consideration of the issue of the cumulative impacts of the project on housing.
B. Mitigation of Housing Loss
(5a) Appellants contend that the SEIR fails to discuss measures to mitigate the loss of affordable housing caused by the project. Appellants acknowledge that the SEIR sets out four mitigation measures: (1) paying property owners fair market value for the property acquired by the District, (2) affording relocation assistance to residents and business occupying the acquired properties, pursuant to the California Relocation Assistance and Real Property Acquisition Act of 1970, (3) surveying residents, such as elderly or handicapped persons, with need of special assistance for relocation, and (4) monitoring the relocation efforts with follow-up interviews. The SEIR admits that even after implementation of the foregoing measures, "the reduction of local housing supply and cumulative impacts on reduction of the area housing supply are expected to remain significant."
*841 Appellants maintain that the relocation measures do nothing to mitigate housing loss, and that the SEIR is inadequate for failing to discuss the possibilities of building replacement housing, putting money in a housing fund, working with nonprofit corporations or other government agencies to rehabilitate existing housing, or seeking state or federal subsidies for affordable housing. They argue that "While there may be some question over whether the District itself could condemn land to build housing, surely some mitigation measures are possible."
(6) Although an EIR must identify proposed mitigation measures for adverse effects of the project, "`CEQA does not require analysis of every imaginable alternative or mitigation measure; its concern is with feasible means of reducing environmental effects.'" (Rio Vista Farm Bureau Center v. County of Solano, supra, 5 Cal. App.4th at p. 376, italics in original.) Feasible is defined in Public Resources Code section 21061.1 as capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors. Guidelines section 15364 defines feasible as "capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." As stated in Rio Vista, the statute does not demand what is not realistically possible, given the limitation of time, energy and funds. (5 Cal. App.4th at p. 376.)
(5b) We reject appellants' claims that the SEIR is inadequate in its treatment of mitigation measures. The discussion of mitigation measures in the SEIR must be assessed in accordance with the "rule of reason" and in light of the principle that our role is merely to determine whether the SEIR is sufficient as an informational document. Given the speculative nature of the relocation plans of the residents displaced by the Jefferson 3 project, and the lack of any information in the SEIR concerning specific housing projects planned or undertaken by other agencies in the Jefferson attendance area, there is insufficient evidence to support the claim that District should have discussed the issue of collaboration with other agencies to provide housing in the area. It is clear from section 4.1 of the SEIR, captioned "Land Use and Relevant Planning," as well as from the section on population and housing, that the availability of affordable housing was a serious problem of citywide concern which realistically could not be solved on a piecemeal basis. (See, e.g., Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal. App.3d 515, 526-527 [147 Cal. Rptr. 842].) A reasonable inference is that other agencies, including the City of Los Angeles, were "subject to the policies and programs outlined in the Southeast Los Angeles District Plan," which is *842 intended to "commit the City to the redirection of its energies toward the improvement and upgrading of declining areas of Los Angeles in general and the Southeast Los Angeles District in particular." In light of the provisions of the general plan for the City of Los Angeles, as well as the provisions of the Southeast District Plan, District did not abuse its discretion in failing to discuss the additional mitigation measures suggested by appellants.
Appellants argue that "While there may be some question over whether the District itself could condemn land to build housing, surely some mitigation measures are possible," and that Education Code section 35160 constitutes a "broad grant of power" to "enable a school district to engage in planning to mitigate the loss of low income housing caused by its own projects." The claims that the District was obligated to consider the mitigation measures of funding replacement housing or building replacement housing itself are novel claims offered without any applicable legal authority to establish that such measures are economically or legally feasible.
"CEQA does not grant an agency new powers independent of the powers granted to the agency by other laws." (Guidelines, § 15040, subd. (b).) "Where another law grants an agency discretionary powers, CEQA supplements those discretionary powers by authorizing the agency to use the discretionary powers to mitigate or avoid significant effects on the environment when it is feasible to do so with respect to the projects subject to the powers of the agency." (Guidelines, § 15040, subd. (c).) Within the limitations described in Section 15040, a lead agency for a project has authority to require changes in any or all activities involved in the project in order to avoid significant effects on the environment. (Guidelines, § 15041, subd. (a).)
We are aware of no authority which would require the District, under the circumstances of this case, to consider a mitigation measure which itself may constitute a project at least as complex, ambitious, and costly as the Jefferson 3 project itself. Appellants' citation to Health and Safety Code section 33413, subdivision (a), is inapposite, as it applies to redevelopment agencies, not school districts. Moreover, it is unnecessary for us to determine whether Education Code section 35160 is broad enough to permit the District to undertake the mitigation measures suggested by appellants. "A court's task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. [Courts] have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily *843 prescribed standard of review permitted us to do so." (A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal. App.4th 630, 646 [20 Cal. Rptr.2d 228].) The standard of review is not de novo but the traditional, deferential substantial evidence test under Public Resources Code section 21168.5. (16 Cal. App.4th at pp. 638-639.) Under Public Resources Code section 21168.5, our inquiry extends only to whether there was a prejudicial abuse of discretion; such abuse is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. (16 Cal. App.4th at p. 639.)
As an EIR must only consider "a reasonable range of project alternatives and mitigation measures" (Rio Vista Farm Bureau Center v. County of Solano, supra, 5 Cal. App.4th at p. 379), we conclude that the mitigation measures considered in the SEIR were adequate. We also reject appellants' contention that even if the measures they suggest are infeasible, the SEIR is inadequate for failing to discuss in detail these infeasible mitigation measures. Under the circumstances in this case, the District's failure to discuss infeasible mitigation measures does not constitute a prejudicial abuse of discretion, and our discussion of the matter now is not, as urged by appellants, a post hoc rationalization or postapproval environmental review.
C. Alternative Sites
(7) Appellants contend that District "abused its discretion by refusing to respond on the record to the suggestion of the author of the SEIR to reopen the site selection process, and by the SEIR's otherwise inadequate discussion of alternative sites."
The SEIR was made available for comment in February 1992; the review period ended April 3, 1992. In addition to the preferred project site at Broadway and 47th Streets, the SEIR analyzed and evaluated six alternative sites for the school. Three of the alternative sites were being used as park or recreation areas, one alternative site was other property owned by District and being used for maintenance and storage, one site was vacant, and one site on Avalon and 43rd Street was a mixture of residential and commercial buildings.
In late April and early May 1992, Los Angeles experienced civil disturbances or riots. On May 13, 1992, planner Dwayne Mears of the planning Center, which prepared the SEIR for District, wrote a letter to the District stating that a new shopping center across the street from the project site had been burned, as well as the swap meet building on the site itself, and concluding that "the new situation created by the destruction caused by the *844 riot affects at least two aspects of the EIR. The relocation impact would now be much less since the swap meet businesses no longer can use the site.... However, having so many area stores and shopping centers burned may be a more important difference. The site selection process was done several years ago and now there may be additional vacant sites within the service area for Jefferson No. 3. I think a strong case can be made that it would be environmentally superior to utilize a burned out commercial site for a school, thus avoiding the project's significant residential displacement impacts. Since there may now be another site available that would avoid the project's significant impacts while meeting the site requirements, the site selection process should be reopened or else the EIR will be open to challenge. If I were suing LAUSD I think I could win on that issue."
According to the declaration of Robert Niccum, Director of Facilities, Planning and Real Estate for the District, state guidelines suggest that the size of a new elementary school site should be 10 acres or more; because of the difficulty in finding sites of that size in an urban environment, District guidelines permit smaller sites, typically about 5 acres; the site at issue here is slightly smaller than that, being about 4.6 acres; as a result of the Los Angeles riots, during the week of May 4, 1992, he drove through the Jefferson 3 service area, a neighborhood bordered by Vernon Avenue, Main Street, Slauson Avenue, and Broadway; fires had destroyed several isolated commercial buildings, but he did not observe any fire damage that was large enough, or concentrated enough, to cover an entire 4.6 acre site; he concluded that the riots did not create any additional sites that should be considered by the District as potential sites; later in May, the letter from the planning center was brought to his attention; because he had already conducted such an investigation, he knew that there had been no change of circumstance respecting the area that affected the sufficiency of the SEIR's discussion of alternative sites; he advised District staff that such an investigation was not necessary and he did not authorize one.
Our record does not support the charge by appellants that the District "ignored the advice of the author of the SEIR to reopen the site selection process." Rather, our record shows that independently of any suggestion in the May 13, 1992, letter, Mr. Niccum did precisely what the letter recommended: "The neighborhood should be resurveyed for potential school sites."
Although appellants do not challenge Mr. Niccum's conclusions, they contend that his opinion should have been shared with the Board or the public and should have been discussed in the SEIR. Under the circumstances *845 of this case, the District was not required to hold a hearing on the issue of whether the site selection process should be reopened after the civil disturbances. (A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal. App.4th 1773, 1804-1805 [16 Cal. Rptr.2d 358].)
Nor was the District required to discuss the results of Mr. Niccum's investigation in the SEIR. As Mr. Niccum discovered, the civil disturbances did not create any new potential sites. An EIR does not have to contain the results of unfruitful investigations or pursuits down blind alleys, but only "an analysis of those alternatives necessary to permit a reasoned choice" (Rio Vista Farm Bureau Center v. County of Solano, supra, 5 Cal. App.4th at p. 378), and which are feasible, i.e., capable of being accomplished in a successful manner. (Id. at p. 376.)
(8) To the extent that appellants contend that the civil disturbances required the preparation of a subsequent report under the provisions of Public Resources Code section 21166, we reject such contention. On this record, we can only conclude that the actions of the Board in certifying the SEIR were quasi-legislative in character and that the proper form of judicial review of the action lies in traditional mandamus under Public Resources Code section 21168.5 and Code of Civil Procedure section 1085. (Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal. App.4th 712, 729 [12 Cal. Rptr.2d 785].) The trial court was therefore justified in receiving additional evidence, such as Mr. Niccum's declaration, outside the administrative record concerning the SEIR. (Ibid.) We conclude that the record before the trial court contains substantial evidence to support the conclusion that the civil disturbances did not provide "new information," (Pub. Resources Code, § 21166, subd. (c)) and did not constitute substantial changes in the circumstances of the project (Pub. Resources Code, § 21166, subd. (b)) so as to require modifications in the SEIR. (See, e.g., Sierra Club v. County of Sonoma (1992) 6 Cal. App.4th 1307, 1318 [8 Cal. Rptr.2d 473]; A Local & Regional Monitor v. City of Los Angeles, supra, 12 Cal. App.4th at pp. 1802-1803, 1806.)
(9) We also reject appellant's contention that the SEIR's discussion of alternative sites is defective in that it "operates under a double standard," treating problems with alternative sites as insurmountable, yet at the same time ignoring or promising to mitigate identical problems with the preferred site. Appellants here do not appear to be challenging the depth and detail of the SEIR's discussion of alternative sites, but only appear to complain about the fact that District approved the project at its preferred site and concluded that the alternatives were infeasible and less desirable. Appellants' contention is not cognizable under the appropriate standard of review.
*846 "CEQA is more or less a procedural scheme that makes no guarantees that environmental considerations will prevail." (Save San Francisco Bay Assn. v. San Francisco Bay Conservation etc. Com. (1992) 10 Cal. App.4th 908, 923 [13 Cal. Rptr.2d 117].) The reviewing court does not pass upon the correctness of the EIR's environmental conclusions, but only upon its sufficiency as an informative document. (A Local & Regional Monitor v. City of Los Angeles, supra, 16 Cal. App.4th at p. 639.) We may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. (Ibid.)
Moreover, appellants appear "to be laboring under the misconception that the identification of adverse environmental impacts is the equivalent of a legal mandate to refuse to approve and certify the EIR." (A Local & Regional Monitor v. City of Los Angeles, supra, 16 Cal. App.4th at p. 645.) "Under CEQA's environmental review, if a project will lead to `significant environmental effects,' the public agency cannot approve the project unless it adopts `mitigation measures' which `would substantially lessen the significant environmental effects.' [Citation.] In situations where a project's benefits outweigh its impacts, CEQA Guidelines section 15093 allows the certifying agency to approve the EIR, despite the inability to fully mitigate, by adopting a statement of overriding considerations. Thus, so long as it has made an informed decision in adopting a statement of overriding considerations, an agency need not require mitigation." (A Local & Regional Monitor v. City of Los Angeles, supra, 12 Cal. App.4th at p. 1807.)
In the instant case, the Board adopted the finding that, with respect to the project's impacts on housing, "specific economic, social, and other considerations make further reduction of these impacts or adoption of alternatives avoiding these impacts infeasible." The Board also adopted a statement of overriding considerations finding that "to the extent that any impacts attributable to the project remain unmitigated, such impacts are acceptable in light of the overriding social, economic and other benefits set forth here, in the EIR and in the Administrative Record. The LAUSD Board finds that the alternatives set forth in the EIR are infeasible and less desirable than the project itself. The LAUSD Board finds that the project's benefits outweigh the unmitigated impacts and justify approval of the project."
We conclude that substantial evidence supports the conclusion that the District proceeded in the manner required by law. To the extent that appellants suggest that the District proceeded improperly by selecting a preferred school site before drafting the SEIR, a similar contention was considered and rejected by the court in Stand Tall on Principles v. Shasta Union High Sch. *847 Dist. (1991) 235 Cal. App.3d 772, 783-784 [1 Cal. Rptr.2d 107].) Appellants' challenges to the SEIR based on the issue of alternative school sites are without merit.
II
ADEQUACY OF FINDINGS
(10) Appellants contend that the District's statement of facts and findings and statement of overriding considerations as to the issue of mitigation of housing loss (Pub. Resources Code, § 21081, subd. (c)), is inadequate. Appellants claim the finding "that specific economic, social, and other considerations make further reduction of these impacts or adoption of alternatives avoiding these impacts infeasible" is conclusionary, did not explain why mitigation was infeasible, and did not disclose the analytic route the agency traveled from evidence to action.
"A statement of overriding considerations reflects the final stage in the decisionmaking process by the public body. A public agency can approve a project with significant environmental impacts only if it finds such effects can be mitigated or concludes that unavoidable impacts are acceptable because of overriding concerns. (Pub. Resources Code, § 21081; Guidelines, §§ 15091 and 15092.) If approval of the project will result in significant environmental effects which `are not at least substantially mitigated, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record.' (Guidelines, § 15093, subd. (b).) These reasons constitute the statement of overriding considerations which is intended to demonstrate the balance struck by the body in weighing the `benefits of a proposed project against its unavoidable environmental risks.' (Guidelines, § 15093, subds. (a) and (c).)" (Sierra Club v. Contra Costa County (1992) 10 Cal. App.4th 1212, 1222 [13 Cal. Rptr.2d 182].)
While the mitigation and feasibility findings typically focus on the feasibility of specific proposed alternatives and mitigation measures, the statement of overriding considerations focuses on the larger, more general reasons for approving the project, such as the need to create new jobs, provide housing, generate taxes, and the like. (Sierra Club v. Contra Costa County, supra, 10 Cal. App.4th at p. 1222.) A statement of overriding considerations must be supported by substantial evidence contained in the final EIR and/or other information in the record. (Id. at p. 1223.)
We first must properly interpret the finding challenged by appellants. As we interpret the finding made by the District in this case, the District found *848 that despite the mitigation measures set out in the SEIR, the project would still cause a significant effect on housing in the area, which problem would remain after implementation of the mitigation measures; additional or further measures to mitigate housing loss are infeasible due to economic, social and other considerations. This interpretation of the finding is supported by viewing the statement of facts and findings as a whole, including the section dealing with alternatives to the proposed project. To the extent that appellants interpret the finding to be that the mitigation measures set out in the SEIR are infeasible, that interpretation is clearly erroneous, as the mitigation measures set out in the SEIR were adopted in the mitigation monitoring plan; it was only further or additional mitigation measures to reduce housing loss which were determined to be infeasible.
As properly interpreted, the findings as to housing loss under Public Resources Code section 21081, subdivision (c), are adequate. As set out in Guidelines section 15091, subdivision (a), the finding as to each significant environmental effect of a project is to be "accompanied by a brief explanation of the rationale for each finding." In this case, the finding that housing loss would remain unmitigated is immediately preceded by the explanation that "Despite the detailed consideration given to the project's impacts on land use changes and housing, and the mitigation specified, these impacts remain significant. These significant impacts include the effects on persons displaced and a significant loss of affordable housing in the local area. This also includes a significant cumulative loss of affordable housing in South Central Los Angeles, as caused by this and other projects in the region."
The foregoing explanation is sufficient to advert to the region-wide housing problem in South Central Los Angeles, the low vacancy rate, and the host of economic and social problems confronting this low-income, minority neighborhood. All of these factors are discussed in detail in the SEIR and are the specific "economic, social, and other considerations" which explain why the mitigation measures set out in the SEIR would not be successful in mitigating the project's effect on housing loss. These same extensive and complex social and economic problems also explain why further mitigation measures would be infeasible for the District to accomplish, given the narrow focus and purpose of the instant project.
Further, in this case, there is no doubt as to the District's "larger, more general reasons for approving the project," despite unavoidable impacts on housing. As stated in the statement of overriding considerations, the project is "in response to the need for educational facilities in an area of the School District that is experiencing overcrowded school facilities and high enrollment.... The LAUSD finds that a new elementary school is needed to *849 avoid overcrowding at other elementary schools in the area and provide a healthy atmosphere of public education. [¶] ... [T]o the extent that any impacts attributable to the project remain unmitigated, such impacts are acceptable in light of the overriding social, economic and other benefits set forth here, in the EIR and in the Administrative Record."
Substantial evidence in the SEIR supports the foregoing findings, which are sufficient to demonstrate the balance struck by the District in weighing the benefits of the proposed project against its unavoidable adverse impacts on housing.
We thus conclude that appellants' challenges to the adequacy of the SEIR are without merit. The findings made by the District are adequate under CEQA and supported by substantial evidence in the record. The trial court properly denied the petition for writ of mandate on the first and second causes of action.
DISPOSITION
The order is affirmed.
Johnson, J., and Woods (Fred), J., concurred.
NOTES
[1] The order appealed from involves the first two causes of action of a pleading containing six causes of action. The first two causes of action each constitute a petition for writ of mandate under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.); the third cause of action is a petition for writ of mandate pursuant to the planning and zoning laws; the fourth cause of action is for a writ of mandate for violation of the Real Property Acquisition and Relocation Assistance Act of 1970; the fifth cause of action is for injunctive relief and the sixth cause of action is for declaratory relief.
The order is appealable as a final judgment in a special proceeding. (Code Civ. Proc., §§ 1064 and 904.1, subd. (a)(1); Knoll v. Davidson (1974) 12 Cal.3d 335, 343 [116 Cal. Rptr. 97, 525 P.2d 1273]) The general appeal provisions of the Code of Civil Procedure govern all special proceedings, even those intended to be summary in nature, unless the Legislature has specifically prohibited appeal in the statute creating the particular special proceeding. (Knoll v. Davidson, supra, 12 Cal.3d at p. 343.) "[U]nless the statute creating the special proceeding prohibits an appeal, there is an appeal from a final judgment entered in a special proceeding." (Ibid.) Moreover, despite the fact that there remain pending in the trial court additional claims that have not been resolved, the order denying a petition for writ of mandate under CEQA is treated as an appealable final judgment. (See Elmore v. Imperial Irrigation Dist. (1984) 159 Cal. App.3d 185, 190-191 [205 Cal. Rptr. 433]; Bullock v. City and County of San Francisco (1990) 221 Cal. App.3d 1072, 1086 [271 Cal. Rptr. 44].)
Appellants cite language in Sierra Club v. County of Sonoma (1992) 6 Cal. App.4th 1307, 1312-1313, footnote 1 [8 Cal. Rptr.2d 473], which suggested that although the order involved therein was not a final judgment due to the pendency of other claims in the trial court, the appellate court, under an exception to the one final judgment rule, had discretion to entertain the appeal of an order granting or denying a petition for writ of mandate. We disagree with any suggestion in Sierra Club that the appellate court has discretion to consider an appeal from a nonappealable order. An appellate court has no power to make appealable an order that is not appealable. (Velicescu v. Pauna (1991) 231 Cal. App.3d 1521, 1523 [282 Cal. Rptr. 832].)
In any event, the instant order is indeed appealable as a final judgment in a special proceeding under CEQA, which proceeding could have been filed separately from the remaining claims. The fact that the special proceeding was joined with other special proceedings or with a civil action does not destroy its character as a special proceeding. As a special proceeding, it is subject to certain rules of procedure which do not govern the other causes of action. (See, e.g., Pub. Resources Code, § 21167 et seq.) Thus, the combining of mandamus claims under CEQA with other types of claims does not destroy the appealability of the instant order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264165/ | 33 Cal.App.4th 1724 (1995)
39 Cal. Rptr.2d 906
BOARD OF SUPERVISORS OF SAN DIEGO COUNTY et al., Petitioners,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; MANUEL ARMSTRONG et al., Real Parties in Interest.
Docket No. D022160.
Court of Appeals of California, Fourth District, Division One.
April 14, 1995.
*1728 COUNSEL
Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, and Nathan C. Northup, Deputy County Counsel, for Petitioners.
No appearance for Respondent.
Jordan C. Budd, Alex Landon, Barwick, Rutherford & Scott, Charles Scott, Gregory E. Knoll and Anson B. Levitan for Real Parties in Interest.
OPINION
HUFFMAN, J.
In these proceedings, the members of the San Diego County Board of Supervisors seek a writ of review directing the respondent *1729 superior court to vacate its order issued August 29, 1994, adjudging the board members to be in contempt of court and imposing fines for willful disobedience of a consent decree arising out of a jail crowding lawsuit.[1] The trial court also held in contempt the Sheriff of San Diego County for the same violation of the consent decree and order: continuing violation of the court-ordered population cap at the Las Colinas Detention Facility for Women (LCDF).[2] The sheriff has not joined the Board as a petitioner for writ of review in this court.
The Board challenges the contempt order, claiming it represents an excess of jurisdiction by the trial court in (1) interpreting the terms of the underlying consent decree and (2) invading the Board's legislative discretion in the allocation of public funds. Procedural attacks on the findings and evidence presented at the hearing are also made.
Strictly construing the contempt order and proceedings (In re Liu (1969) 273 Cal. App.2d 135, 142 [78 Cal. Rptr. 85]), we conclude that the contempt adjudication against the Board must be annulled when the requirements of the consent decree (i.e., that the Board, on behalf of the County, and the sheriff "will not operate" certain detention facilities with prisoner populations in excess of the established operational capacities) are properly construed. Statutory law and the separation of powers doctrine require us to draw a distinction between the Board's obligation to provide reasonably adequate funding for jail operations and the sheriff's duty to operate the facilities within the terms of the consent decree. We vacate the order finding contempt and imposing fines upon the Board, while leaving in place the order as to the nonpetitioner sheriff.
THE RECORD
The 1988 consent decree represents a settlement of the 1987 Armstrong class action against the Board and the sheriff, brought by present and future *1730 inmates of five particular detention facilities, including the LCDF.[3] The consent decree established a cap for the inmate populations at the subject detention facilities, and gave the superior court jurisdiction to monitor the inmate population at the facilities subject to its terms and to resolve disputes between the parties. In pertinent part, the consent decree provides that after July 1, 1990, "the County and the Sheriff of San Diego County will not operate these detention facilities with prisoner populations in excess of the established facility-wide operational capacities as set forth" in the prior portion of the agreement. The LCDF cap was set at 478 prisoners. The decree further provides that the County and the sheriff will not operate these detention facilities with prisoners sleeping with their mattresses on the floor.
The consent decree specifically exempted future facilities from its provisions, and stated that under the decree, the Board and the sheriff undertook no obligation to build new facilities, expand existing facilities, or operate other facilities. The consent decree provides that its provisions shall be modified only by the written agreement of the parties and approval of the superior court, subject to a provision for meeting and conferring if the agreement caused undue hardship or if an ambiguous interpretation were possible. On December 1, 1988, the superior court adopted the consent decree as the order settling the Armstrong litigation.
In 1989 the Board caused to be constructed adjacent to LCDF an interim detention facility for male inmates, called the Las Colinas Men's Detention Facility (the men's facility), pending completion of a permanent detention facility. This court in City of Santee v. County of San Diego (1989) 214 Cal. App.3d 1438, 1450-1455 [263 Cal. Rptr. 340], reviewed the adequacy of the environmental impact report prepared regarding the men's facility and acknowledged that that facility was intended as an interim operation with an approximate seven-year existence. The men's facility consisted of modular housing units and, while it was operational, it had its own security staff, kitchen and dining equipment, medical unit, and visiting and transportation facilities.
In April 1993 the County opened a permanent facility, the George Bailey Detention Facility for Men, and closed the men's facility. Staff, equipment, and inmates were moved from the men's facility to the Bailey facility. This decision to consolidate some existing jail operations at the new detention facilities was made under fiscal pressure beginning in 1992 when the State *1731 of California unilaterally shifted property taxes away from the counties in order to meet state budget needs. The property tax shift was repeated the following year, and both years it created critical budget shortages for the County.
In June 1993 the inmate population at LCDF began consistently to exceed the consent decree population cap of 478. The plaintiffs in the Armstrong matter, the real parties in interest in these writ proceedings, applied in February 1994 for an order to show cause re contempt for failure to meet the population cap at the LCDF. The order to show cause was issued, opposition was filed, and evidentiary hearings occurred over the course of several weeks. Testimony was taken from Supervisor Bilbray, Sheriff Roache, and a number of other county financial and sheriff's officials, as well as expert witnesses for the Armstrong plaintiffs.
At the first evidentiary hearing, the Armstrong plaintiffs called Sheriff Roache as an adverse witness. (Evid. Code, § 776.) The court requested that the sheriff comment upon the statement in the Board's brief that "the Sheriff has all the funds needed to comply with the Consent Decree by transferring those resources already allocated to him in his budget. The Sheriff also has the authority via prior orders of this court to reduce the population at Las Colinas to its agreed cap." The sheriff responded:
"That's a the statement on its face is true, but it does not deal with the practical realities of providing public safety services to this entire county of San Diego. Not only am I responsible for, and the men and women of this organization responsible for operating a very large, stressed jail system, that is in facilities that are antiquated, have not been well-maintained, and are essentially crumbling around our feet at a population level that exceeds our staffing capability to handle, but I also have the responsibility to provide for other law enforcement services: Patrol, investigations, communications and other things.
"And while the ability exists for me to reduce public safety services directly available to the community, in terms of patrol or communications or homicide or vice or any other activities, and transfer those personnel and resources to jail operations in order to come up with sufficient personnel and money to expand our capacity, it will I can do so, but at the cost of jeopardizing the taxpayers' safety.
"And I have to balance a number of interests here; try to meet all those interests as best I can with the resources available.
"We have done that. We have trimmed administrative fat. We have scaled down validly needed, important law enforcement operations to the bare *1732 bones, and, in fact, below bare bones level in order to try to balance budgets and live within the allocations available.
"My personnel have done a Herculean task both in law enforcement services and jail, and they are being asked to do more and more and more with less and less and less. And it has got to the point where I cannot in good conscience transfer resources and personnel from other operational areas to the jail and jeopardize public safety in those other areas."
In a later stage of the hearing, the sheriff made a similar comment:
"It is frequently said, I recall, I believe, Supervisor Bilbray indicating, well, the Sheriff has the discretion, the authority to transfer personnel or transfer funds from other existing operations and augment the staffing and the resources available at Las Colinas.
"Technically, that is correct. Realistically, pragmatically, it is impossible to do. Because it would place me into a position where I would have to decide, knowingly, that I would move money and personnel and staff from other facilities that are already below minimum staffing that are just barely able to keep afloat and maintain some reasonable well, I'll I misstated it unreasonable level of supervision and security, move them to Las Colinas to solve the existing problem and further intensify the problem at some other facility.
"It's essentially, I find myself in a position where there is no fat somewhere else, there are no excess personnel or resources available in other locations at the department. And that if I move personnel or resources from some other operation, I've just created another disaster somewhere else." (Italics added.)
Throughout the evidentiary hearings, various witnesses were asked about the possibility of reopening the closed men's facility to house female inmates there to relieve the crowding at LCDF. For example, Supervisor Bilbray stated that in connection with such a proposed budget item, "there was discussion about the ability to function within the existing being able to realign existing resources to be able to address those situations." Supervisor Bilbray gave his opinion that the Board had given the sheriff sufficient money to operate jails within the cap, based on the budgetary process which showed there were a lot of expenditures being made now that could be redirected by the sheriff. He stated the sheriff had recently received the largest increase in his budget in the history of the County, and that resources within the sheriff's department could be mustered to address the jail aspects *1733 of the problem. When asked whether the Board had provided the sheriff with the amount of funds necessary to operate the jails, as well as perform the other functions required of him, Supervisor Bilbray responded: "I think he can do the job; though, it's extremely tough." He then stated that he did not think the sheriff had misspent any of the money, although he might have made different funding decisions.
David Janssen, chief administrative officer for the County, submitted a declaration stating that the sheriff's budget had been increased over the past several years, although general revenues to the County had decreased by 10.2 percent in the past two fiscal years. Thus, in terms of the County's discretionary revenues, the sheriff's share has increased from an average of 16.5 percent to 17 percent during the 1980's to over 21 percent in the 1993-1994 fiscal year. The declaration also gave details about the County's funding situation, including the shift of local property tax revenues to the state treasury to offset the state's budget problems, and the "Teeter Plan," a bill which provided one-time savings to counties that wished to implement an alternative method of apportionment of delinquent taxes, which would result in the County receiving one-time funds of $70.5 million as a result of its participation in the plan in the 1993-1994 fiscal year. The County's policy was to spend such one-time funds on one-time projects with long-term benefits, rather than ongoing expenses such as staffing allotments. Janssen estimated that the County would have a shortfall of $31.4 million for the fiscal year of 1994-1995, and would have to cut programs and services. With respect to the question of whether the Board had given the sheriff enough money to comply with the jail population caps, Janssen testified:
"To the extent that Las Colinas the operation of Las Colinas [LCDF] requires the expenditure of overtime moneys and I presume it does the County has paid for that, and they paid for it above and beyond the Sheriff's budget.
"The Sheriff's budget this year is approximately $157 million. It's been adjusted to 159. He's spending 160. Now, we obviously will have to decide at the appropriate time whether or not to bail the Sheriff out, if you will, this year.
"But within that $160 million, as I indicated before, there are three line items. One is salaries and wages, one is fixed assets, one is services and supplies. Now, literally within that authorization he can use those people any way he wants. So if he decided that he needed to do something at Las Colinas, he could do that.
*1734 "There are programs in his operation which are very important. There isn't anything, I think, that the Sheriff does that isn't important, but the SWAT operation and ASTREA [a helicopter patrol] are not required programs. And, historically, we have indicated to the Board that those programs are discretionary programs; and, seems to me that there is $3 to $5 million available in those programs.
"So, I guess the answer is while I'm not prepared to say that the Sheriff has money coming out of his ears because no department does he does have $160 million that he can spend with reasonable flexibility."
The Armstrong plaintiffs then presented testimony from two witnesses who had studied the county budget and who had suggestions of how expenditures could be differently made and how additional funds could possibly be raised. These witnesses were Steven Frates, director of a private taxpayers' organization, and Paul Rosen, a business consultant. The Board's attorney objected that these were surprise witnesses whose qualifications as experts were in question and whose assumptions in conducting their studies were suspect. The Board then called a rebuttal witness regarding the proposals that these expert witnesses had made (Mr. Lopez, the County's director of financial management).
Declarations presented during the contempt proceedings established that the population at LCDF had frequently exceeded the cap established by the consent decree from January 1993 through the conclusion of the hearing, with the number of prisoners over cap ranging from three to one hundred forty-nine. The LCDF population was expanding consistently by approximately 13 percent between 1991 and 1993.
After the contempt hearings began, the sheriff took several steps to reduce the prison population over cap at LCDF, including reinstating a work release program and shifting female inmates to a facility that had previously housed only males, after finding placements for the displaced male inmates. However, the sheriff had not taken steps to restrict misdemeanor bookings, nor implemented a pretrial electronic surveillance program, as allowed by prior court orders in the Armstrong matter.
At the close of testimony, the trial court received written argument by the Board and the Armstrong plaintiffs, and then issued an oral ruling in which the court found there was clear evidence that the defendants had an ability to comply with the consent decree, and had willfully disregarded that responsibility by electing to do otherwise. The court referred to evidence of funding that the County had received, such as Teeter funds, and discretionary expenditures by the sheriff, such as helicopter patrols and "SWAT" *1735 teams. The court concluded, "I think the sheriff has passed the buck to the County and the County has passed the buck to the sheriff and the buck stops here. It's got to be done." The court explained that it found inapplicable the provision of the consent decree that the party defendants were not obligated to build new facilities or modify facilities, and referred to the existing nearby men's facility as something other than a new facility, such as the consent decree expressly excluded. Suggesting that circumstances might allow modification of the consent decree, the court concluded, "I think under the circumstances the intent of the order would have been to require the County and the sheriff to operate a facility which would suffice to stay within the cap."
As a remedy, the court stated that fines would be imposed of $20 per day per prisoner who exceeded the cap until the population were down to the 478 persons set by the consent decree. The fines were to be paid separately by the Board out of the County budget and by the sheriff out of the sheriff's budget, into an escrow fund which the court said could "be used exclusively for whatever needs to be done to establish the staffing and to reduce the Las Colinas over-the-cap housing down to the cap level." The court requested that the Armstrong plaintiffs' counsel prepare the order.
The written order issued by the court did not include many of the details discussed at the oral hearing. The operative portion of the order finds the sheriff and the Board guilty of contempt for failing to obey the consent decree "requiring that the daily population at the [LCDF] not exceed 478 inmates." The court found defendants knew of the order, had the ability to comply with it at all times relevant to the inquiry, yet willfully disobeyed its express terms. The fines imposed were specified to be used "for the sole purpose of maintaining the court-ordered population cap at [LCDF]."
Two months after the order was issued, the Board petitioned this court for a writ of review of the order adjudging contempt. We issued the writ to establish the record in this proceeding and heard oral argument. Payment of fines was stayed pending further order of this court.[4]
DISCUSSION
In challenging the order of contempt, the Board assumes that the trial court expressly found that the Board's failure to fund a reopening of the men's facility constituted willful disobedience of the consent decree. As we *1736 will discuss, when the order and the contempt proceedings are strictly construed, no such express finding was made. The Board must be held to its obligations under the consent decree regarding operation of the jail facility only with regard to its proper role in that operation. Moreover, the Board persuasively argues that it did not willfully disobey the consent decree in carrying out its legislative functions in the manner that it did. To explain our conclusion that the contempt order against the Board must be annulled, we first set forth the applicable standard of review, and then discuss the scope of the jurisdiction that the trial court had to enforce the consent decree. This requires an examination of the record in light of the respective roles of the Board and the sheriff with regard to jail funding and operations, and the role of the courts in supervising institutional reform.
I
Standard of Review
(1) "The facts essential to jurisdiction for a contempt proceeding are `(1) the making of the order; (2) knowledge of the order; (3) ability of the respondent to render compliance; (4) willful disobedience of the order.' [Citations.]" (In re Liu, supra, 273 Cal. App.2d at pp. 140-141, fn. omitted.) "The record of the court must affirmatively show upon its face the facts upon which jurisdiction depends so that an appellate court can determine if a contempt has been committed. [Citation.]" (Id. at p. 146.)
(2) To review an adjudication of contempt, "`the sole question before us is one of jurisdiction of the trial court to render the judgment under review, and in such a case the review of the evidence is limited to determining whether there was any substantial evidence to sustain the jurisdiction of the trial court.' [Citations.] More recently we said that `the responsibility of the reviewing court is merely to ascretain [sic] whether there was sufficient evidence before the trial court to sustain the judgment and order. The power to weigh the evidence rests with the trial court.' [Citations.]" (In re Buckley (1973) 10 Cal.3d 237, 247 [110 Cal. Rptr. 121, 514 P.2d 1201, 68 A.L.R.3d 248].)
Thus, in writ proceedings to review an adjudication of contempt, "... the question whether the acts constituted a contempt is jurisdictional, and in the absence of evidence showing contempt, the order of commitment should be annulled. [Citations.]" (Arthur v. Superior Court (1965) 62 Cal.2d 404, 409 [42 Cal. Rptr. 441, 398 P.2d 777]; Code Civ. Proc., § 1074 [providing that in writ of review proceedings, the appellate court determines whether the inferior tribunal has regularly pursued its authority].) In conducting this *1737 review, the appellate court does not indulge in presumptions to sustain the regularity, validity, or sufficiency of the proceedings in support of the judgment, or the judgment itself, because of the quasi-criminal nature of contempt findings. (In re Liu, supra, 273 Cal. App.2d at p. 146.) The evidence need not be reviewed in favor of the accused, however, since the inquiry should be whether there was any substantial evidence before the trial court to sustain its jurisdiction. (City of Vernon v. Superior Court (1952) 38 Cal.2d 509, 517 [241 P.2d 243].)
(3) Punishment for contempt "can only rest upon clear, intentional violation of a specific, narrowly drawn order. Specificity is an essential prerequisite of a contempt citation. [Citations, fn. omitted.]" (Wilson v. Superior Court (1987) 194 Cal. App.3d 1259, 1273 [240 Cal. Rptr. 131].) It is not proper for a contempt citation to rest on an order "which incorporates by reference the entire history of a complicated lawsuit." (Id. at p. 1272.) The precise court orders as written are what may be enforced, not any amplification of those orders by history of the litigation or documents incorporated by reference. (Id. at p. 1273; Code Civ. Proc., §§ 1209, 1218.)
In light of these rules, the authority the Board cites that a consent decree may be interpreted de novo by an appellate court is interesting but not applicable in these contempt proceedings. (United States v. ITT Continental Baking Co. (1975) 420 U.S. 223, 238 [43 L.Ed.2d 148, 162, 95 S.Ct. 926]; Botefur v. City of Eagle Point, Or. (9th Cir.1993) 7 F.3d 152, 156.)[5] (4) Moreover, we are required to review the terms of the order that the trial court issued, not the reasons given for the order. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329 [48 P. 117]; also see In re Jennifer G. (1990) 221 Cal. App.3d 752, 756, fn. 1 [270 Cal. Rptr. 326] [written order controls over oral pronouncement].) Thus, although the court gave extensive explanations of its analysis of the evidence in the case throughout the evidentiary proceedings and while issuing its oral ruling, we nevertheless strictly construe the contempt ruling and proceedings to determine whether the actual terms of the consent decree, i.e., its provisions regarding the population cap, were willfully disobeyed by the Board.
*1738 II
Scope of Jurisdiction to Enforce Consent Decree
At the outset of this discussion it is appropriate to observe that the Board and the sheriff, by entering into the consent decree, necessarily gave up some discretion in performing their duties regarding jail operations, and have agreed that they may be bound by the commitment that the consent decree represents. (See Wilson v. Superior Court, supra, 194 Cal. App.3d at p. 1273.) It also should be taken as established that to comply with its statutory duties, as will be discussed below, the Board is required to provide a reasonable level of funding to enable the sheriff to carry out his duties. However, the plain language of the consent decree provides that the County, as represented by the Board, and the sheriff will not "operate" these detention facilities with prisoner populations in excess of the established facility-wide operational capacities, as defined in the agreement. What parts do the Board and the sheriff play in operating these detention facilities?
A
Respective Roles of Board and Sheriff
Penal Code section 4000 designates the sheriff as the keeper of the county jail. Penal Code section 4015, subdivision (a), deals with the duties of both the sheriff and the Board in this regard: "The sheriff shall receive all persons committed to jail by competent authority. The board of supervisors shall provide the sheriff with necessary food, clothing, and bedding, for those prisoners, which shall be of a quality and quantity at least equal to the minimum standards and requirements prescribed by the Board of Corrections for the feeding, clothing, and care of prisoners in all county, city and other local jails and detention facilities. Except as provided in Section 4016, the expenses thereof shall be paid out of the county treasury." (Italics added.)
Government Code section 26605 generally provides that the sheriff shall take charge of and keep the county jail and the prisoners in it, with specified exceptions not applicable here.
In addition to Penal Code section 4015, subdivision (a), quoted above, other statutes establish the duty of the board of supervisors to provide the sheriff with necessities for prisoners. Government Code section 29602 provides in pertinent part: "The expenses necessarily incurred in the support of persons charged with or convicted of a crime and committed to the county jail and the maintenance therein ... are county charges...." This section, *1739 Government Code section 29602, is found in the overall financial provisions for counties, Government Code section 29000 et seq., defining the respective functions of county boards of supervisors, administrative officers, and county auditors. (Gov. Code, § 29001.)
Other pertinent sections regarding the Board's duty to provide jail facilities are Government Code section 25351, subdivision (a), providing for a board of supervisors' discretionary power to construct, expand, or repair public buildings, including jails, such as are necessary to carry out the work of the county government. Government Code section 25382 provides that a board of supervisors "may" construct, maintain, and staff jails in counties other than its home county.
In Brandt v. Board of Supervisors (1978) 84 Cal. App.3d 598 [147 Cal. Rptr. 468], the question presented was whether the county board of supervisors could be held responsible for substandard conditions in the county jail, without a showing it had failed to appropriate sufficient funds or otherwise refused to pay the costs for jail operations. The trial court had issued a writ of mandate against both the sheriff and the board of supervisors, although only the board appealed the writ. (Brandt v. Board of Supervisors, supra, 84 Cal. App.3d at p. 600.) The Court of Appeal reversed the trial court's ruling which required the board to comply with certain administrative provisions concerning the number and training of correctional officers in the county jail, finding no substantial evidence supported the determination that the board had breached its legal duties to provide adequate funding for jail operations. (Id. at pp. 602-603.) The court made the following observation: "Except in rare instances, the board of supervisors has no direct authority over the jail, and even where direct authority is given, its exercise is made discretionary by statute. The only clear and present duty enjoined by law upon a board of supervisors with regard to a county jail is to provide the sheriff with food, clothing, and bedding for prisoners (Pen. Code, § 4015) and to pay as a county charge other expenses incurred in the keeping of prisoners (Gov. Code, § 29602)." (Brandt v. Board of Supervisors, supra, 84 Cal. App.3d at p. 601-602, fn. omitted.)
In County of Butte v. Superior Court (1985) 176 Cal. App.3d 693, 698 [222 Cal. Rptr. 429], the court discussed the separation of powers principle with reference to a dispute between a county sheriff and board of supervisors over the board's reduction of funding to the sheriff's budget. The court found that the board had acted within the scope of its constitutional role by reducing the size of the sheriff's staff, in response to county budgetary limitations. The court explained its reasoning as follows: "The chaos that would result if each *1740 agency of government were allowed to dictate to the legislative body the amount of money that should be appropriated to that agency, or its staffing and salary levels, is readily apparent. The budgetary process entails a complex balancing of public needs in many and varied areas with the finite financial resources available for distribution among those demands. It involves interdependent political, social and economic judgments which cannot be left to individual officers acting in isolation; rather, it is, and indeed must be, the responsibility of the legislative body to weigh those needs and set priorities for the utilization of the limited revenues available." (County of Butte v. Superior Court, supra, 176 Cal. App.3d at p. 699.)
(5) "In sum, the distinction to be drawn is between the power of a board of supervisors to appropriate county funds and the power of a sheriff ... to manage the expenditure of the funds so appropriated." (77 Ops.Cal.Atty.Gen. 82, 88 (1994).)
B
Role of the Court in Enforcing the Consent Decree
Because the questions presented regarding the proper roles of the Board and the sheriff arise in the contempt context, it is necessary to examine the authority that has been developed regarding the appropriate judicial role in using mandatory remedies in supervising jail crowding litigation. (6) A first principle in this general area was established by the Supreme Court in Myers v. English (1858) 9 Cal. 341, 349: The judicial system does not interfere with the proper exercise of legislative discretion. In Myers, the Supreme Court denied a writ of mandate to compel the state treasurer to make certain salary payments, where the Legislature had not appropriated moneys to fund such payments. The Supreme Court stated: "It is within the legitimate power of the judiciary, to declare the action of the Legislature unconstitutional, where that action exceeds the limits of the supreme law; but the Courts have no means, and no power, to avoid the effects of non-action. The Legislature being the creative element in the system, its action cannot be quickened by the other departments. Therefore, when the Legislature fails to make an appropriation, we cannot remedy that evil. It is a discretion specially confided by the Constitution to the body possessing the power of taxation. There may arise exigencies, in the progress of human affairs, when the first moneys in the treasury would be required for more pressing emergencies, and when it would be absolutely necessary to delay the ordinary appropriations for salaries. We must trust to the good faith and integrity of all the departments. Power must be placed somewhere, and *1741 confidence reposed in some one." (Myers v. English, supra, 9 Cal. at p. 349, original italics, disapproved in other part in Mandel v. Myers (1981) 29 Cal.3d 531, 551, fn. 9 [174 Cal. Rptr. 841, 629 P.2d 935].)
In Wilson v. Superior Court, supra, 194 Cal. App.3d at page 1268, the court referred to the same subject matter: "It is well established as a matter of constitutional doctrine, basic to our form of government, that the judicial branch cannot directly and prospectively require a specific legislative act." The court in Wilson then drew a parallel between the separation of powers doctrine and the principle of federalism on which federal courts have relied in creating a limited role for federal courts in managing prison overcrowding litigation. (Wilson, supra, 194 Cal. App.3d at pp. 1268-1269.) (7) Thus, the court in Wilson stated that "... the judicial role in monitoring institutional reform is extremely limited and is restricted to determining whether specific constitutional violations exist and fashioning narrow remedies to correct such violations. [Citations.]" (Ibid.)
Some federal cases, however, have not adhered closely to the approach of judicial restraint in prison reform litigation, and have shown little sympathy for governmental entities' claims that political difficulties impede timely and complete compliance with population caps in jail facilities. For example, in Twelve John Does v. District of Columbia (1988) 861 F.2d 295 [274 App.D.C. 62], the court of appeals upheld for the most part a number of district court orders upholding and enforcing a population cap established by a consent decree at a particular jail facility. Responding to the District of Columbia's arguments that political difficulties amounted to a lack of power on the municipality's part to comply with such court orders, the court stated, "Counsel would have this court accept some kind of schism between the District government and the District's prison system as if there were two warring sovereignties to be recognized. Patently, the District government is viewed as an entity in this court, and its inter se problems cannot excuse the District's legal commitments." (Id. at pp. 299-300.) Similarly, in Badgley v. Santacroce (2d Cir.1986) 800 F.2d 33, the court found that the county defendants, i.e., the sheriff, prison warden, and corrections officials of Nassau County in New York, were not justified in claiming it was impossible for them to comply with court orders due to political difficulties. (Id. at p. 37; also see Palmigiano v. DiPrete (D.R.I. 1989) 710 F. Supp. 875, 882-883 [where the governor and the director of the department of corrections were the defendants, rather than any legislative body].)
While this line of cases showing no sympathy for claims of impossibility of compliance with inmate population reduction orders, due to political *1742 difficulties among the branches of government, has great intuitive appeal, we do not believe it should control here. These cases do not discuss in any detail separation of powers issues such as are squarely presented in the case before us. Moreover, we have no indication that the orders in those cases were framed in the same manner as the consent decree in this case, requiring jail operations at a particular level by agreement of the legislative body and the sheriff or executive branch. We therefore do not find governing these irate comments of federal judges, dismissing political difficulties as an excuse for noncompliance with orders, as they do not address the question actually presented here. More pertinent in the contempt context, we, believe, are the comments in Wilson v. Superior Court, supra, 194 Cal. App.3d at page 1268-1269, about the ideal limitations on the judicial role in monitoring institutional reform. (See p. 1741, ante.) (8) Also, as explained in Uhler v. Superior Court, supra, 117 Cal. App.2d at page 156: "While a court has inherent power to punish for contempt, this is a drastic remedy which should be used only when necessary to maintain law and order. It should rarely, if ever, be used for the purpose of settling differences of opinion between conscientious officials with respect to close questions of civil law."
Guided by all this authority, we turn to an examination of the record in this case to determine whether the Board had the ability to comply with the precise terms of the consent decree, and willfully disobeyed those terms, in such a manner as to constitute contempt.
C
Analysis of the Record
At the close of testimony, the trial court perceptively noted that it is most difficult to evaluate this testimony "regarding the ability to have the funds available to do something in this case, when you listen to the two sides of the story and to really know where they are, that there are really funds there.... [¶] I find that a really tough, tough area to analyze. It's pretty easy to listen to the Board's analysis that the Sheriff has enough to get by on, and the Sheriff's analysis that he doesn't." The court then requested closing argument on the issue of the availability of funds to the county treasury, and whether there were political decisions involved in the allocation of such funds.
The Board's witnesses, Supervisor Bilbray and Chief Administrative Officer Janssen, and its other witnesses unanimously testified that although the sheriff had a difficult job to do, he had been provided with sufficient funds by the Board to carry out all his responsibilities. The sheriff's testimony *1743 essentially did not dispute this point, but sought to explain it: "[T]he statement on its face is true, but it does not deal with the practical realities of providing public safety services to this entire county of San Diego," said the sheriff at the hearing. Similarly, although the sheriff agreed that he has the discretion and the authority to transfer personnel and funds from other existing operations to the LCDF facility, he again explained: "Technically, that is correct. Realistically, pragmatically, it is impossible to do. Because it would place me into a position where I would have to decide, knowingly, that I would move money and personnel and staff from other facilities...."
(9) As a threshold determination, we do not find substantial evidence supports the trial court's finding that the Board willfully disobeyed the consent decree by failing to provide reasonable or adequate resources to enable the sheriff to do his job, however "technically" or "on its face" the evidence showed such adequacy of funding. This conclusion, we believe, is dictated by the authority setting forth the scope of the Board's authority with regard to jail operations: To provide the sheriff with food, clothing, and bedding for the prisoners and to pay other related expenses. (Pen. Code, § 4015, subd. (a); Gov. Code, § 29602.) The Board has not been given direct authority over jail operations, such as day-to-day compliance with a population cap. (See Brandt v. Board of Supervisors, supra, 84 Cal. App.3d at p. 601.) The evidence presented showed that the sheriff had a number of options which could be used to keep the LCDF population down below the cap level, and had used several of those options after the contempt proceedings were commenced: (a) work release and (b) transfer of females to another facility. Other available options which had not been used as of the time of the proceedings were (c) refusing to book any misdemeanant arrestees when the population at LCDF was over cap and (d) expanding the electronic surveillance program to accommodate pretrial detainees. The use of these options is within the sheriff's discretion, not the Board's.
In Ruiz v. Estelle (5th Cir.1982) 679 F.2d 1115, 1148, a prison crowding case out of Texas, the federal court found it a desirable approach to undertake interim and conservative measures to reduce crowding, and if those measures did not work, to use additional ones. The court explained, "This `wait and see' approach ensures that the intrusion into state processes will be no greater than that required to achieve compliance with the Constitution." (Ibid.) Here, too, in light of the consent decree's focus upon jail operations, the Board's duties under the consent decree must be narrowly construed to be consistent with the statutory and case law limitations upon the Board's proper role to fund and provide for the prison system, with equal *1744 attention given to the sheriff's operational alternatives in administering that system. As explained in Wilson v. Superior Court, supra, 194 Cal. App.3d at pages 1272-1273, a contempt citation may not be based on an order "which incorporates by reference the entire history of a complicated lawsuit." (Id. at p. 1272.) Instead, the court orders as written are what may be enforced. (Id. at p. 1273.)
Therefore, as we have pointed out above, the contempt order itself does not require the Board to reopen a closed facility or to take other specific action to fund particular facilities in any particular manner, despite the discussion of such options at the hearings.[6] This was in accord with applicable law concerning the separation of powers principle and the legislative nature of funding decisions. (County of Butte v. Superior Court, supra, 176 Cal. App.3d at pp. 698-699; Myers v. English, supra, 9 Cal. at p. 349.) In accordance with this principle, the testimony presented by the Armstrong plaintiffs concerning suggested funding alternatives and potential other budgetary decisions than those actually made was not entitled to any weight, because such testimony was not addressed to any validly presented element of the alleged contempt, i.e., ability to comply with the decree or willful disobedience of it. The trial court did not, therefore, have substantial evidence to find the county had an ability to comply with the consent decree by carrying out more than its mandated duties under Penal Code section 4015, subdivision (a), and Government Code section 29602.
Moreover, the uncontroverted evidence showed that the sheriff was funded at least at minimally adequate levels to allow him to maintain the detention facility in question, as he had agreed to do in the consent decree. The amount of funding given the sheriff and its relative percentage to available county funds had increased during the relevant time period in this case. Given the acknowledged levels of funding and the authority of the sheriff to operate the jails and to flexibly utilize the funds provided him by the Board, we cannot say the evidence shows willful failure on the part of the Board to adequately fund the detention facility which is the subject of the consent decree. On a different record, however, where a board of supervisors has clearly failed to provide enough funding to enable the sheriff to carry out his duties, a contempt finding might be appropriate. (See Wilson v. Superior Court, supra, 194 Cal. App.3d at pp. 1273-1274.)
*1745 D
Remaining Issues
Because of our resolution of these issues, we need not decide the Board's constitutional challenge to the statutory defense or immunity provided against contempt proceedings to a public entity, in the event of its proven financial inability to comply with an order. (Code Civ. Proc., § 128, subd. (f).) Since the sheriff is not a petitioner in these review proceedings, we do not decide this statutory interpretation matter as to that official either. Nor is it necessary for us to address the Board's additional argument that it was deprived of due process when the court allowed two surprise expert witnesses to testify without sufficient notice to the Board.
Finally, in its petition, the Board has requested an order that fines it previously paid be immediately refunded. Such a remedy is proper since we annul the contempt order as against the Board. The remainder of the Board's objections to the fines imposed upon it, based on separation of powers concerns, have become moot.
(10) The Board also, however, has raised the issue of the propriety of the fines imposed upon the nonpetitioner sheriff, contending that those fines payable out of the sheriff's budget ultimately penalize the County itself and thus constitute an intrusion on legislative discretion in allocation of funds. We are not sympathetic to that argument for several reasons: first, we doubt that the Board has standing to object to fines imposed upon the sheriff, since the sheriff was at all relevant times separately represented by counsel and has not joined in this petition for writ of review. Secondly, the sheriff is bound by the consent decree with regard to jail operations, an area clearly within his purview. Third, although Sheriff Roache lost the November 1994 election, the sheriff is actually named in the contempt order only in his official capacity, and it is not disputed that the Armstrong and Hudler orders apply to the sheriff and his department without regard to the individual who occupies the office of sheriff at any particular time. (See Ross v. Superior Court (1977) 19 Cal.3d 899, 905-909 [141 Cal. Rptr. 133, 569 P.2d 727] [a board of supervisors was bound by an injunctive order to which it was not a party since it was an agent of a party that was bound by the order].) The fines imposed up until the time we issued a stay remain enforceable against the sheriff's department. However, to the extent that any future fines may be imposed upon the department during Sheriff Kolender's tenure, it will be necessary for the Armstrong plaintiffs to obtain jurisdiction over Kolender by serving him in the Armstrong matter. (Ex parte Tinkum (1880) 54 Cal. 201, 203-204.)
*1746 DISPOSITION
The petition for writ of review is granted as to the petitioner board of supervisors and the contempt order is vacated as to the Board. The superior court is directed to issue an order that the fines paid to date be returned to the Board. This disposition shall not affect the order of contempt with regard to the nonpetitioner sheriff. The stay is vacated upon this opinion becoming final. (Cal. Rules of Court, rule 24(a).) Each party shall bear its own costs.
Benke, Acting P.J., and Nares, J., concurred.
A petition for a rehearing was denied May 5, 1995.
NOTES
[1] The individual members of the board of supervisors and petitioners herein are Brian P. Bilbray, Dianne Jacob, Pam Slater, Leon L. Williams, and John MacDonald (collectively, the Board). Since the November 1994 elections, the membership of the Board has changed; our review is confined to the time period before the order was issued.
The jail crowding lawsuit which gave rise to the consent decree which the trial court sought to enforce in these contempt proceedings was Armstrong v. Board of Supervisors (Super. Ct. San Diego County, 1987, No. 588349) (Armstrong), consolidated with Hudler v. Duffy (Super. Ct. San Diego County, 1977, No. 404148) (Hudler).
Where appropriate, we shall refer in this opinion to the County of San Diego as the County.
[2] At the time the order of contempt was issued, Jim Roache was the Sheriff of San Diego County. William Kolender became Roache's successor in office after the November 1994 election, and is not yet a party to this action. We review the contempt proceedings with reference to the participants during the time period leading up to the August 1994 order.
[3] The other facilities covered by the consent decree were the El Cajon, South Bay, Vista, and Descanso detention facilities. In the decree, the Armstrong action was consolidated with the Hudler action, which dealt with the central jail. (See fn. 1, ante.)
[4] Fines had been paid by the Board on some 10 occasions after the contempt order was issued.
[5] Federal cases cited refer to an abuse of discretion standard of review of contempt findings, particularly in the jail crowding context. (See, e.g., Stone v. City and County of San Francisco (9th Cir.1992) 968 F.2d 850, 856].) Although the California cases occasionally refer to an abuse of discretion standard with regard to contempt proceedings (see, e.g., Uhler v. Superior Court (1953) 117 Cal. App.2d 147, 156 [255 P.2d 29]), the California standard is normally stated as a substantial evidence review. (In re Buckley, supra, 10 Cal.3d at p. 247.)
[6] Although the trial court referred at the hearing to modification of the consent decree by change of circumstances, that reasoning does not appear in the written order. We review the order that the trial court issued, not the reasons given for the order. (Davey v. Southern Pacific Co., supra, 116 Cal. at p. 329.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338388/ | 105 S.E.2d 437 (1958)
249 N.C. 145
STATE
v.
Warren Harding NEWTON.
No. 365.
Supreme Court of North Carolina.
November 5, 1958.
*438 Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. T. W. Bruton, for the State.
William T. Watkins, Royster & Royster, Oxford, for defendant.
DENNY, Justice.
Among the defendant's 26 assignments of error numbers 20 and 25 involve instructions to the jury. Assignment of error number 20 is directed to the following portion of the court's charge: "There could be no other explanation of his conduct there except the assault was made with a deadly weapon with the intent to kill, and that it constituted within the purview of the law and the statute, serious injury."
While the above language was used while the court was undertaking to state the State's contentions, such statement is a separate and distinct sentence and is not preceded by the words, "The State further says and contends," or similar language, and while it may have been the Court's intention to make this statement to the jury as a part of the State's contentions, it was not so stated.
Assignment of error number 25 challenges the instruction given to the jury under the following circumstances. The sheriff informed the court that the jury wanted to ask a question. When the jury returned to the courtroom, the court inquired whether or not it had agreed upon a verdict. The foreman informed the court that it had not. The court then said, "Is there some information that you desire?" The foreman of the jury replied, "We understood that you wanted this in writing." The court then said, "No, not necessarily in writing, but I want you to specify your verdict. I instructed you you could return a verdict of guilty as charged in the bill of indictment, which charge was assault with a deadly weapon with intent to kill inflicting serious injury not resulting in death. Otherwise, specify it. Do you understand?"
We think the foregoing instructions embraced in the assignments of error numbered 20 and 25 are susceptible of being interpreted by the jury as an expression or intimation on the part of the court to the effect that in its opinion the jury should return a verdict of guilty as charged.
In State v. Simpson, 233 N.C. 438, 64 S.E.2d 568, 571, Stacy, C. J., in speaking for the Court, said: "It can make no difference in what way or manner or when the opinion of the judge is conveyed to the jury, whether directly or indirectly, by comment on the testimony of a witness, by arraying the evidence unequally in the charge, by imbalancing the contentions of the parties, by the choice of language in stating the contentions, or by the general tone and tenor of the trial. The statute forbids any intimation of his opinion in any form whatever, it being the intent of the law to insure to each and every litigant a fair and impartial trial before the jury." State v. Love, 229 N.C. 99, 47 S.E.2d 712; State v. Benton, 226 N.C. 745, 40 S.E.2d 617; State v. DeGraffenreid, 223 N.C. 461, 27 S.E.2d 130; State v. Maxwell, 215 N.C, 32, 1 S.E.2d 125; State v. Rhinehart, 209 N.C. 150, 183 S.E. 388.
*439 While there are other exceptions and assignments of error which are not without merit, we deem it unnecessary to discuss them since, in our opinion, the defendant is entitled to a new trial, and it is so ordered.
It must be conceded that the defendant's conduct toward the prosecuting witness was unwarranted, indefensible and vicious. However, he is entitled to a trial free from prejudicial error.
New trial.
PARKER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338389/ | 214 Ga. 422 (1958)
105 S.E.2d 229
LEDGER-ENQUIRER COMPANY
v.
BROWN.
LEDGER-ENQUIRER COMPANY
v.
GRIMES.
20145, 20146.
Supreme Court of Georgia.
Argued September 8, 1958.
Decided October 10, 1958.
Foley, Chappell, Kelly & Champion, for plaintiff in error.
Fort & Williams, James H. Fort, Al Williams, contra.
ALMAND, Justice.
Carlton Brown and Al Grimes field separate suits against the Ledger-Enquirer Company, publisher of a newspaper, wherein each sought the recovery of damages growing out of the publication in its newspaper of the following item:
"TWO MEN BOUND TO HIGHER COURT IN AUTO THEFT
"Lumpkin, Ga. Dec. 5 Carlton Brown, a Lumpkin lawyer, and Al Grimes, employed at the Singer Co., were injured when the car in which they were riding overturned near the Stewart-Quitman County line on State Highway 27 Sunday.
"Both men were taken to the Barbour County Hospital in Eufaula. Brown suffered a deep jagged cut on his right leg above the knee, 3 broken ribs, collar bone broken and other cuts and bruises. Grimes had his right leg broken."
*423 It was alleged that the words in the headline of the article referred to the plaintiffs and implied and conveyed by direct charges and insinuation, and was so understood by the readers of the newspaper, that the plaintiffs were "falsely charged" with stealing an automobile, a crime constituting a felony. The defendant filed its general demurrer in both cases, one of the grounds of the demurrer being that the allegations of the petitions affirmatively showed that the writing complained of was not libelous of the plaintiffs. The demurrers were sustained and the suits dismissed. These orders on review by the Court of Appeals were reversed. Brown v. Ledger-Enquirer Co., 97 Ga. App. 595 (103 S.E.2d 616). That court, in considering and deciding the two cases in one opinion, held that, where a newspaper headline charges two unnamed persons with a crime and the body of the publication relates to an event involving two named persons, a jury question is presented as to whether the persons named in the body of the article were libelously charged with the crime mentioned in the headline. We granted a writ of certiorari.
The only question presented for our consideration is whether the two unnamed persons charged with a crime in the headline may be identified as the two plaintiffs named in the innocuous article that follows, so as to impute the commission of a crime to them. The headline is a part of the article and must be construed together with it in deciding whether the article refers to or identifies the two persons against whom the libel is directed. Witham v. Atlanta Journal, 124 Ga. 688(1) (53 S.E. 105, 4 L.R.A. (NS) 977); Wiley v. Oklahoma Press Publishing Co., 106 Okla. 52 (233 P. 224, 40 A.L.R. 573). Where the plaintiff's name was not contained in the headline, the article and the headline must be construed together as one document to determine whether the newspaper article was libelous to the plaintiff. Schoenfield v. Journal Co., 204 Wis. 132 (235 N.W. 442). In Constitution Publishing Co. v. Leathers, 48 Ga. App. 429, 431 (172 S.E. 923), the court quoted with approvel from Odgers' text on "Libel and Slander," p. 140, as follows: "The defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff. If the words used really *424 contain no reflection on any particular individual, no averment or innuendo can make them defamatory. An innuendo can not make the person certain which was uncertain before." Where the words of the alleged libelous matter are so vague and uncertain that they could not have been intended to refer to any particular person, or the published words are incapable of any other construction other than they are not defamatory of the plaintiff, the petition is subject to general demurrer. See Garland v. State, 211 Ga. 44 (84 S.E.2d 9). In Commercial Publishing Co. v. Smith, 149 Fed. 704, it was said: "A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. So the whole item, including display lines, should be read and construed together, and its meaning and signification thus determined. When thus read, if its meaning is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether that signification is defamatory or not. If upon the other hand, it is capable of two meanings, one of which would be libelous and actionable and the other not, it is for the jury to say, under all the circumstances surrounding its publication, including extraneous facts admissible in evidence, which of the two meanings would be attributed to it by those to whom it is addressed or by whom it may be read." The above quotation was quoted with approval in Constitution Publishing Co. v. Andrews, 50 Ga. App. 116 (177 S.E. 258), where, in an action for damages by reason of an alleged newspaper libel, it was held that, if the meaning of the published article is so unambiguous as to reasonably bear but one interpretation, it is for the court to say whether that signification is defamatory or not. "Where there is no connection between the alleged libelous publication and the plaintiff, either directly or by way of colloquium, it is not error for the trial judge to decide the case as a matter of law on demurrer." Wills v. Upshaw, 95 Ga. App. 241, 242 (97 S.E.2d 520). See Restatement of the Law of Torts, p. 150, § 564 (b) and p. 304, § 614. Where there is no ambiguity in the words used in the article, the question whether the plaintiff was the person defamed is one of law. Hubbard v. Allyn, 200 Mass. 166 (86 N.E. 356).
*425 The petitions in these cases contain no allegations by way of colloquium or innuendo. Whether the publication is libelous of and identifies the plaintiffs as the persons libeled, depends upon the construction of the publication unaided by the allegations that the published words referred to them. Witham v. Atlanta Journal, 124 Ga. 688, supra. The headline of the published article informs the reader that two unnamed men have been bound to a "higher court in auto theft." The body of the article relates to an automobile accident in which the plaintiffs "were injured when the car in which they were riding overturned near the Stewart-Quitman county line on State Highway 27 Sunday," and states that they were taken to a hospital in Eufaula, Alabama, and gives a description of their injuries. The article relates to an event entirely different and is in no way connected with the headlines. Neither the headlines nor the body is ambiguous. "It is not enough, however, that the defamatory matter be actually understood as intended to refer to the plaintiff; such interpretation must be reasonable in the light of all the circumstances." Restatement of the Law of Torts, p. 150, § 564 (b). To illustrate how unconnected the event related in the headlines is to the body of the article, suppose a newspaper publishes a news article with the headline, "Two Men Injured In Auto Accident Carried To Hospital," and the article is an account of the arrest of A and B for the theft of an automobile and their being bound over to a higher court. It is obvious that the body of the article does not identify A and B as being the two unnamed men in the headline who were injured in the automobile accident. We agree with the conclusion drawn by the trial judge, in his order sustaining the demurrers and dismissing the petitions, when he said: "The words alleged to be libelous appear only in the headline of the article. The headline does not identify the plaintiff in any manner whatever. The article itself must be read in order to identify the plaintiff, and upon reading the article it is obvious that the headline and the remainder of the article have no relationship one with the other. In its entirety, the article conveyed to the mind of the reader the fact that the auto theft referred to in the headline was not imputed to the plaintiff, and . . . this is the `only construction by the reader, of which the article was reasonably susceptible.'"
*426 The Court of Appeals erred in reversing the orders of the trial court in these two cases, and its judgment must be and is
Reversed. All the Justices concur, except Candler, J., who dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338409/ | 98 Ga. App. 142 (1958)
105 S.E.2d 390
LONG TOBACCO HARVESTING COMPANY, INC.
v.
BRANNEN et al.
37228.
Court of Appeals of Georgia.
Decided September 16, 1958.
*148 Cohen Anderson, for plaintiff in error.
Ralph V. Bacon, Wm. J. Neville, Neville & Neville, contra.
QUILLIAN, Judge.
1. The exception is to a judgment of the trial judge overruling a general demurrer to the affidavit of illegality in its final form. It follows that, if that pleading set out any valid defense to the foreclosure of the retention-of-title contracts, the judgment must be affirmed.
The affidavit of illegality undertook to present a variety of defenses. The first was that the papers foreclosed were not retention-of-title contracts but were consignment contracts. The fact that the papers possess many features of consignment contracts did not transform them into agreements of that nature, since they evinced absolute promise to pay the purchase price of the articles they described. McKenzie v. Roper Wholesale Grocery Co., 9 Ga. App. 185 (70 S.E. 981).
*149 2. The affidavit of illegality alleged that prior to the execution of retention-of-title contracts the plaintiff and the defendants agreed that the articles described in the instruments were to be delivered to the defendants on a consignment basis, and that the contracts did not represent the true agreement of the parties. The allegation does not constitute a defense.
The affidavit of illegality sought to set up a similar defense, that it was not the intention of the plaintiff and the defendants that the retention-of-title contracts commit the defendants to absolute promise to pay for the articles described in them, but were intended only as receipts for the articles. Code § 38-501; Indiana Truck Corp. v. Glock, 46 Ga. App. 519 (168 S.E. 124); Hill v. Sterchi Bros. Stores, 50 Ga. App. 193 (2) (177 S.E. 353). That which cannot be proved cannot be pleaded.
It is not permissible to plead that a valid written promise to pay is varied or contradicted by parol agreements contemporaneous or prior to the execution of the instrument evincing such promise to pay. Red Line Products Co. v. J. M. High Co., 57 Ga. App. 304, 315 (195 S.E. 296). Hence the defense pleaded was not a valid one.
3. The affidavit of illegality undertook to interpose the defense that the plaintiff and defendants had by a course of dealings substituted for the original contract contained in the retention of contract of assignment by the terms of which the articles were not sold to the defendants, but were merely delivered to them on consignment basis, that is, the purchase price was to be paid by the defendants only in the event the defendants sold the articles to third parties. In Wimberly v. Tanner, 34 Ga. App. 313 (1) (129 S.E. 306) it is held: "The rule that contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument (Civil Code of 1910, § 5788) is not violated by proof of a new and distinct subsequent agreement in the nature of a novation. Civil Code (1910), § 5794. But the novation, to be valid, must be supported by some new consideration. Civil Code (1910) § 4226; Collier Estate v. Murray, 145 Ga. 851 (1) (90 S.E. 52)."
There is no question that through a course of dealing an entirely new verbal contract may be substituted for a valid written *150 contract, and mutual acquiescence in such course of dealing may constitute sufficient consideration for the new contract. Hill v. Sterchi Bros. Stores, 50 Ga. App. 193, supra.
The alleged substitution did not extend to a change of all of the provisions of the agreement contained in the retention-of-title contract, but only to the clause of the contract that committed the defendants to an absolute promise to pay the purchase price of the articles described in the retention-of-title contracts. Analysis of the retention-of-title contracts reveals that they contained both absolute and conditional promises to pay the purchase price of the articles, which were not, in the form the instruments were drawn, at all inconsistent. The change in the obligations of the retention-of-title contracts allegedly made by the course of dealings in reference to handling of the articles simply served to relieve the defendants of the absolute promise to pay for the described articles, and allow the conditional promise to pay for the same of force.
This alleged change, if in fact made by the dealings of the parties, had the effect to transform the agreement from conditional-sale contracts to contracts of consignment.
In Morrison v. Roberts, 195 Ga. 45, 46 (23 S.E.2d 164) the rule is stated: "While it is true, as recognized by the Code, § 20-116, that where parties, in the course of the performance of a contract, depart from its terms and pay or receive money under such departure, a modification by way of a quasi new agreement will be implied, still, in order for this rule to have application, it is necessary that the circumstances be such as will in law imply a mutual new agreement, so that the modification, when taken in connection with the original contract, will provide a new and distinct agreement complete in its terms. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (4), 703 (58 S.E. 200); Southern Feed Stores v. Sanders, 193 Ga. 884 (3), 887 (20 S.E. 413); Kennesaw Guano Co. v. Miles, 132 Ga. 763, 770 (64 S.E. 1087), and cit.; Ball v. Foundation Co., 25 Ga. App. 126 (103 S.E. 422); Jones v. Lawman, 56 Ga. App. 764, 771 (194 S.E. 416)." Many supporting authorities are cited in the Morrison case.
The retention-of-title contracts in this case, with the provision providing absolute promises deleted contain a definite and complete *151 contract of consignment. Hence, since the only alleged change made by the dealings of the parties was to delete from the contracts the clause committing the defendants to absolute promise to pay, the affidavit of illegality seems to meet the rule that where it is alleged that there has been a novation, either expressed or arising out of the dealings of the parties, the pleading must show that the agreement of the parties altered by the novation expressed a distinct and complete new contract.
4. The affidavit of illegality set up a valid defense, the defense that part of the retention-of-title contracts sought to be foreclosed were signed by an employee of the defendants who was not authorized to execute the instruments on behalf of the defendants. This defense was pleaded imperfectly, but under the ruling in East Point Lumber Co. v. Chandler, 46 Ga. App. 361 (1), (167 S.E. 787) was sufficient to withstand a general demurrer.
Judgment affirmed. Felton, C. J., and Nichols, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338426/ | 105 S.E.2d 615 (1958)
249 N.C. 187
STATE
v.
Brooks WHEELER, Walter English, allas Tony Geno, and Myrtle Oliver, allas Thelma Oliver.
No. 146.
Supreme Court of North Carolina.
November 19, 1958.
*619 Malcolm B. Seawell, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.
John W. Hinsdale, Raleigh, for petitioners, appellants.
A. Jeffery Bivins, Newport News, Va., for Myrtle Oliver, appellant.
HIGGINS, Justice.
By this proceeding the petitioners seek a new trial under the North Carolina Post *620 Conviction Hearing Act, claiming that during imprisonment and trial their fundamental rights under Article I, Sections 11 and 17, Constitution of North Carolina, and under the Due Process Clause of the 14th Amendment to the Constitution of the United States had been denied them.
The Post Conviction Hearing Act is not a substitute for appeal. It cannot be used to raise the question whether errors were committed in the course of the trial. The inquiry is limited to a determination whether the petitioners were denied the right to be represented by counsel, to have witnesses, and a fair opportunity to prepare and to present their defense. Miller v. State, 237 N.C. 29, 74 S.E.2d 513; 16A C.J.S. Constitutional Law § 579, p. 617, et seq., and cases cited; Am.Jur. 12, Sec. 573, p. 267. The question whether these rights have been denied, is one of law. State v. Hackney, 240 N.C. 230, 81 S.E.2d 778; State v. Gibson, 229 N.C. 497, 50 S.E.2d 520; State v. Farrell, 223 N.C. 321, 26 S.E.2d 322; State v. Whitfield, 206 N.C. 696, 175 S.E. 93; State v. Garner, 203 N.C. 361,166 S.E. 180.
While this Court is bound by the findings of fact made by the court below if supported by evidence, it is not bound by that court's conclusions of law based on the facts found. Miller v. State, supra.
The petitioners were arrested together the day following the robbery and after arrest were deprived of all money and other personal effects. According to the court's finding, "being unable to give bond (petitioners) were imprisoned from the time of their arrest until their trial. They were kept in separate jails and not allowed to communicate with one another. They were moved from jail to jail several times between the date of the arrest and the date of their trial."
In Paragraph 9 the petitioner English alleges he was denied the right to phone or write his sister in Washington, D. C. "The jailer said he had orders from the sheriff not to permit your petitioner to communicate with anyone." The solicitor "neither admitted nor denied." The jailer and the sheriff did not answer. The only evidence in the record that either petitioner actually got a message beyond the confines of the jail was that Oliver was permitted to talk to her sister by phone and the jailer admitted he did not know whether that was before or after the trial. The attempt by Wheeler to get a message to his brother in Wake Forest by SBI Agent Thomas was thwarted by the failure of Thomas to deliver the message. The attempt of English to identify the hatter produced nothing except two unfulfilled promises made by SBI Agent Thomas to look for him.
So the court's conclusion, "Petitioners were not denied the right to communicate with counsel nor were they denied the right to communicate with their relatives," is not supported by evidence. All affirmative evidence is to the effect that the opportunity was denied them. The rights of communications go with the man into the jail, and reasonable opportunity to exercise them must be afforded by the restraining authorities. In this connection attention is called to the provisions of G.S. § 15-47: "* * * it shall be the duty of the officer making the arrest to permit the person so arrested to communicate with counsel and friends immediately, and the right of such persons to communicate with counsel and friends shall not be denied." The denial of the opportunity to exercise a right is a denial of the right.
This Court realizes the difficulty attending any attempt to lay down and apply general rules dealing with such constitutional rights as are here involved. After all, each case must be decided on its own facts. In this particular setting, however, we think the court's finding of fact No. 3 is sufficient within itself to require that the case go back for a new trial. The State has elected to prosecute the three defendants in a single bill of indictment containing *621 one count charging a joint offense. The victim testified as to the identity of Wheeler and English as the actual perpetrators, and other witnesses offered testimony tending to show that the three defendants were together both before and after the offense. While the indictment does not contain a conspiracy count, nevertheless, we may assume the State emphasized the petitioners' associations together both before and after the robbery as proof they acted together in committing the offense. Such being the background, evidence tending to show English was in Raleigh at the time of the offense would tend materially to weaken the State's case.
In the light of the foregoing circumstances, it follows as a matter of course the three petitioners were entitled to confer together as to their joint defense to the joint charge. Each was entitled to know what facts and circumstances the others could contribute to the defense. The record shows this right was denied. Each was given a separate hearing. The bill of indictment charging a joint offense was not returned until the term at which the trial took place. Nothing in the record indicates either defendant was advised of the joint charge until the case was called for trial. The court's finding No. 3 furnishes proof that the right to prepare for trial was denied. Due process of law implies the right and opportunity to be heard and to prepare for the hearing. Holden v. Hardy, 169 U.S. 366, 18 S. Ct. 383, 42 L. Ed. 780; 16 C.J.S. Constitutional Law § 138, p. 578; Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791.
Did the petitioners waive their rights by failing to complain to the court at the time of arraignment? Neither had been "allowed" to communicate with the others since their arrest two months previously. As they were led into court they were confronted by the State's prosecutor, ready for trial with his investigators and witnesses. Each defendant was in ignorance of what the others were able to offer in defense. Each was without an attorney, relative, or friend. It is scarcely surprising, therefore, that all were overwhelmed at the prospect of facing trial upon a charge which carried the same maximum punishment as murder in the second degree. Even though they were mature persons and the men not altogether strangers to court proceedings, nevertheless, their failure at the time of arraignment to complain to the court was not a waiver of their constitutional rights.
We suggest that it is the duty of officers of the law, upon request, to make a reasonable effort to notify relatives of persons held in jail charged with serious offenses. Likewise, persons jointly charged have the constitutional right, as a part of their trial preparations, to confer together as to their joint defense. This right is neither withdrawn nor abridged by reason of fear on the part of the investigating officers that from a conference they may evolve a bogus defense.
We have admiration and respect for the able and painstaking judge who conducted the post conviction hearing in this case. However, on the record as it comes to us we are unable to join in the view that the petitioners' constitutional rights have been afforded them. We think the records and his own findings require decision to the contrary. For the reasons herein set forth, it is ordered that the verdict and judgment be set aside and that there be a
New trial.
PARKER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338444/ | 214 Ga. 583 (1958)
105 S.E.2d 894
HOLLAND
v.
STERLING et al.
20256.
Supreme Court of Georgia.
Submitted October 16, 1958.
Decided November 7, 1958.
*584 Preston L. Holland, for plaintiff in error.
Dan Copland, Scott Walters, Jr., Jas. L. Thomason, Thos. L. *585 Thompson, Nall, Miller, Cadenhead & Dennis, B. Carl Buice, contra.
HEAD, Justice.
The plaintiff in error was employed as an attorney by Central Builders Supply Company, Inc., as assignee of Citizens Bank of Hapeville, to foreclose a deed to secure debt executed by John Sterling to the bank. The plaintiff in error has not cited any authority to sustain a petition for interpleader under the facts of this case.
"Powers of sale in deeds of trust, mortgages, and other instruments, shall be strictly construed and shall be fairly exercised. . . ." Code § 37-607 as amended, Ga. L. 1937, p. 481. Powers contained in a deed to secure debt are matters of contract, and will be enforced as written. Plainville Brick Co. v. Williams, 170 Ga. 75 (152 S.E. 85); Miron Motel v. Smith, 211 Ga 864 (3) (89 S.E.2d 643). Central Builders Supply Company, Inc., as assignee, can not claim the right to exercise the powers contained in the deed to secure debt conferred upon the grantee, and escape the duties and obligations resting upon the grantee in such deed. The deed from Sterling to the bank provides that the grantee, or assigns, from the proceeds of a foreclosure sale, after reserving therefrom the principal, interest, and any other amounts due, "shall pay any overplus to the grantor, or to the heirs or assigns of grantor as provided by law."
The deed from Sterling to the bank was duly recorded in the office of the clerk of the superior court, and this was constructive notice to the world of the terms and provisions of the deed, from the date of its record. Clark v. C. T. H. Corporation, 181 Ga. 710 (184 S.E. 592); Poore v. Poore, 210 Ga. 371, 372 (80 S.E.2d 294). It appearing from the petition for interpleader that the grantor, John Sterling, has claimed the amount derived from the sale, in excess of the amount claimed by the assignee, Central Builders Supply Company, Inc., the assignee was legally bound under the terms of the contract to pay this overplus to him, in the absence of proper proceedings by one or more of the alleged claimants to the fund to prevent such payment.
In the present case the petition could not be maintained even if brought by Central Builders Supply Company, Inc. One who seeks the aid of a court of equity by petition for interpleader *586 must claim no right in opposition to the claimants to the fund. Manufacturers Finance Co. v. Jones Co., 141 Ga. 619, 621 (81 S.E. 1033). The petition seeks to charge the grantor in the security deed with $338.30 as attorney's fees. It contains no allegations of any compliance, or attempted compliance, with the requirements of Code § 20-506 as amended by Ga. L. 1953, p. 545. "Attorney's fees specified in a promissory note can be collected only on the statutory terms; . . ." Byrd v. Equitable Life Assurance Society, 185 Ga. 628 (5) (196 S.E. 63); Walton v. Johnson, 213 Ga. 108 (97 S.E.2d 310).
The promissory note and debt secured by the deed is in the principal sum of $2,500, dated May 17, 1956, and was transferred on November 29, 1956. The note bears interest at the rate of 6% per annum, and had run for approximately six and one-half months. The amount of annual interest at 6% on $2,500 would be $150. No explanation is made of how the bank was entitled to demand and collect $237.42 as accrued interest at the time of the assignment. Since the assignee of the deed would be accountable to the grantor for the disposition of the proceeds of the sale, it may not, in order to assert that its open account comes under the provisions of the deed and is secured thereby, pay to the grantee in the deed interest in excess of the amount due.
Under the facts of this case, the assignee could not maintain an action for interpleader, and certainly its attorney can not do so. The judge of the superior court properly sustained the general demurrer and dismissed the petition.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338456/ | 98 Ga. App. 346 (1958)
105 S.E.2d 771
WILLIAMS
v.
THE STATE (three cases).
37358, 37359, 37360.
Court of Appeals of Georgia.
Decided October 16, 1958.
Hollis Fort, Jr., for plaintiff in error.
Claude N. Morris, Solicitor, contra.
CARLISLE, Judge.
J. T. (Buck) Williams was tried and convicted in the City Court of Americus on three separate accusations charging him with receiving stolen property, in each case the property alleged to have been stolen and received by the defendant being 26 sport shirts. The only substantial difference in the three accusations was the date of the alleged offense, the first offense being on January 11, 1958, the second on January 25, 1958, and the third on February 8, 1958. Each case was tried separately and the defendant, upon conviction in two of the cases, was sentenced to a term of 12 months on the public works which was suspended upon the payment of a fine, and in the third case, the sentence was twelve months on the public works 6 months of which was suspended after the defendant had served 6 months and upon the payment of a fine. The defendant made motions for new trial on the general grounds, and in each *347 case the motion was amended by the addition of two special grounds. These motions were denied and the exceptions here are to those judgments.
1. The evidence in each case as to material facts was substantially the same, and it is sufficient to say that it showed that the defendant had purchased the shirts in each instance from one Charles Kenmore, the principal thief and an employee of a sports-wear company in Adel, Georgia, under such circumstances as would have raised a question in the mind of a reasonable man as to the bona fides of the transaction. In each instance, the sale and delivery of the shirts took place on a Saturday night and the shirts were delivered to the defendant's hotel room in the Windsor Hotel in Americus, Georgia, by being brought in at a side door, and the defendant paid a price for the shirts which, under the evidence, the jury was authorized to find was in great disparity to their real value. The evidence in each case was sufficient to sustain the verdict of guilty.
2. Special ground 1 in Case No. 37358 assigns error on the failure of the court to grant a mistrial on motion of the defendant because the solicitor stated to the jury in his argument after the close of the evidence that the defendant's statement was not under oath. Under the rulings in Ryals v. State, 125 Ga. 266 (1) (54 S.E. 168), and Turner v. State, 20 Ga. App. 165 (1) (92 S.E. 975), this statement to the jury was not harmful to the defendant nor was it error such as to require a new trial for the court to permit the statement. The prosecuting attorney has the right in his argument to criticize the defendant's statement, and while, of course, the defendant, under our law, has no choice but to stand mute or make an unsworn statement, this fact would seem to be a legitimate matter upon which the solicitor could comment in his argument. See Fitzgerald v. State, 51 Ga. App. 636 (2) (181 S.E. 186).
3. Special ground 2 complains of a portion of the charge which was substantially in the language of Code § 26-2620 to which the judge added after charging substantially in that language that "Of course, it must be that under our State law, anyone who is convicted of the offense of receiving stolen property would receive the punishment of a misdemeanor." It is *348 contended that this charge was misleading and confusing to the jury in that it led them to believe that by a verdict of guilty the defendant would be subjected to the same punishment as would have been imposed upon the principal thief. This charge was not subject to this criticism.
4. In Case No. 37359 the first special ground of the motion for a new trial was on the ground of newly discovered evidence under the provisions of Code §§ 70-204 and 70-205. The affidavit in support of the witness who it was alleged would testify as to such new evidence merely averred that the said witness was considered a man of high character and that his honesty and integrity had never been questioned, but it wholly failed to meet the requirements of the Code that it give the names of the associates of such witness. This is a necessary requirement in order to enable the prosecution to make a counter-showing as to the witness and, where, as in this case, the affidavit did not comply with this requirement of the Code, the trial judge did not abuse his discretion in refusing to grant a new trial on this ground. Christie v. State, 55 Ga. App. 155, 156 (189 S.E. 378).
Furthermore, it appears from this ground of the motion for a new trial that the evidence which is alleged to have been newly discovered was merely impeaching in its character and under repeated decisions of the Supreme Court and of this court, such evidence is not a ground for a new trial. See the many cases cited under the catchword "Impeaching". Code (Ann.) § 70-204.
5. Special ground 2 of the motion for a new trial in case No. 37359 seeks a new trial on the ground of newly discovered documentary evidence in the form of a check "bearing date of February 7, 1958, and having the endorsement thereon of C. W. Kenmore, principal thief," a photostatic copy of which was alleged to have been attached as an exhibit to the motion. In the record sent to this court, however, no photostatic copy or other copy of any check is attached as an exhibit to the motion for a new trial. It is not alleged in this ground of the motion for a new trial what connection the movant contends there was between this check and the transaction for which he was convicted or how it constitutes material evidence throwing light on *349 his guilt or innocence. In these circumstances, the trial court did not err in overruling this ground of the motion for a new trial.
6. The first special ground of the motion for a new trial in Case No. 37360 complains of the following portion of the charge: "Now I want to charge you gentlemen further. There are certain elements the State must prove to your satisfaction beyond a reasonable doubt before the State's case would be made in such a case as this. One of the elements is that the defendant bought or received the goods. Of course, there is no contention in this case with reference to that accusation or contention of the State." It is the contention of the plaintiff in error as to this ground that in the use of the phrase, "bought or received," the court stated an incorrect principle of law in that the proper wording should be that, "One of the elements is that the defendant received the goods." This portion of the charge was not erroneous. The defendant did, in fact, in his statement admit that he had purchased the shirts involved from the principal defendant. That the defendant bought or purchased the shirts was just one of the ways in which he might have "received" the stolen goods. The use by the court of the word "bought" under the facts of this case cannot be said to have been harmful to the defendant. There having been no issue made by the evidence in the case as to this point, there was no error committed by the court in so charging the jury. Belton v. State, 21 Ga. App. 792, 794 (95 S.E. 299).
7. Special ground 2 of the motion in this case (37360) assigns error on a portion of the charge because it instructed the jury that the defendant admitted that he bought the shirts. An examination of the record and the statement of the defendant in the brief of evidence discloses that the defendant did in fact in his statement admit that he had bought the shirts in question, and the only question for the jury's consideration was in reality whether or not the defendant bought them with knowledge that they were stolen property. These being the facts, this portion of the charge was not error for the reason assigned. See Johnson v. State, 30 Ga. 426, 431.
*350 The trial court did not err in denying the motions for a new trial on each and every ground thereof.
Judgments affirmed. Gardner, P. J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338438/ | 214 Ga. 370 (1958)
105 S.E.2d 29
ROWAN et al., Trustees,
v.
HERRING, Exr., et al.
20143.
Supreme Court of Georgia.
Argued July 15, 1958.
Decided September 5, 1958.
*372 Conger & Conger, Leonard H. Conger, for plaintiffs in error.
Custer & Kirbo, contra.
MOBLEY, Justice.
The executor has construed the will to give the church two houses and lots and the defendants one house and lot, and he has executed a deed to the defendants conveying the house and lot in question. The defendants are in possession of the house and refuse to deliver it to the plaintiffs or to account for the rents. From these facts it is clear that all rights have accrued to the parties; that no adjudication of the plaintiffs' rights is necessary in order to relieve them from the risk of taking any future undirected action incident to their rights, which action without direction would jeopardize their interest no necessity for direction as to future action is alleged, and the plaintiffs have an adequate remedy either at law or in equity.
In the first case to come before this court under the Declaratory Judgment Act of 1945, this court stated: "As we understand the beneficent purposes and intent of the act, it was not intended in some ambiguous way to blot out `at one fell swoop' innumerable rights and privileges bestowed by the Code and by the fundamental principles of law, but was intended by the very meaning and concept of the word to give additional protection to persons who may become involved in an actual justiciable controversy, in that they differ between themselves as to what their rights are, and who wish to find them out before taking some dangerous step which might or might not be authorized." Shippen v. Folsom, 200 Ga. 58, 68 (35 S.E.2d 915). In Mayor &c. of Athens v. Gerdine, 202 Ga. 197 (1) (42 S.E.2d 567), this *373 court ruled that, "While our declaratory-judgment statute itself says that it should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies. It therefore follows that where there exists a remedy, either in law or in equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest." This ruling has been consistently followed, as pointed out in Sumner v. Davis, 211 Ga. 702 (88 S.E.2d 392), and in the following cases decided since the Sumner case: Brown v. Cobb County, 212 Ga. 172 (91 S.E.2d 516); Zeagler v. Willis, 212 Ga. 286 (92 S.E.2d 108); State of Georgia v. Hospital Authority, 213 Ga. 894 (102 S.E.2d 543).
However, the plaintiffs contend that the instant petition involves the construction of a will and that, without regard to whether petitioners are faced with uncertainty and insecurity or whether direction is needed before taking some future action, a cause of action is stated under Code (Ann.) § 110-1107, which reads as follows: "Without limiting the generality of any of the foregoing provisions, any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, ward, next of kin, cestui que trust, in the administration of a trust or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto and a declaratory judgment: . . . (c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings."
With this contention we do not agree. Rights given under this section must be construed in connection with section one of the act, Code (Ann.) § 110-1101. There must exist an actual controversy as to questions arising out of the administration of *374 the estate, or disputed questions necessitating a construction of the will. Darnell v. Tate, 206 Ga. 576 (58 S.E.2d 160); Wright v. Heffernan, 205 Ga. 75 (52 S.E.2d 289). Likewise, the rule as to the necessity for direction, as quoted from the Gerdine case, 202 Ga. 197, supra, applies in cases arising under Code (Ann.) § 110-1107 equally as well as to cases arising under section one of the act. The same impelling reasons for such rule apply in cases involving administration of estates, construction of wills, etc. The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole. 7 Ga. Bar Journal, p. 132; Venable v. Dallas, 212 Ga. 595 (94 S.E.2d 416).
These petitioners obviously are not in that position. They are not faced with taking any step that would injure or jeopardize their rights. The steps have already been taken. All rights have accrued, the property has been deeded by the executor to the defendants Mrs. Simmons and Mrs. Herring, and they are in possession of it. The plaintiff's position now is quite different from that which existed prior to the executor's deeding the property to Mrs. Simmons and Mrs. Herring and their going into possession. They have waited until the horse is out and gone before trying to lock the stable door. What they now are concerned with is getting the property back, having the executor's deed canceled of record, securing assent of the executor to the devise of the property to them, recovering their rents, etc., none of which relief is available in this proceeding but for which they have an adequate and complete remedy.
In Cohen v. Reisman, 203 Ga. 684 (48 S.E.2d 113), this court applied the rule pronounced in the Gerdine case, 202 Ga. 197, supra, where a declaratory judgment was sought for construction of a will. The will provided for forfeiture of the interest of any beneficiary who sought to involve the estate in litigation. The court stated (headnote 3): "Here is an unquestionably justiciable controversy, where there is uncertainty *375 and insecurity with respect to rights of the litigant as to whether she would forfeit her rights under the will by bringing an action of the character indicated"; and concluded "that the instant case comes clearly within the purview of the declaratory-judgment act, and the trial court properly overruled the general demurrer attacking the petition on this ground." In Taylor v. Taylor, 205 Ga. 483, 485 (53 S.E.2d 769), it was stated: "It is not contended that the present petition is maintainable as one for a declaratory judgment, under the provisions of the Declaratory Judgments Act (Ga. L. 1945, p. 137), giving to legatees the right to a declaration of rights with respect to the construction of wills; nor does the petition purport to seek such relief. If it did, it would be inadequate because all acts complained of have accrued, and the petition in nowise indicates that the plaintiff is without an adequate remedy in law or equity, nor does it show the existence of any facts or circumstances such as would render an adjudication necessary in order to relieve the plaintiff from the risk of taking any future undirected action incident to his rights, which action without direction would jeopardize his interest. Mayor &c. of Athens v. Gerdine, 202 Ga. 197 (42 S.E.2d 567); Georgia Marble Co. v. Tucker, 202 Ga. 390 (43 S.E.2d 245)." The conclusion indicated by the Cohen and Taylor cases, supra, is sound, and the rule pronounced in the Gerdine case, supra, applies to cases brought under the provisions of Code (Ann.) § 110-1107.
For the reasons given above, the petition does not allege a cause of action for declaratory judgment, and it was not error for the trial court to sustain the general demurrer thereto and dismiss the petition.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338460/ | 105 S.E.2d 446 (1958)
249 N.C. 113
STATE
v.
Allen DENNY.
No. 364.
Supreme Court of North Carolina.
October 29, 1958.
*448 Malcolm B. Seawell, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.
J. H. Whicker, Sr., North Wilkesboro, Allen, Henderson & Williams, Elkin, for defendant appellant.
WINBORNE, Chief Justice.
The record on this appeal discloses that the case in hand was tried in Superior Court upon the theory that, in view of the statement by the Solicitor, as above recited, "the charge of murder in the first degree is no longer in this case, but the charge of murder in the first degree with recommendation for mercy is in the case." The question then arises as to whether there is in this State any crime known to criminal law as "murder in the first degree with recommendation of mercy." The answer is "No." Recommendation by the jury pertains to punishment, and is not an element of murder in the first degree.
In this connection, G.S. § 14-17, as amended by Section 1 of Chapter 299 of 1949 Session Laws of North Carolina, provides that "A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury. All other kinds of murder shall be deemed murder in the second degree, and shall be punished," etc.
The proviso embraces the 1949 amendment, and has been the subject of discussion in several cases. State v. McMillan, 233 N.C. 630, 65 S.E.2d 212; State v. Marsh, 234 N.C. 101, 66 S.E.2d 684; State v. Simmons, 234 N.C. 290, 66 S.E.2d 897; Id., 236 N.C. 340, 72 S.E.2d 743; State v. Dockery, 238 N.C. 222, 77 S.E.2d 664; State v. Conner, 241 N.C. 468, 85 S.E.2d 584; State v. Carter, 243 N.C. 106, 89 *449 S.E.2d 789; State v. Adams, 243 N.C. 290, 90 S.E.2d 383; State v. Cook, 245 N.C. 610, 96 S.E.2d 842.
In the McMillan case, supra [233 N.C. 630, 65 S.E.2d 213], this Court said that "The language of this amendment stands in bold relief. It is plain and free from ambiguity and expresses a single, definite and sensible meaning,a meaning which under the settled law of this State is conclusively presumed to be the one intended by the Legislature." And, continuing, the Court then declared: "It is patent that the sole purpose of the act is to give to the jury in all cases where a verdict of guilty of murder in the first degree shall have been reached, the right to recommend that the punishment for the crime shall be imprisonment for life in the State's prison * * * No conditions are attached to, and no qualifications or limitations are imposed upon, the right of the jury to so recommend. It is an unbridled discretionary right. And it is incumbent upon the court to so instruct the jury. In this, the defendant has a substantive right. Therefore, any instruction, charge or suggestion as to the causes for which the jury could or ought to recommend is error sufficient to set aside a verdict where no recommendation is made."
Thus the statute "commits the matter to the unrestrained discretion of the jury." State v. Marsh, supra [234 N.C. 101, 66 S.E.2d 688], citing the McMillan case. To like effect are the holdings in above cited cases.
In State v. Carter, supra [243 N.C. 106, 89 S.E.2d 790], opinion by Johnson, J., it is stated:
"Prior to 1949, the punishment for murder in the first degree was death. A recommendation of mercy by the jury meant nothing as bearing on the duty of the judge to impose punishment. The recommendation was treated as surplusage. The death sentence followed as a matter of course. It was so fixed by statute, G.S. § 14-17.
"But this has been changed. Now, by virtue of Chapter 299 Session Laws of 1949, the statute, G.S. § 14-17, contains a proviso which directs that `if at the time of rendering its verdict in open court, the jury shall so recomend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury.'"
And it is then declared that "the jury now has discretionary right to recommend `imprisonment for life in the State's prison.' Now the recommendation when made may not be treated as surplusage. The recommendation has the salutary effect of mitigating the punishment from death to imprisonment for life, and the Act of 1949 expressly provides that the `court shall so instruct the jury.' * * * It is not enough for the judge to instruct the jury that they may recommend life imprisonment. The statute now requires that he go further and tell the jury what the legal effect of such recommendation will be, i. e., that if they make the recommendation, it will mitigate the punishment from death to imprisonment for life in the State's prison." To like effect are State v. Adams, supra, and State v. Cook, supra.
It is fair to say that the case of State v. Green, 246 N.C. 717, 100 S.E.2d 52, 53, doubtless caused the procedure followed in this case. There the defendant was charged with rape, and the Solicitor for the State made this announcement at the outset of the trial: "The State will not ask for a verdict of guilty of the capital crime carrying the death penalty, but will ask for a verdict of guilty of rape, with the recommendation of life imprisonment or guilty of attempt to commit rape, as the facts and law may justify." The jury returned *450 verdict of "Guilty of an assault with intent to commit rape."
And on appeal to this Court there was no exception to the statement of the Solicitor, and consideration of it was not essential to decision on matters presented. Hence no expression of opinion by this Court in respect thereto was then made. The statement of the Solicitor had been by-passed, so to speak, by the verdict of the jury finding defendant guilty of a lesser offense than rape.
For reasons stated herein the judgment in the instant case will be arrested, and a new trial ordered.
New trial.
PARKER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743616/ | 289 Wis. 2d 548 (2006)
710 N.W.2d 725
2006 WI App 31
STATE v. NORRINGTON.[]
Nos. 2004AP001167 CR, 2004AP001168 CR.
Court of Appeals of Wisconsin.
January 24, 2006.
Unpublished opinion. Affirmed.
NOTES
[] Petition to review filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632544/ | 150 P.3d 912 (2007)
STATE of Kansas, Appellee,
v.
Kevin W. BASTIAN, Appellant.
No. 95,651.
Court of Appeals of Kansas.
February 2, 2007.
*914 Rick Kittel, of Kansas Appellate Defender Office, for appellant.
James R. Watts, assistant county attorney, and Phill Kline, attorney general, for appellee.
Before McANANY, P.J., PIERRON, J., and BUKATY, S.J.
McANANY, P.J.
Kevin W. Bastian appeals the district court's denial of his suppression motion which led to his convictions for possession of methamphetamine and possession of drug paraphernalia.
The charges against Bastian arise from an incident in the early morning hours of September 2, 2003. Dallas Wedel, who was house-sitting for the owners of a ranch in Butler County, called the sheriff's department to report an unknown man who had parked a pickup truck under the deck of the house. The man was in the driver's seat slumped over the wheel. The engine was off but the lights of the vehicle were on. Officer Brandon Stewart of the Butler County Sheriff's Department and Deputy Chief Todd Ball of the Rose Hill Police Department responded to the call. Ball arrived first and waited for Stewart's arrival. When Stewart arrived and approached the vehicle, he saw the driver, Bastian, slumped over and "messing around in his feet area." As a precaution Stewart drew his weapon since he could not see Bastian's hands and did not know what Bastian was doing in the floorboard area. Stewart ordered Bastian out of the car and turned him over to Ball. Stewart then saw a syringe and an unspent cartridge designed for use in an automatic pistol. The syringe and cartridge were located in plain view on the center console of the pickup.
The presence of the syringe led Stewart to believe that Bastian was either a diabetic or a narcotics user. He did not know which. The presence of the cartridge suggested that a gun might be nearby. Therefore, Stewart searched the pickup for a weapon and any illegal drugs while Ball secured Bastian and patted him down for a weapon. A weapon which could use the kind of cartridge Stewart found would be rather bulky. Neither Ball nor Stewart found any weapon. The search of the pickup did not produce any drugs.
When Stewart questioned Bastian about why he was on the property, it appeared that Bastian was under the influence of alcohol or drugs. Bastian was jittery and had a hard time standing without support. He said he had become tired while driving and had decided *915 to pull over and get some sleep. Bastian thought he was in Utah.
Stewart told Bastian he would have to submit to field sobriety testing. Before doing so, Stewart directed Bastian to empty his pockets. This was Stewart's regular practice before patting down a suspect. Bastian removed several small bags from his pocket which were later determined to contain methamphetamine.
Bastian was charged with possession of methamphetamine and possession of drug paraphernalia. The evidence to support the possession of methamphetamine charge came from the search of Bastian's person after he was removed from the pickup. The evidence to support the possession of drug paraphernalia charge came from the syringe which was in plain view when Bastian got out of the pickup. Bastian moved to suppress the evidence obtained from the search of his vehicle and his person. Following a hearing, the district court denied the motion.
The case ultimately was tried to the court on stipulated facts. Bastian was found guilty on both counts. The court imposed a $500 fine and a 20 months' prison sentence, granted Bastian 12 months' probation, and ordered 12 months of postrelease supervision for the possession of methamphetamine conviction. The court imposed a $300 fine and a concurrent sentence of 6 months in jail for the possession of drug paraphernalia conviction. The court also ordered Bastian to pay $400 in restitution to the KBI for lab fees, to reimburse BIDS for his court-appointed counsel, to pay the costs of the action, and to pay a probation fee. Bastian now appeals. He argues that the district court erred in not suppressing the evidence against him and in ordering him to pay fines and the BIDS fee.
Preservation of Issue for Review
The State first argues that since Bastian did not renew at trial his objection to the evidence obtained at the scene, he failed to preserve this issue for appeal. The contemporaneous objection rule is found in K.S.A. 60-404. In the context of this case, the purpose of the rule is to give the trial court the opportunity to revisit its prior ruling on the suppression motion before introduction of the evidence at trial. The rule has no application here.
The same judge who heard the testimony at the suppression hearing presided over the bench trial. The judge was aware of the circumstances under which the State obtained the evidence and the defendant's objections to it. The trial consisted of a submission to the court of stipulated facts, along with a transcript of the suppression hearing and the videotape of the arrest introduced at the suppression hearing. There was no trial in the traditional sense. No witnesses were called. No additional evidence was presented. There was no point during the proceedings when Bastian's counsel had the opportunity to rise and announce, "We object!" No arguments of counsel were heard beyond those memorialized in the transcript of the suppression hearing. Bastian's objections to the evidence were clearly expressed at the suppression hearing. In announcing its ruling, the court specifically referred to having considered the parties' stipulation and the transcript of the suppression hearing. The court concluded: "I reread the transcript again last night and the Court has concluded that the defendant is guilty beyond a reasonable doubt." Bastian has preserved the issue for appeal.
The Detention of Bastian
At the suppression hearing the State had the burden to prove that the search and seizure were lawful. See State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). In reviewing the district court's denial of Bastian's suppression motion, we review the district court's ultimate legal conclusion de novo. See State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights protect against unreasonable searches and seizures of persons. As stated in State v. Morris, 276 Kan. 11, Syl. ¶ 5, 72 P.3d 570 (2003):
"A seizure of a person occurs if there is the application of physical force or if there is a show of authority which, in view of all the circumstances surrounding the incident, *916 would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority."
It is clear that Stewart's seizure of Bastian occurred when Stewart approached Bastian's pickup with his weapon drawn and ordered Bastian out of the pickup, and Bastian complied. The issue is whether Stewart had reasonable suspicion to detain Bastian at that point. In ruling on the suppression motion, the district court found that Stewart saw the syringe and the cartridge before ordering Bastian out of the pickup. In fact, Stewart testified that he saw these items only after ordering Bastian out of the pickup. Thus, while we normally defer to the trial court on issues of fact, we do not do so here because there was no substantial evidence to support this finding. See Ackward, 281 Kan. at 8, 128 P.3d 382. Since Bastian was detained when he complied with Stewart's order that he get out of the car, the presence of the syringe and cartridge do not provide reasonable suspicion for that initial detention.
The State asserts, however, that Stewart had reasonable suspicion to detain Bastian even before Stewart saw the syringe and the cartridge in the pickup. This assertion is well founded. In the middle of the night, Wedel discovered an unknown person parked in a pickup truck under the deck of the home he was caring for in rural Butler County. This was of sufficient concern for Wedel to call the sheriff's department. While Bastian points out that Wedel's concern was for his welfare, since Bastian was slumped over the wheel of the pickup, the fact of the matter is that Wedel called law enforcement, not an ambulance or the local rescue unit. While it is also correct that Wedel did not report that Bastian had threatened him, Wedel was concerned about Bastian's presence on private property and did not know if Bastian had permission to be there. And while Wedel did not report that Bastian had engaged in any criminal activity, Stewart had reasonable suspicion to detain Bastian based upon the belief that he was a trespasser or was about to commit a crime. Considering the totality of the circumstances, Stewart had reasonable suspicion to justify directing Bastian to get out of the pickup. See State v. Burks, 15 Kan. App. 2d 87, 89-90, 803 P.2d 587 (1990), rev. denied 248 Kan. 997 (1991). Once Stewart observed the unspent cartridge used as ammunition in an automatic pistol and Bastian's apparent intoxicated condition, he had grounds to inquire further and search the vehicle. Stewart's search of the vehicle yielded the syringe, which was in plain view.
It is important to note that Bastian does not challenge the sufficiency of the evidence to support his conviction for possession of drug paraphernalia. Rather, he challenges the district court's refusal to suppress the use of the syringe as evidence. The syringe was obtained in the search of the pickup. Since the search of the pickup was legal, Bastian's conviction for possession of drug paraphernalia stands. On the other hand, if the court erred in admitting into evidence the methamphetamine taken from Bastian's person, his conviction for possession of methamphetamine must be reversed. Therefore, we must now examine the search of Bastian's person.
The Search of Bastian's Pockets
Having ordered Bastian out of his pickup truck, Stewart directed Bastian to empty his pockets. This led to the discovery of contraband. The State seeks to justify this search under two theories: first, it was not a search at all but rather a voluntary disclosure by Bastian following Stewart's request; and second, since Stewart could have lawfully searched Bastian's pockets himself, asking Bastian to empty his own pockets was not improper. Upon examination, both of the State's arguments fail.
The State relies on State v. Bieker, 35 Kan. App. 2d 427, 132 P.3d 478 (2006), in contending that Bastian's disclosure of the contents of his pockets was voluntary. Since the facts relating to this portion of Stewart's investigation are not disputed, we may resolve the issue as a question of law. See State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004). In Bieker, the officer requested a pat-down search of Bieker for weapons, and Bieker responded by emptying his pockets and revealing drugs. The officer had not *917 drawn or displayed his weapon. The officer was dressed in ordinary street clothes but had shown Bieker his badge. There was no inference that the officer threatened Bieker or behaved in an intimidating manner. The court found that there was no evidence that the production of the items in Bieker's pocket was other than the result of Bieker's willingness to comply with the investigator's request.
The facts in Bieker stand in stark contrast to those now before us. Here, Bastian was ordered out of his vehicle at gunpoint in the middle of the night by two uniformed officers and detained by one while the other searched his pickup. While Stewart characterized Bastian's response as voluntary, Stewart testified that if Bastian had refused to empty his pockets, Stewart would have emptied them himself. In order to avoid Fourth Amendment constraints, Bastian's disclosure of the contents of his pockets, an analogue for a search by Stewart, must have been made voluntarily and without duress or coercion. See State v. Dwyer, 28 Kan. App. 2d 238, Syl. ¶ 3, 14 P.3d 1186 (2000), rev. denied 270 Kan. 900 (2001). Under these circumstances, a reasonable person would not feel free to ignore Stewart's "request." Bastian's disclosure of the contents of his pockets was not a voluntary act, but an inevitable response to Stewart's show of authority.
With respect to the State's second argument, that Stewart was justified in searching Bastian's pockets himself but instead requested that Bastian empty his own pockets, the State contends that Stewart's request was justified because Stewart believed Bastian might be carrying a weapon.
When Stewart saw the unspent cartridge in the pickup, he had a reasonable suspicion that Bastian was armed. During an investigative detention, if an officer reasonably suspects that personal safety requires it, the officer may frisk the seized person for firearms or other dangerous weapons. K.S.A. 22-2402(2). However, Bastian had already been patted down by Ball, "a capable and competent officer," when Bastian first got out of the pickup.
Further, the pat-down frisk for weapons authorized by K.S.A. 22-2402 is not the same as a search inside a suspect's pockets. As stated in State v. Waddell, 14 Kan. App. 2d 129, Syl. ¶ 3, 784 P.2d 381 (1989):
"The initial frisk permitted under Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] and K.S.A. 22-2402 is limited to a `patdown' search of the suspect's outer clothing to determine the existence of concealed objects which might be used as weapons. An officer may not reach directly into a suspect's pockets or outer clothing without first having conducted a patdown search, and the exclusionary rule must be applied to any evidence removed from the pockets of a suspect prior to a patdown search."
When Stewart directed Bastian to empty his pockets in anticipation of a second pat-down search, Stewart violated Bastian's Fourth Amendment rights. He had no probable cause to search Bastian's person beyond a pat-down frisk to search for weapons.
Since all the evidence used to convict Bastian on the charge of possession of methamphetamine was obtained through this illegal search, the conviction on this charge must be reversed.
The Imposition of a Fine and Restitution
Bastian next argues that the district court erred in imposing fines against him because it failed to comply with the Kansas Sentencing Guidelines Act by not making any specific findings that a fine was warranted and by not taking Bastian's financial resources into consideration. The State concedes that the district court failed to make the required findings. However, the State argues that Bastian failed to preserve this issue for appeal because he did not object at the time the fines were imposed.
Generally, issues not raised below cannot be raised on appeal. State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). However, an exception applies when a newly asserted legal theory involves only a question of law arising on proved or admitted facts and is finally determinative of the issue. State v. Schroeder, 279 Kan. 104, 116, 105 *918 P.3d 1237 (2005). This exception applies here. Thus, we will consider the issue, but only those fines and fees related to the possession of drug paraphernalia conviction which has been affirmed.
K.S.A. 21-4607(3) required the court to make specific findings and to take into consideration Bastian's financial resources and the financial burden a fine would impose at the time it imposed fines against him. See State v. Edwards, 27 Kan. App. 2d 754, Syl. ¶ 7, 9 P.3d 568 (2000). The court imposed a $300 fine for the possession of drug paraphernalia conviction. The court did not make the requisite findings to support the $300 fine. Thus, this fine imposed on Bastian is vacated and the case is remanded for compliance with Edwards with respect to the imposition of a fine.
Assessment of the BIDS Fee
Bastian argues, and the State concedes, that the district court erred in failing to consider Bastian's financial resources at the time it assessed the BIDS fees against him, as required by State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 (2006). However, the State argues that Bastian did not preserve the issue for appeal. Once again, the issue is one of law arising on proved or admitted facts and is finally determinative of the issue. See Schroeder, 279 Kan. at 116, 105 P.3d 1237. Consequently, we can consider it.
The parties are well familiar with the ruling in Robinson which was announced after the district court sentenced Bastian. We must vacate the order for BIDS fees and remand the case to the district court for it to consider these financial impact issues discussed in Robinson. Further, the district court should take into account the effect, if any, of Bastian's conviction on only the possession of drug paraphernalia charge, since the possession of methamphetamine conviction has been reversed.
Affirmed in part; reversed in part; orders regarding one fine and reimbursement of BIDS fees vacated; and case remanded for further proceedings consistent with this opinion. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632546/ | 150 P.3d 58 (2006)
IN RE B.P.
No. 20060606.
Supreme Court of Utah.
September 20, 2006.
Petition for certiorari granted. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1289265/ | 306 S.E.2d 889 (1983)
Alfred BROWN, et al.
v.
TAZEWELL COUNTY WATER AND SEWERAGE AUTHORITY.
Record No. 801634.
Supreme Court of Virginia.
September 9, 1983.
*890 S. Strother Smith, III, Abingdon, for appellants.
Roger W. Mullins, Tazewell (James R. Henderson, Norfolk, Mullins & Mullins, P.C., Tazewell, on brief), for appellee.
Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON, RUSSELL and THOMAS, JJ.
RUSSELL, Justice.
The sole question presented by this appeal is whether a road shown on a recorded plat was so dedicated to public use as to permit the installation of utility lines therein. Appellants are the owners of all the lots, except lot 7, in the "College View Addition," near Wardell, in Tazewell County. The Tazewell County Water and Sewerage Authority (Authority) brought suit against them for declaratory judgment and injunctive relief, alleging that they were resisting and obstructing its efforts to construct water and sewer lines in a forty foot wide right-of-way shown as a street on a recorded plat of their subdivision. The owners contended that the road had never been dedicated, accepted, or otherwise acquired for public use. The court entered a decree declaring that the roads shown on the plat were public and that the Authority had the right to construct and operate water and sewer systems therein. It enjoined the appellants from interfering with the Authority's operations. Upon a review of the record, we conclude that this ruling was error.
Beverly Horne and Emma Horne, his wife, owned a tract of land which they divided into lots of various sizes. A plat of the subdivided land was recorded among the Tazewell County land records in 1974. They then conveyed the lots to the appellants by various deeds. All the deeds referred to the plat, but only one deed relied upon it for a description. The others contained metes and bounds descriptions. The plat showed a forty foot wide right-of-way through the subdivision, labelled "40.0' street," to which a twenty foot extension connected. It furnished all the lots access to State Route 603. The deeds granted to the lot owners "along with others, a 40 ft. easement or right-of-way ... as shown on the aforesaid plat leading from Highway # 603 to the property herein conveyed."[*]
Tazewell County has a subdivision ordinance adopted pursuant to Va.Code tit. 15.1, ch. 11, art. 7 ("Land Subdivision and Development"). The provisions of this article specify certain contents of such ordinances and require counties and municipalities to adopt them. Code § 15.1-473 provides that no land shall be subdivided unless a plat is first made and recorded pursuant to the ordinance and article 7, that no plat shall be recorded unless it is first approved by the local commission or by the governing body or its agent, and that no subdivided land may be sold or transferred until such plat has been approved and recorded. Penalties are provided for grantors who convey land in violation of these provisions and for clerks who admit unapproved plats to record. Code §§ 15.1-475, -476, and -477 specify prerequisites for approval of such plats. Code § 15.1-478 provides in pertinent part:
*891 The recordation of such plat shall operate to transfer, in fee simple, to the respective counties and municipalities in which the land lies such portion of the premises platted as is on such plat set apart for streets, alleys or other public use and to transfer to such county or municipality any easement indicated on such plat to create a public right of passage over the same ....
It is conceded by the Authority that the plat in question here failed to meet the requirements of these provisions in a number of particulars: it was not certified or signed by a certified professional engineer or land surveyor and, most significantly, was recorded without having been submitted to or approved by the local commission, the governing body, or its agent.
The appellants testified that they asked the Tazewell County Board of Supervisors to request the Virginia Department of Highways to take over the maintenance of the road, but were refused on the ground that it was not a public road, and before it could be considered for state maintenance, all parties in interest would have to "give the State a deed to this road." The owners then surfaced and maintained the road at their own expense. They further testified to continuing, but fruitless, efforts to persuade the county school board to send a school bus up the road daily to pick up the half busload of school children who lived there and who otherwise were required to walk to Route 603 to meet the bus. This request, they were told, was refused because school buses could not lawfully be operated over private roads. There was no evidence of any formal acceptance of the road by the governing body, or of any implied acceptance by the conduct of any public official prior to the Authority's entry to construct water and sewer lines.
In 1979, Western Coal Corporation, the owner of Lot 7, desiring to enlarge a small trailer park it was then operating, requested the Authority to provide water and sewer service to the lot. The Authority approved a project which would furnish service to lot 7, but to no other lots, and accepted the bid of a contractor for the work. The appellants resisted entry by the contractor's crew in June 1980. The Authority then brought this suit, which resulted in a decree in its favor.
Dedication, at common law, was a grant to the public, by a landowner, of a limited right of user in his land. No writing or other special form of conveyance was required; unequivocal evidence of an intention to dedicate was sufficient. Until the dedication was accepted by the public, it was a mere offer to dedicate, no matter how finally expressed. Prior to acceptance, the offer to dedicate imposed no responsibilities upon the public and was subject to unilateral withdrawal at any time by the landowner. 2 Minor on Real Property 1696-1702 (F. Ribble 2d ed. 1928). See also Bradford v. Nature Conservancy, 224 Va. 181, 198-99, 294 S.E.2d 866, 875 (1982). Acceptance could be formal and express, as by the enactment of a resolution by the appropriate governing body, or by implication arising from an exercise of dominion by the governing authority or from long continued public user of requisite character. Ocean Island Inn v. Virginia Beach, 216 Va. 474, 477, 220 S.E.2d 247, 250 (1975). If the land was dedicated to a particular public use and accepted, the public authorities were confined to that use and those necessarily attendant upon it or incidental thereto. 2 Minor on Real Property, supra, at 1701. See Anderson v. Water Company, 197 Va. 36, 41, 87 S.E.2d 756, 760 (1955).
Against this background, the General Assembly, beginning in 1887, enacted a series of laws relating to dedications of streets and other public areas within platted, recorded subdivisions. Acts 1889-90 ch. 45, p. 35, Va.Code 1919 § 5219, provided that the acknowledgement and recording of such a plat would operate to create a public easement or right of passage over streets shown on the plat. Nevertheless, we consistently held that although such "dedication by map" was irrevocable by the dedicator, the rights of the public were merely inchoate, and that the dedication was not complete until accepted by competent public authority. E.g., Payne v. Godwin, 147 Va. 1019, 1026, 133 S.E. 481, 483 (1926).
*892 That statute was replaced in 1946 by the Virginia Land Subdivision Law (Acts 1946, ch. 369), which required that a subdivision plat be prepared by a licensed surveyor or civil engineer, that it be acknowledged by the owners, and that it be approved by the local governing body before recordation. It then provided that the recordation of such a plat would operate to transfer the streets shown thereon to the county or city in fee simple. That statute was replaced in 1962 by the present article 7, containing Code § 15.1-478, quoted above.
Article 7 also includes Code § 15.1-479 which states: "Nothing herein shall be construed as creating an obligation upon any municipality or county to pay for grading or paving, or for sidewalks, sewers, curb and gutter improvements or construction." The Authority argues that this provision protects the county from the consequences of a unilateral dedication to which it had not agreed, rendering harmless the dedicator's failure to obtain governmental approval before recording the plat. We disagree. As we pointed out in Ocean Island Inn, 216 Va. at 477, 220 S.E.2d at 250, a completed dedication imposes upon the public not only the burden of maintenance, which is relieved by Code § 15.1-479, but also of potential tort liability, which is not. Because mere recordation of a properly approved subdivision plat now vests fee simple title in the governing body as to all streets shown thereon, the requirement of prior approval by competent public authority is indispensible. It subsumes and replaces the common-law requirement of acceptance after dedication. It is the only protection the public has against liability thrust upon it, without its knowledge or consent, by a developer. We hold that no statutory dedication occurs unless the requirements of the applicable statutes and ordinances have been complied with.
The Authority argues further that even in the absence of a statutory dedication, a common-law dedication was completed as to the road in question. It contends that the recordation of the plat constituted an offer to dedicate, and that its own entry for the purpose of constructing water and sewer lines constituted an acceptance by implication. It relies upon Greenco Corp. v. Virginia Beach, 214 Va. 201, 198 S.E.2d 496 (1973).
In Greenco, we considered the question of acceptance by implication of a street shown on two subdivision plats, recorded in Virginia Beach in 1900 and 1908. Neither plat met the then statutory requirements for dedication, but both were treated as common-law offers to dedicate, requiring acceptance for completion. We held that an acceptance existed, based upon a formal resolution as to a part of the street and long public user of other parts coupled with repeated acts of dominion over the street exercised by the city and its predecessors. Among the latter were the grant of an electric railway franchise, the construction of a concrete "boardwalk," the installation of lighting fixtures, and the franchising of a utility company to lay gas pipelines within the street. We held that these acts, coupled with the partial formal acceptance, constituted sufficient evidence to support the trial court's finding of an implied acceptance of the street by the governing body.
The Authority's reliance on Greenco is misplaced for two reasons. First, the Authority is neither the governing body of the county nor the Virginia Department of Highways. It lacks the power to accept streets on behalf of the public or to commit other public bodies to pay the costs of construction, maintenance, or potential tort liability. Second, the Authority seeks to employ as evidence of acceptance a use which differs from the offer. As stated above, a common-law dedication is an offer to give the public only a limited user in the landowner's property. For a street, the offer is merely that of a public right of passage. An acceptance, to be valid, must accept the right offered, not a different right. See Anderson v. Water Company, 197 Va. at 36, 87 S.E.2d at 756. The Authority could not, on the one hand, fail to accept the only offer made, a public right of passage with all of its attendant liability, and, on the other hand, purport to accept something *893 never offered to the public, the right to lay water and sewer lines.
In Greenco, the governing body's grant of a franchise to a utility company to lay a gas pipeline in the street was viewed, along with other acts of dominion, as circumstantial evidence that the governing body had impliedly accepted the dedicator's offer, was willing to assume the attendant burdens, and now regarded the road as a public street. The gas company's actual construction work was not treated as evidence of acceptance by the governing body. Here, by contrast, the evidence shows no acts of dominion or implied acceptance by the governing body, but rather, an express refusal of the offer.
Finding neither a statutory nor a common-law dedication, we will reverse the decree appealed from, dissolve the injunction, and remand the cause to the trial court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
NOTES
[*] The deeds also reserved to "the grantors herein, their successors in title, and the present or any future owner or owners of any lots in this or the adjoining subdivision, the right and easement to construct, install, operate and maintain water pipe lines, sewer lines, telephone lines and electric power lines in, on, over and across the land hereinabove conveyed, together with all necessary rights of ingress and egress." The Authority does not contend on appeal that it acquired its rights by virtue of this reservation. Rather, it relies on the trial court's finding that the road in question is a dedicated public road. The question of private rights, if any, accruing to it by virtue of the reservation was neither briefed nor argued on appeal, nor was an adequate record presented to enable us to decide it. Accordingly, we shall not consider this question. Rules 5:21, 5:27, 5:37 and 5:39. See also City of Staunton v. Cash, 220 Va. 742, 746, 263 S.E.2d 45, 48 (1980); Cooley v. Cooley, 220 Va. 749, 753 (n.), 263 S.E.2d 49, 52 (n.) (1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338941/ | 510 S.E.2d 589 (1998)
235 Ga. App. 825
BELL
v.
The STATE.
No. A98A1829.
Court of Appeals of Georgia.
December 18, 1998.
*590 Houston & Golub, Phillip N. Golub, Blackshear, for appellant.
Richard E. Currie, District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.
RUFFIN, Judge.
A jury found Kenneth Bell guilty of one count of statutory rape, one count of incest, one count of child molestation, and two counts of aggravated child molestation. Bell appeals from his convictions, asserting that the trial court improperly limited his right to a thorough and sifting cross-examination. Because the trial court did not abuse its discretion in sustaining the State's objection on relevancy grounds, we affirm.
"Although a defendant has a right to a thorough and sifting cross-examination of the witness ..., the scope of cross-examination is not unlimited, and the extent of examination is largely within the discretion of the trial judge and will not be controlled by an appellate court except for abuse of discretion." (Citation omitted.) Goodrum v. State, 158 Ga.App. 602, 603(1), 281 S.E.2d 254 (1981). Moreover, although "[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value, ... the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court." (Punctuation omitted.) O'Neal v. State, 254 Ga. 1, 3(3), 325 S.E.2d 759 (1985).
At trial, Bell, the victim's stepfather, attempted to question the victim's mother about an incident in which she had been molested by her own stepfather, Roy King. The victim lived with King and her grandmother during much of the five to seven year period in which she alleged that Bell had molested her. Bell argues that since the victim lived part of the time with King, an alleged "child molester," King had the opportunity to molest the victim. The trial court sustained the State's objection to this line of questioning on relevancy grounds.
Upon sustaining the State's objection, the trial court allowed Bell to make a proffer of evidence outside of the jury's presence, at which time the victim's mother testified that King had tried to "touch" her approximately three years earlier when she was 25 or 26 years old. According to the victim's mother, she was asleep on the couch when King, who had been drinking, came home and started watching an x-rated movie. When the victim's mother left the couch, he grabbed her and pulled her onto his lap and tried to touch her between her legs, on top of her clothing.
*591 "Generally, evidence implicating another named individual as the actual perpetrator of the crime is relevant and admissible as tending to exonerate the defendant." Neal v. State, 210 Ga.App. 522, 523(2), 436 S.E.2d 574 (1993). However, to be admissible, the evidence "must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides [the] accused as the guilty person. Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible." (Punctuation omitted.) Id. In that regard, we have previously upheld a trial court's exclusion of evidence that a victim lived with another man who had been charged with molesting another child when there was no showing that this third party may have abused the victim. See Sales v. State, 199 Ga.App. 791, 792(2), 406 S.E.2d 131 (1991). Compare Burris v. State, 204 Ga.App. 806, 809-810(2), 420 S.E.2d 582 (1992) (exclusion of evidence that victim had accused another man of molesting her during the same time period defendant was charged with molesting her constituted reversible error).
In the present case, there is no evidence that King molested the victim. Even if King improperly touched the victim's mother on one occasion, that evidence has no bearing whatsoever on whether he molested the victim. In any event, at the time of this alleged improper touching, the victim's mother was a grown woman, not a child. Most importantly, the victim herself consistently identified Bell as the only person who molested her.
Under these circumstances, we find that the trial court did not abuse its discretion when it excluded, as irrelevant, testimony regarding an unrelated allegation of molestation upon a person other than the victim. Accordingly, we affirm Bell's conviction.
Judgment affirmed.
POPE, P.J., and BEASLEY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338713/ | 419 S.E.2d 1 (1992)
187 W.Va. 337
STATE of West Virginia ex rel. Eric V. JOHNSON and Sandra J. Johnson, his wife, Petitioners,
v.
The Honorable Callie TSAPIS, Judge of the Circuit Court of Brooke County; Hitachi, Ltd., a foreign corporation; and Wheeling-Nisshin, Inc., a corporation, Respondents.
No. 21008.
Supreme Court of Appeals of West Virginia.
Submitted April 7, 1992.
Decided June 1, 1992.
Raymond A. Hinerman, Hinerman & Fahey, Weirton, for petitioners.
Scott W. Blass, Bachermann, Hess, Bachmann & Garden, Wheeling, Brian D. Sieve, Kirkland & Ellis, Chicago, 111., for Hitachi, Ltd., Inc.
*2 Elba Gillenwater, Jr., Seibert, Kasserman, Farnsworth, Gillenwater, Glauser & Richardson, Wheeling, for Wheeling-Nisshin.
WORKMAN, Justice.
Petitioners Eric Johnson and Sandra Johnson seek a writ of prohibition to prevent the enforcement of a protective order issued by the Circuit Court of Brooke County. Having determined that the Honorable Callie Tsapis did not abuse her power in issuing a protective order in the underlying products liability action, we deny petitioners' request for a writ of prohibition.
As a result of a workplace injury sustained by Eric Johnson on October 9, 1989, petitioners instituted a civil action on December 21, 1990, against respondents Wheeling-Nisshin, Inc., Mr. Johnson's employer, and Hitachi, the manufacturer of the product which allegedly caused Mr. Johnson's injuries. In their civil action, petitioners alleged claims based on products liability and breach of warranty. On April 5, 1991, petitioners served their first set of discovery requests on Hitachi seeking work orders, blueprints, technical bulletins, and other diagrams detailing the operation and design of the squeeze roll which allegedly caused Mr. Johnson's injuries.
By letter dated April 26, 1991, Hitachi's counsel informed petitioners' counsel that he objected to producing documents responsive to the discovery requests prior to the entry of an appropriate protective order. Petitioners' counsel indicated to Hitachi's counsel that he did not normally object to protective orders, but would like to see a proposed draft before further comment. After reviewing the proposed protective order prepared by Hitachi, petitioners' counsel stated by letter dated June 19, 1991, that he would not approve the proposed protective order based on his opinion that the order as drafted was "overly broad," but he further indicated that he had "no problem at all with an Order that briefly provides that your trade secrets and confidential information shall remain confidential." In a subsequent letter dated July 8, 1991, petitioners' counsel advised Hitachi regarding the terms to which they would agree. Petitioners would "acknowledge that there may be trade secrets or confidential information which will be provided in the discovery process" and that, following Hitachi's identification of such trade secrets or confidential information, petitioners would agree that such information be kept secure in the circuit court clerk's office.
When the parties could not resolve their disputes regarding the terms of an appropriate order, Hitachi filed a motion with the circuit court on August 9, 1991, seeking the court's entry of a protective order. Following two hearings and the circuit court's review of proposed orders submitted by petitioners and Hitachi, the circuit court issued an order dated December 12, 1991, which adopted verbatim the terms of the protective order drafted by Hitachi. Petitioners seek to be relieved from compliance with the protective order entered by the circuit court.
Like any well-drafted protective order, the order at issue identified which documents or information could be categorized as confidential and the procedurs for designating such documents as confidential. Consistent with cases involving trade secrets, the order limited the use of materials designated as confidential to the underlying lawsuit. Finally, the order provided a mechanism for the parties to bring any objection regarding disclosure of discovery materials to the circuit court for resolution.
Rule 26(c)(7) of the West Virginia Rules of Civil Procedure provides for the issuance of a protective order restricting disclosure of a party's trade secrets and other confidential information:
Upon motion by a party ... and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or a person from annoyance, embarrassment, oppression, or undue burden or expense, including ... (7) That a trade secret or other confidential research, development, or commercial information *3 not be disclosed or be disclosed only in a designated way.
That restrictions may be placed on the use of confidential information disclosed through discovery is well-established.
Even when discovery is allowed, the courts usually impose conditions intended to protect the possessor of the asserted trade secret from use of the secret for purposes other than the litigation, and from wholesale dissemination. Thus, the courts have limited disclosure of the information obtained through discovery to party's counsel and such others necessary for preparation of the action.
4 James W. Moore et al., Moore's Federal Practice ¶ 26.60[4], at 26-214 to -215 (2d ed. 1991) (footnote omitted).
In seeking the writ of prohibition, petitioners rely primarily on the "good cause" requirement of Rule 26(c). Specifically, petitioners assert that Judge Tsapis entered the protective order based solely on "the bald assertions of counsel." In response to this contention, Hitachi posits that the court did not require an evidentiary showing of "good cause" based on its position that petitioners had previously conceded that "much of the information they were seeking constituted trade secrets." Not having a transcript reflecting the proceedings below, we are forced to make a ruling as to the "good cause" showing based on the limited record before us. In reviewing the procedural history of the protective order and its eventual issuance, it appears to this Court that there was little disagreement among the parties regarding the need for a protective order for the purpose of protecting both trade secrets and other confidential information pertaining to the machinery which allegedly caused Mr. Johnson's injuries. From the correspondence between the parties which has been made a part of the record in this case, it is more than apparent that the terms of the protective order rather than the need for its issuance were the focus of the parties' dispute.
In deciding whether the circuit court had proper grounds for entering the protective order, we follow the court's decision in United States v. International Business Machines Corp., 67 F.R.D. 40 (S.D.N.Y.1975), [hereinafter referred to as I.B.M.] to rely on the factors set forth in Section 757 of the Restatement of Torts as a test for determining whether a protective order should be issued with respect to commercial information which may rise to the level of a trade secret. See id. at 46-47. Accordingly, the following six-factor test should be applied in determining whether there is "good cause" pursuant to Rule 26(c)(7) of the West Virginia Rules of Civil Procedure to issue a protective order:
(1) the extent to which the information is known outside of the defendant's business;
(2) the extent to which it is known by employees and others involved in the defendant's business;
(3) the extent of the measures taken by the defendant to guard the secrecy of the information;
(4) the value of the information to the defendant and competitors;
(5) the amount of effort or money expended by the defendant in developing the information; and
(6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
See I.B.M., 67 F.R.D. at 47.
While not submitted in evidence at the circuit court proceedings, Hitachi has submitted the affidavit of one of its engineers in an ex post facto attempt to show compliance with the I.B.M. standard. The affidavit of Mr. Hitoshi Ohkoshi avers that:
(1) the design drawings and other information Petitioners seek are not publicly available and are not known to anyone outside of Hitachi and Wheeling-Nisshin, both of whom are required to maintain them in confidence;
(2) only a limited number of Hitachi personnel know the contents of the documents at issue;
(3) Hitachi has taken numerous substantial, explicit, and costly steps to maintain the confidentiality of the documents in question;
*4 (4) the information is of great economic value both to Hitachi and its competitors;
(5) Hitachi has expended considerable sums of money over the course of thirty years developing the information its seeks to protect; and
(6) the information in question cannot be acquired or duplicated by others without substantial expenditures of capitol and resources.
The information contained in the Ohkoshi affidavit addresses each of the elements of the six-part I.B.M. standard which we have adopted as the test for the "good cause" requirement of Rule 26(c). The fact that this affidavit was not introduced in evidence in the proceedings below is of little or no moment since this Court remains firm in its opinion that the dispute brought to the circuit court centered not on the need for the issuance of a protective order, but on the terms of a protective order. Nonetheless, the Ohkoshi affidavit satisfies any lingering question that Hitachi has established the "good cause" prerequisite for obtaining a protective order.
As an additional ground for seeking a writ of prohibition, petitioners assert that the protective order as entered by the circuit court is burdensome. Petitioners' primary objection on the grounds of burden appears to be the aspect of requiring petitioners' expert witnesses to comply with the terms of the protective order. What petitioners are really complaining about is the requirement that they first disclose to Hitachi the identity of any expert witness whom they wish to provide access to information which qualifies as confidential or super-confidential pursuant to the protective order and the further requirement that the expert witness not disclose such information nor make copies of such information except as needed for trial purposes. The order seeks to permit the identification of confidential and trade secret information and to prevent that information from being disseminated for use other than in connection with the underlying civil action. Numerous courts have recognized the discretion imposed on a trial court to place limitations upon the disclosure of trade secrets or other confidential information. See 4 Moore et al., supra ¶ 26.75 at 26-486 to 488 and cases cited therein; Harris v. Amoco Prod. Co., 768 F.2d 663, 684 (5th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1186, 89 L.Ed.2d 302 (1986) (upon a showing of " `good cause,' the presumption of free use dissipates, and the district court can exercise its sound discretion to restrict what materials are obtainable, how they can be obtained, and what use can be made of them once obtained"). While the protective order is unquestionably drafted in legalese and is therefore more verbose than necessary, we find petitioners' objection that the protective order is burdensome to be meritless.
In approving the protective order at issue, we note that the order provides a mechanism to resolve any disputes regarding whether a particular document is subject to the terms of the order. The order clearly states that upon objection by the non-producing party, any dispute regarding disclosure is to be resolved by court order. Having fully reviewed this procedural matter, we can find no evidence that the circuit court abused its discretion in issuing the protective order.
For the reasons stated in this opinion, the writ of prohibition requested by petitioners is hereby denied.
Writ denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338521/ | 96 Ga. App. 192 (1957)
99 S.E.2d 541
COPPAGE
v.
KING.
36739.
Court of Appeals of Georgia.
Decided June 18, 1957.
Rehearing Denied July 11, 1957.
*194 Johnson, Hatcher & Meyerson, for plaintiff in error.
Hamilton Douglas, Jr., Haas, White & Douglas, contra.
TOWNSEND, J.
1. It is contended by the plaintiff in error that the description of the property above quoted as contained in the contract of sale shows an intention to sell and purchase by the tract, and that accordingly the case is controlled by Code § 29-201 as follows: "In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. If the sale is by the tract or entire body, a deficiency in the quantity sold cannot be apportioned. If the quantity is specified as `more or less,' this qualification will cover any deficiency not so gross as to justify the suspicion of wilful deception, or mistake amounting to fraud; in this event, the deficiency is apportionable; the purchaser may demand a rescission of the sale or an apportionment of the price according to relative value." The plaintiff in error contends that because the description of the *195 property begins with the printed form "All that tract of land" and because it contains at the end the words, "better known as 5915 Greenbrier Road," that the defendant agreed to purchase this address regardless of the courses and boundaries stated in the sale contract. This contention is not tenable for the reason that the boundaries of the lot, as to the distances in feet, are not merely descriptive terms of a sale of land in gross but are an integral part of the contract. Code § 29-202 provides: "If the purchaser loses part of the land from defect of title, he may claim either a rescission of the entire contract, or a reduction of the price according to the relative value of the land so lost." In Holliday v. Ashford, 163 Ga. 505 (136 S.E. 524), s.c., 169 Ga. 237 (149 S.E. 790), it was held that the two Code sections must be construed together where one sells to another a city lot described in the bond for title by courses and distances, and where it appears upon subsequent survey that the front footage is 5 1/2 feet less than the described measurement of 196.1 feet, that in such event "it would seem that where the purchaser loses part of the land from a defect in the title, or where there is a deficiency in land sold by the tract, he may sue for a rescission of the contract of sale in a proper case." The plaintiff there obtained a rescission of the contract. In Foute v. Elder, 109 Ga. 713 (35 S.E. 118) a city lot was described in a bond for title as having a depth of 160 feet where in fact it had a depth of only 143 feet. There the buyer sought and obtained an abatement in the purchase price pro tanto, the court holding, headnote 1: "A bond for titles to a tract of land, described as being within certain boundaries and measuring a certain number of feet in width and in depth binds the obligor to make title to the entire tract so described; and if he has no title to a portion of it, this is a breach of the bond, although he did not have title to such portion at the time the bond was executed."
In Norris v. Coffee, 206 Ga. 759 (1) (58 S.E.2d 812) it was held: "Where a purchaser loses part of the land purchased, from a defect in the title, or where there is a deficiency in land sold by the tract, he may sue for rescission of the contract of sale or for a reduction in the purchase price. Code § 29-202; Riehle v. Bank of Bullochville, 158 Ga. 171 (123 S.E. 124); Roberts v. Wilson, *196 153 Ga. 538 (112 S.E. 451); Holliday v. Ashford, 163 Ga. 505 (136 S.E. 524). See also Dorsett v. Roberds, 172 Ga. 545, 552 (7) (158 S.E. 236); O'Farrell v. Willoughby, 171 Ga. 149 (154 S.E. 911); Miller v. Minhinnette, 185 Ga. 490, 494 (3) (194 S.E. 425); Martin v. Peacock, 171 Ga. 219 (155 S.E. 182)." The descriptions of the land involved in each of the above cases begin with the words "all that tract or parcel of land," and in the Norris case (as shown by examination of the record) wherein it was contended that there was a deficiency of 21 feet in a stated front footage of 150 feet, the description of the boundaries of the lot by courses and distances concludes with the words, "there being located on said lot a dwelling known as No. 207 Fifth Avenue." Accordingly, under the decisions in these cases, it follows that the defendant was entitled to rescind the contract of sale because the vendor was unable to furnish him a marketable title to the land which he agreed to purchase, and which was described in the contract of sale between the parties. There being no conflict of fact regarding this controlling point, it was proper for the trial court to direct a verdict in favor of the defendant.
Of the many cases cited in the excellent brief of the plaintiff in error, most have to do with the question of whether the purchaser was buying by the tract or by the acre, and it is true that where land is bought in gross, a statement that the tract contains a given number of acres is a matter of description only, but this rule has no application where a given quantity of land is described and the seller does not have title to the land within the boundaries stated in the contract. If anything contrary to what is here held appears in Land Trust Co. v. Morgan, 22 Ga. App. 388 (95 S.E. 1006) it must yield to the Supreme Court decisions above cited. However, careful reading of the Morgan case reveals that it was controlled by certain features peculiar to the description contained in the bond for title in that case which do not appear in the description in the contract of sale in this case the description was drawn in reference to a plat, which plat showed the true dimensions of the lot, and the description was also drawn in reference to the lands adjoining its boundaries, so that the court there applied the rule that courses and distances *197 and computed contents must yield to ascertained boundaries and monuments.
2. The parol testimony of the plaintiff that he told the defendant that the lot depth was "approximately" 200 feet can in no way change or alter the description in the contract of sale which calls for exactly 200 feet. The dimensions of the lot are not stated in the contract as so many feet "more or less" but as so many feet exactly. The language in the contract of sale as follows: "The buyer and seller waive legal description until time of closing" cannot be considered either as a waiver or a modification of that part of the description of the land under which the seller agrees to furnish marketable title to a described lot of land "200 feet deep on both sides." Accordingly, neither this testimony nor these words in the contract can alter the legal conclusion above reached.
3. "Proof that the obligee in the bond for titles knew or had an opportunity to learn that the obligor was not the owner of the entire tract described in the bond does not relieve the obligor of the consequences of his breach, it not appearing that there was any mistake in the description given in the bond." Foute v. Elder, 109 Ga. 713 (2), supra. Accordingly there was no obligation on the defendant purchaser to ascertain in advance that the seller had title to the land warranted in the contract of sale, as contended by the plaintiff in error.
The trial court did not err in granting the motion for a directed verdict.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338523/ | 99 S.E.2d 772 (1957)
246 N.C. 587
STATE
v.
John Hughes WHITE.
No. 77.
Supreme Court of North Carolina.
September 18, 1957.
*773 George B. Patton, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.
Charles L. Abernethy, Jr., New Bern, and Larkins & Brock, Trenton, for defendant appellant.
DENNY, Justice.
The sole question presented by the appellant in his brief is whether or not the Superior Court of Craven County had jurisdiction to try this case.
Craven County is one of our counties in which exclusive original jurisdiction of general misdemeanors is vested in its inferior courts. State v. Sloan, 238 N.C. 547, 78 S.E.2d 312; State v. Morgan, N.C., 99 S.E.2d 764; G.S. § 7-64. Consequently, any jurisdiction the Superior Court of Craven County obtains in such cases is derivative. State v. Patterson, 222 N.C. 179, 22 S.E.2d 267; State v. Thomas, 236 N.C. 454, 73 S.E.2d 283.
The case on appeal does not show jurisdiction in the Superior Court. Hence, nothing else appearing, the appeal would be dismissed. State v. Banks, 241 N.C. 572, 86 S.E.2d 76; State v. Morris, 235 N.C. 393, 70 S.E.2d 23; State v. Thomas, supra; State v. Patterson, supra. However, the Attorney General filed a motion in this Court suggesting a diminution of the record. The motion was allowed and we now have before us a certified copy of the original warrant dated 24 February 1956, returnable before the Craven County Recorder's Court, charging that the defendant, on or about 24 February 1956, did (1) operate a motor vehicle upon the public highways of North Carolina after his operator's license had been revoked; (2) operate a motor vehicle upon the public highways of North Carolina while under the influence of intoxicants or narcotics, it being the second offense; and (3) drive a motor vehicle in a careless and reckless manner. A certified *774 copy of the minutes of the Recorder's Court with respect to the disposition of this case, which the Attorney General brought here pursuant to his motion, is to the effect that on 19 March 1957 a jury was demanded and a bond fixed in the sum of $500. This made it incumbent upon the Recorder of said court to transfer the case to the Superior Court of Craven County for trial pursuant to the provisions of Chapter 115, Public Laws of 1929, the pertinent part of which reads as follows: "In all trials in the Recorder's Court for Craven County, upon demand for a jury by the defendant or the Prosecuting Attorney representing the State, the Recorder shall transfer such trial to the Superior Court of Craven County, and the defendant shall execute a new bond in such amount as named by the Recorder for his appearance at the next term of the Superior Court for Craven County." When a case is transferred to the Superior Court pursuant to the provisions of this or a similar statute, the trial in the Superior Court must be upon a bill of indictment. State v. Norman, 237 N.C. 205, 74 S.E.2d 602; State v. Bailey, 237 N.C. 273, 74 S.E.2d 609; State v. Pitt, 237 N.C. 274, 74 S.E.2d 608; State v. Owens, 243 N.C. 673, 91 S.E.2d 900.
We likewise have before us a certified copy of a bill of indictment found by the Grand Jury at the April Term 1957 of the Superior Court of Craven County, in which the three counts appearing in the warrant are included in the bill, but the time of the alleged commission of these offenses is stated as 24 February 1957. Moreover, this bill does not show the drunk driving violation set out therein as being a second offense, as alleged in the warrant.
When this case was called for trial, counsel for defendant moved to quash the bill on the ground that the alleged violations, according to the original warrant, occurred on 24 February 1956 and not on 24 February 1957, as alleged in the bill of indictment. The trial judge denied the motion, continued the case, and suggested that the Solicitor procure a new bill since the date appearing in the bill might have considerable bearing on the count charging the defendant with driving a motor vehicle upon the public highways of the State after his operator's license had been revoked. A new bill was obtained as hereinabove set out. The Attorney General also brought up, pursuant to his motion, a certified copy of a stipulation entered into by the Solicitor and counsel for the defendant, in open court in the trial below, to the effect that the warrant and both bills of indictment involve the same set of facts.
In light of the above facts, the defendant contends that, since the warrant alleged only a second offense with respect to the charge of drunk driving, while the bill of indictment alleged such violation to be a third offense, he is entitled to a new trial.
In the case of State v. Miller, 237 N.C. 427, 75 S.E.2d 242, 243, the bill of indictment did not allege that either of the offenses charged was a second or subsequent offense. The defendant entered a plea of guilty. It was then determined that he had been convicted four or five times theretofore on similar charges. The court, therefore, proceeded to pronounce judgment as provided in G.S. § 90-111 for subsequent offenses. Upon appeal to this Court we held that, "Where a statute prescribes a higher penalty in case of repeated convictions for similar offenses, an indictment for a subsequent offense must allege facts showing that the offense charged is a second or subsequent crime within the contemplation of the statute in order to subject the accused to the higher penalty." The conviction was sustained on both counts but the cause remanded for a judgment on each count not in excess of that prescribed by G.S. § 90-111 for a first offense.
In State v. Stone, 245 N.C. 42, 95 S.E.2d 77, 78, the defendant was tried upon a bill of indictment charging that on 13 July 1956 he "did unlawfully and willfully drive a motor vehicle upon the public highways *775 within the County and State aforesaid while then and there being under the influence of intoxicating liquor or narcotic drugs, same being his third offense he having been convicted thereof in the County Criminal Court of Lee County, N. C., at Sanford, N. C., on the 10th day of January, 1950, and in the County Criminal Court of Lee County, N. C., at Sanford, N. C., on the 10th day of April, 1956 * * *." The State, over objection by the defendant, was permitted to introduce in evidence the record of the County Criminal Court of Lee County tending to show that on 10 January 1950, the defendant entered a plea of nolo contendere to a charge of "drunk driving" and judgment was pronounced thereon. We held "the admission in evidence of the record of the plea of nolo contendere entered 10 January, 1950, was prejudicial error. Since it did not support the allegation as to a prior conviction on 10 January, 1950, evidence offered initially by the State tending to show that the defendant had been previously charged with an unrelated prior criminal offense and of the disposition thereof under plea of nolo contendere was incompetent." Consequently, a new trial was granted.
In the instant case there is no contention that any incompetent evidence was introduced to establish the previous convictions on similar charges of "drunk driving." The defendant testified that he had been previously convicted on the occasions alleged in the bill of indictment. Hence, in our opinion, the verdict of guilty for driving a motor vehicle upon the public highways of the State while under the influence of an intoxicating liquor should be sustained. G.S. § 20-179, with respect to second, third, and subsequent offenses relates only to punishment. Therefore, we hold that the Superior Court of Craven County had jurisdiction to try the offense charged under G.S. § 20-138. No more evidence is required to convict a defendant for "drunk driving" pursuant to the provisions of G.S. § 20-138 for a second, third, or subsequent offense than is required for a conviction for a first offense, the only difference being that the State in such cases is required to allege and prove the second, third, or subsequent offenses before it is entitled to subject the accused to the higher penalty. Furthermore, in such cases, the defendant is entitled to know whether or not the State is seeking to exact a higher penalty because of a previous conviction or convictions.
Even so, the jurisdiction of the Superior Court was derivative and it had no power to impose a penalty greater than that provided for a second offense, since the violation charged in the original warrant alleged such violation as being a second offense. State v. Miller, supra. It is true that under the provisions of G.S. § 20-179 a penalty as great as that inflicted in the court below might be imposed for a first or second offense. State v. Stone, supra. However, it appears from the judgment entered in the court below that his Honor took into consideration this conviction as being a third offense in determining what sentence should be imposed. Consequently, the judgment on the second count is hereby set aside and the cause is remanded for sentence as for a second offense as provided in G.S. § 20-179. We find no error in the verdict on the first count; however, the court below will designate when the sentence thereon is to begin in relation to the new sentence or judgment that will be imposed in accord with this opinion.
Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338526/ | 231 S.C. 429 (1957)
99 S.E.2d 39
JAMES F. TATE, Plaintiff-Respondent,
v.
H.G. LeMASTER, Defendant-Appellant.
17314
Supreme Court of South Carolina.
June 24, 1957.
*430 *431 Arnold R. Merchant, Esq., of Spartanburg, for Appellant.
Claude R. Dunbar, Esq., of Spartanburg, for Respondent.
*432 June 24, 1957.
LEGGE, Justice.
In an action to recover the sum of five hundred ($500.00) dollars paid by the plaintiff to the defendant in a transaction relating to the purchase and sale of real estate, plaintiff obtained a verdict for that amount, with interest; and the defendant appeals.
Except for (1) respondent's check evidencing the payment, and (2) appellant's receipt therefor, the transaction between the parties was verbal; and the evidence as to its terms was, to say the least, conflicting. It appears undisputed that appellant owned and resided on a tract of some twenty-three acres in Spartanburg County, known as Mimosa Lake. He kept the lake stocked with fish, and rented to all comers the right to fish therein. Among his customers was the respondent, whose version of the transaction between them is set forth in his amended complaint substantially as follows:
On November 5, 1955, defendant offered to sell the Mimosa Lake property to plaintiff for $11,000.00, agreeing to give the plaintiff through November 10, 1955, to decide whether or not he would take it, and also agreeing that plaintiff should make a "down payment" of $500.00, which would be refunded in the event that he should decide not to take the property and should so inform the defendant on November 10. Plaintiff made said "down payment"; and thereafter, having decided not to take the property, went to the *433 defendant's home on the morning of November 10 to so inform him, and, finding no one there, went again on the following day and then and there informed the defendant that he would not take the property, and asked for the return of his $500.00. Defendant did not at that time refuse to return the money, but merely told plaintiff that he would see him later. Thereafter, following another visit from the plaintiff, defendant on or about November 26, 1955 informed the plaintiff that, having had legal advice, he had decided to consider their trade closed and the money forfeited. Plaintiff alleged that by reason of these facts defendant was indebted to him in the amount of $500.00, with interest from November 11, 1955; and judgment in that amount was prayed.
The defendant's version is set forth in his amended answer as follows:
"1. That the defendant offered to sell to the plaintiff the property described in the Complaint for the sum of Eleven Thousand ($11,000.00) Dollars and that the plaintiff agreed to purchase the said property and to pay therefor the sum of Eleven Thousand ($11,000.00) Dollars and to bind the trade the plaintiff paid to the defendant, the sum of Five Hundred ($500.00) Dollars to be applied to the purchase price of the property or to be forfeited to the defendant if the plaintiff failed to comply with his contract to purchase the said property.
"2. That the defendant gave to the plaintiff a receipt for the Five Hundred ($500.00) Dollars at the time the trade was consummated. That the said receipt is made a part of this Answer as fully and as completely as it is copied in full herein. That the defendant has at all times been ready and willing to comply with the terms of the contract to sell and has acquainted the plaintiff with such facts. The plaintiff notified the defendant that he was not going to comply with the terms of his contract and told the defendant that he, the plaintiff, knew that he was forfeiting the Five Hundred ($500.00) Dollars that he had paid to the defendant to bind *434 the contract. The plaintiff further stated to the defendant that he knew that under the law he could not collect the Five Hundred ($500.00) Dollars he had paid or any part thereof."
The prayer of the answer is that the complaint be dismissed with costs, "and that the Five Hundred ($500.00) Dollars heretofore paid to the defendant by the plaintiff be declared by the Court as forfeited to the defendant, and for such other and further relief as to the Court may seem just, equitable and proper."
The respondent's check, in evidence, is in the amount of $500.00, dated November 5, 1955, and payable to the order of the appellant. It bears the payee's endorsement, and is perforated as paid by the drawee bank under date November 7, 1955. The receipt in evidence, dated November 5, 1955 reads:
"Received of J.F. Tate 500 and No/100 Dollars.
"Down Payment on Mimosa Lake.
"H.G. LeMaster"
It appears that respondent, having learned that the property was for sale, went there with his wife on Saturday, November 5, 1955. To quote from his testimony:
"Q. When you and your wife got back down at the lake, who did you find in the yard? A. We found him.
"Q. You mean the defendant? A. That's right.
"Q. What conversation took place there? A. I asked him what he asked for it. He said `$12,000.00.' I said, `Wouldn't you take eleven thousand from me?' He says, `I might do it'. Well, I says, `Look give me till Thursday night to make up my mind, and I'll give you a 500-dollar check and if I decided to keep the place, keep it. But if I don't by Thursday night I'll check and see if I can buy the place and if not, you give me my check back.' He says, `That's fine'."
Respondent testified further, that following the conversation just mentioned he and his wife and appellant went into the latter's house, where were appellant's wife and a younger *435 couple (appellant's son and daughter-in-law); that they "laughed and talked", and that respondent told appellant that if he should decide to take the place he could not take it over until March, and would like appellant to stay there until then; that he told appellant he "would let him know by Thursday"; and that he then gave appellant his check and was given the receipt before mentioned, which had been written by the young man. To quote further:
"Q. Mr. Tate, was there any further conversation relative to this matter that you can recall that you have not stated, on this first occasion of November 5, 1955? A. Well, nothing any more than I can remember I asked him to hold the place for me until Thursday night and I would give him a down payment of $500.00 check and if I decided not to take it, he would give it back to me Thursday.
* * *
"Q. What did he say after you told him you wanted to do that? A. He said sure, he would give it back to me. It would be fine.
"Q. Now, Mr. Tate, when was it that you said that you had, until what day, to let him know? A. Thursday.
"Q. Was that the Thursday following November 5? A. Following, yes sir."
Respondent's testimony with regard to the transaction of November 5 was corroborated by that of his wife. So far as it concerned agreement between him and appellant that he should have until the following Thursday (November 10) in which to decide whether or not to take the property, and that should he decide not to take it and so notify appellant on or before November 10 his payment of $500.00 would be refunded, it was flatly contradicted by the testimony of appellant and his wife, his son, and his daughter-in-law, all of whom testified that the deal was closed on November 5, that the words "Down payment on Mimosa Lake" were inserted in the receipt at respondent's request, and that nothing was said to the effect that he should have until the following Thursday to make up his mind concerning the purchase.
*436 As to subsequent events, respondent testified as follows:
On Thursday, November 10, he went to appellant's house about 10:00 o'clock in the morning, for the purpose of telling him that he would not be able to purchase the property, and of getting his money back; but he found no one there. The next day, Friday, he went again, about 7:00 o'clock in the evening, and finding appellant at home, told him that he would not be able to take the place, and asked if he would give him back his check. Appellant made no reply, and respondent left. About a week later, respondent returned, told appellant again that he couldn't take the place and that he would like to have his check back, and asked appellant what he was going to do about it, to which the latter replied that he hadn't made up his mind, and that when he did he would let respondent know. Respondent did not see appellant again, but received a letter from him dated November 26, 1955, reading as follows:
"Dear Mr. Tate:
"I have had legal advice on the matter and have decided to consider our deal closed with your money forfeited.
"Sincerely,
"H.G. LeMaster".
Respondent admitted that on November 30, following receipt of the letter of November 26 just mentioned, he wrote to appellant as follows:
"Mr. LeMaster:
"Dear Sir:
"I received your letter today and was very much disappointed in your decision in regard to the money.
"I'm most sure you will find your legal advice is wrong. As you know I have an option on your place signed by you. It doesn't state that I have to take the place at any certain date.
"Therefore, if you refuse to give me my money back, you will not be able to sell the place.
"I told you that Saturday that I would let you know the following Thursday if I would or would not take the place.
*437 "I came down there Thursday and no one was home so the next day (Friday) I came back and told you I would not take the place. The interest starts on that money at that date. As for legal advice, have also got that too.
"Some of your friends that you have been asking advice from are my friends, too, and they have been telling me.
"Just bear in mind I have friends also and they tell me that I offered you more than a fair proposition of which I knew. Of course, that is one thing that I always try to do.
"I considered you one of my best friends and am really hurt over the way you have done about the money.
"Am very sorry that I'm going to have to turn it over to a lawyer to handle from now on.
"J.F. Tate"
As to the events subsequent to the transaction of November 5, testimony on behalf of the appellant was as follows:
Appellant and his wife testified that they were at home on the morning of Thursday, November 10, at ten o'clock, and remained there until shortly after noon, when they went to a nearby town; and they returned about four o'clock in the afternoon. Mr. Tate did not come to their place that day at any time when they were there. They also testified that on Friday, November 11, Mr. Tate came to their home and said that he had come to tell them that he couldn't take the place because of his wife's health. On that occasion he did not ask for the return of his money, but appellant sensed that that was on his mind. About a week later respondent came back and talked with appellant, whose wife was in the next room and heard their conversation. At that time respondent said that he couldn't take the property, that it was out of the question, that he couldn't make it. According to appellant's testimony at this point, respondent did not ask for the return of his money, but appellant said to him: "Mr. Tate, you understand in a case of this sort your money is forfeited?" To this respondent replied: "Yes, I know I couldn't get my money by law. It isn't your error; it's mine, but my wife was pushing me. I do think, though, through *438 friendship that you ought to give me four hundred dollars back". Appellant's testimony continued:
"And I didn't see it his way, and we talked on for a while, and he went to leave, and he told me to study over it and he would come back down and see if I didn't make up my mind that I ought to give him four hundred dollars back. And I said, `No, there ain't no use for you to come back down. I'll let you know if I decide to give it back to you'. And I came and talked to you (appellant's counsel) about it and on Sunday afterwards my son was down here and I told him to write a note and tell him that under the circumstances I had legal advice and I considered the deal closed and his money forfeited".
Appellant's wife's recollection of the conversation was that respondent asked appellant to refund his money, and appellant replied: "Well, you realize in a case like this, when you make a down payment on a piece of property and don't take it up, and come up to your contract, that, you know, you have forfeited your money". And that respondent had said that he realized that, but did wish he would give him three or four hundred dollars back.
Respondent categorically denied that he had told appellant that he realized that he could not get his money back, and that it was his error and not that of appellant. He testified that he had told appellant, when he went to see him on Friday, November 11, that in order to avoid trouble and litigation he would be willing to let appellant keep one hundred dollars if he would return the other four hundred.
Three other witnesses testified, to wit: Audrey L. Steppe, respondent's uncle by marriage, who had accompanied respondent to the lake on Sunday, November 6, to "look around", and Boyce Chapman and his brother Curtis Chapman, who on that day were at the lake, fishing. The Chapmans testified that on that occasion respondent, in conversation with them, said that he had bought the lake, and that they could continue to fish there. Prior to their testifying, respondent, *439 on cross examination, had testified that he had seen the Chapmans there that day, but had not spoken to them. Mr. Steppe took the stand for respondent, in reply, and testified that on the occasion in question he was talking to Curtis Chapman, whom he had known for many years; that Chapman told him that the appellant had told Chapman that he was about to sell out; that Steppe then pointed to respondent, saying that he was the man who was planning to buy the place; and that Steppe then introduced Chapman to the respondent, who merely acknowledged the introduction and made no statement to the effect that he had bought the lake.
Exception 1 assigns error in allowing respondent to testify that the purpose of his going to appellant's house on Thursday, November 10, was to tell him that he would not be able to take the property, and to get his money back. There is no merit in this exception.
In the first place, neither it nor the objection interposed when the question was asked specifies the ground upon which it is contended that this testimony is inadmissible. Moreover, it seems to us that the testimony was not objectionable. A very material element of the agreement between the parties, according to respondent's testimony, was that which required him, in the event that he should decide against the purchase and wish to have his money refunded, to so notify the appellant on or before Thursday, November 10. The purpose of his visit on that day was a material fact to be proven, and it was competent to prove it by the direct testimony of the respondent himself. McGhee v. Wells, 57 S.C. 280, 35 S.E. 529; Dill v. Lumbermen's Mutual Insurance Co., 213 S.C. 593, 50 S.E. (2d) 923.
Exception 2 charges that the trial judge erred "in allowing plaintiff's counsel to put in issue the reputation of plaintiff's employer who was not a party to this action". In the course of his cross examination of appellant's witness Curtis Chapman, respondent's counsel asked the witness if he knew the Fiske-Carter Construction Company *440 (by whom respondent had testified that he had been employed for many years), to which the witness replied that he knew of that company. Counsel then asked: "And don't you know that is one of the most reputable firms in our county?" Thereupon appellant's counsel objected upon the ground that the matter was irrelevant; the court overruled the objection; and the question was never answered. We need not decide whether, in view of the wide latitude permitted counsel in cross examination, the question was technically objectionable; suffice it to say that even if it was, the allowance of it does not, in the circumstances, warrant reversal.
Exceptions 3 and 4, which charge, respectively, that the court erred "in allowing plaintiff's attorney to ask questions that suggested the desired answer over the objection of the defendant", and "in allowing the plaintiff's attorney to introduce new matter in his reply testimony over defendant's objection", are too general and indefinite to be considered. Cf. State v. Jenkins, 228 S.C. 12, 88 S.E. (2d) 770.
By Exception 12 appellant contends that the trial judge erred in charging the jury that "voluntary absence of one party from the place assigned for performance is equivalent to a refusal to perform and excuses the other party in suspending preparation for performance on his part whenever such suspension would be the natural effect or (of?) just and reasonable inference drawn by the latter from his absence and the attendant circumstances." The principle thus stated is corollary to the general rule that a party to a contract cannot avoid liability upon the ground that the other party has not fulfilled a condition precedent to such liability when he himself has prevented such fulfillment. 12 Am. Jur., Contracts, Section 329, p. 885. Appellant does not question its correctness as a proposition of law; but he contends that it was inapplicable and misleading. Under respondent's theory of the contract, return of his deposit was conditioned upon his notifying appellant on or before November *441 10 that he would not buy the property; and he argues that the charge complained of was pertinent to the issue of whether or not in the circumstances his failure to give such notice until the following day was justified. But actually there was no such issue. Appellant made no question of the timeliness of the notice; his position was simply that the deal had been closed on November 5. In our opinion, therefore, the portion of the charge quoted above was erroneous, but harmlessly so.
The remaining exceptions all relate to the charge, assigning error on the part of the trial judge:
(a) In failing to charge that the plaintiff's payment of deposit of $500.00 was liquidated damages (Exceptions 5 and 14);
(b) In failing to instruct the jury that no question of forfeiture was involved (Exception 13); and
(c) In charging the law with regard to forfeitures (Exceptions 6, 7, 8, 9, 10 and 11).
It is commonly stipulated in land contracts that a payment or payments made by one of the parties to the other shall be retained by the recipient in the event of default by the party making such payment or payments. Whether such a stipulation is one for liquidated damages or for a penalty is, of course, primarily a matter of the intention of the parties. Implicit in the meaning of "liquidated damages" is the idea of compensation; in that of "penalty", the idea of punishment. Thus, where the sum stipulated is reasonably intended by the parties as the predetermined measure of compensation for actual damages that might be sustained by reason of nonperformance, the stipulation is for liquidated damages; and where the stipulation is not based upon actual damages in the contemplation of the parties, but is intended to provide punishment for breach of the contract, the sum stipulated is a penalty.
If it be clear that the stipulation is for liquidated damages, breach of the contract will generally entitle the offended party to retain or recover the sum stipulated, *442 and neither more nor less, without proof of damage actually sustained; but the language used by the parties is not conclusive of the question of whether the stipulation is for liquidated damages or for penalty. Ould v. Spartanburg Realty Co., 94 S.C. 184, 77 S.E. 866. And where the sum stipulated is so large that it is plainly disproportionate to any probable damage resulting from breach of the contract, the stipulation will be held one for penalty, and not for liquidated damages, regardless of its terminology. 15 Am. Jur., Damages, Section 249, p. 681; Pembroke v. Caudill, 160 Fla. 948, 37 So. (2d) 538, 6 A.L.R. (2d) 1395. And see annotation following the cited case, in 6 A.L.R. (2d) at pages 1402 et seq.
If the provision be for a penalty, recovery is measured not by the sum stipulated, but by the amount of actual damage proven to have been sustained as the result of the breach. 25 C.J.S., Damages, § 116b, p. 704.
A forfeit, or forfeiture, is "that which is lost, or the right to which is alienated, by a crime, offense, neglect of duty, or breach of contract". Webster's New International Dictionary, Second (1954) Edition. Basically, therefore, the loss by the offending party of his right to the sum deposited under a stipulation in a contract, whether the stipulation be for liquidated damages or for penalty, is a forfeiture: but as applied to such a contractual provision the words "forfeit" and "forfeiture" have long connoted "penalty", rather than "liquidated damages". It has been said that the use of the word "forfeit" indicates that the parties regarded the sum stipulated as a penalty, and, in the absence of other provisions evidencing a contrary intention, stamps the stipulation as one for a penalty rather than for liquidated damages. 15 Am. Jur., Damages, Section 248, p. 680; Van Buren v. Digges, 11 How. 461, 13 L. Ed. 771. But here again terminology is not a dependable guide; and intention of the parties must, in the final analysis, govern construction of the stipulation. See annotation following Evans v. Moseley, *443 1911, 84 Kan. 322, 114 P. 374 in 50 L.R.A., N.S., 889, at pp. 890 et seq.
In the case at bar the trial judge, in his main charge said:
"Now, the plaintiff in this case takes the position that he paid five hundred dollars as a down payment on that purchase price, and that there was a verbal condition attached to the contract, that he was to have until Thursday following that date to make up his mind as to whether or not he would take the property. Now, the defendant in the case denies that there was any such condition attached to the contract. And he takes the position that the five hundred dollars payment was paid as a good faith binder, and was forfeited, and that there was no condition, no verbal condition, attached to the contract.
"Now, gentlemen, a contract may provide for forfeiture of an amount as liquidated damages. I say contract may provide for that. Now, it depends on what the contract was, or, as in this case, as to whether or not that is the situation here. I say as a general proposition, contracts may provide for a forfeiture or for some set amount prescribed to be forfeited in the event of noncompliance of the contract and it is a common matter for such matters to be made the subject of contract. It is a matter, of course, which depends upon the particular contract involved as to whether that be the case or not here".
Above quoted is all of the main charge stating the issues in the case and relating to the deposit or payment. It is superficial, and obviously uses the words "forfeited" and "forfeiture" in their basic meaning, without distinction as between liquidated damages and penalty. But when the trial judge, at the close of his main charge, asked if further instructions were desired, appellant did not suggest that the issues had been misstated, nor did he request amplification or clarification of the charge with respect to liquidated damages, penalty, or forfeiture. He cannot, therefore, now complain as to either of such matters. Brown v. Hill, 228 S.C. 34, 88 S.E. (2d) 838.
*444 At the conclusion of the main charge, the jury having been excused, respondent's counsel requested that they be instructed as to certain rules of law applicable to forfeitures, e. g., that they are not favored either in law or in equity, that every reasonable presumption is against a forfeiture, that where a contract is susceptible of two constructions that which will prevent a forfeiture should be adopted, etc. It is manifest that the propositions of law which the trial judge was thus requested to charge (and which he did charge upon the jury's return to the courtroom) dealt with the term "forfeiture" in the sense of "penalty" as distinguished from "liquidated damages". But it does not appear from the record that either during or after the discussion of them in the absence of the jury any request was made on the part of the appellant for clarification of the term, or for explanation of the distinction between liquidated damages and penalty. And by none of his exceptions does appellant contend that this distinction should have been explained to the jury, or that the charge on forfeiture as made at respondent's request was an incorrect statement of the law. The sole assignment of error under Exceptions 7, 8, 9, 10 and 11 in regard to the charge on forfeiture is that it should not have been made at all because no question of forfeiture was involved.
Exception 6 charges that the trial judge erred "in construing the five hundred dollars deposited by the plaintiff to bind the contract as a forfeiture rather than liquidated damages"; but examination of the charge as hereinbefore quoted shows that the trial judge did not construe the deposit at all, leaving it to the jury to determine what the contract between the parties was. And this exception is also without merit so far as it may relate to the supplemental charge on forfeiture, because there the trial judge merely stated abstract principles of law, the correctness of which is not challenged, and did not construe or even mention the deposit in question.
Exceptions 7, 8, 9, 10 and 11 rest upon the contention that the sum of five hundred dollars paid by respondent to appellant was, as a matter of law, a deposit *445 by way of liquidated damages and not by way of penalty. The same contention is made by Exception 13, which charges error in failing to instruct the jury that no question of forfeiture was involved; and by Exceptions 5 and 14, which assign error in failing to charge that the deposit was liquidated damages. The record does not disclose that the trial judge was requested to so charge; but had such request been made he could not have done so in view of the conflicting testimony as to the terms of the agreement between the parties. When it is recalled that except for the check and the receipt, which are inconclusive as to the character of the deposit, the transaction between the parties was verbal; that in his amended answer the defendant referred to the deposit only as a forfeit; that in his letter of November 26 he again denominated it a forfeit; that there is no testimony from which it may be conclusively inferred that the sum deposited had been agreed upon by the parties as the fair measure of compensation for actual damages that might be sustained by the defendant as the result of nonperformance by the plaintiff; that nowhere in pleading or proof is the deposit expressly referred to as liquidated damages; and that the conflicting testimony indicates that the parties themselves were concerned not with regard to the technical character of the deposit, but rather with whether or not the plaintiff had the right, under their agreement, to call the deal off within five days and thereupon get his money back; it becomes manifest that in such circumstances the trial judge could not have ruled, as a matter of law, that the deposit was liquidated damages.
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/1338547/ | 96 Ga. App. 197 (1957)
99 S.E.2d 489
McLENDON, Executor
v.
McLENDON et al.
36651.
Court of Appeals of Georgia.
Decided June 27, 1957.
Rehearing Denied July 11, 1957.
*199 R. M. Daley, Carl E. Westmoreland, for plaintiff in error.
Jones & Douglas, Paul J. Jones, Jr., contra.
*208 CARLISLE, J.
1. "`Courts of ordinary have authority to exercise original, exclusive, and general jurisdiction of the following subject-matters: . . . The granting of letters testamentary, and of administration, and the repeal or revocation of the same. . . All controversies in relation to the right of executorship or administration.' Code of 1933, § 24-1901 (2, 3). `Whenever the ordinary knows, or is informed by any person having any interest in the estate, that the administrator *198. . . for any reason . . . is unfit for the trust reposed in him,' after citation and hearing, `the ordinary may, in his discretion, revoke the letters of administration.' § 113-1229. This section is applicable to executors as well as administrators. § 113-1101. The word `unfit' as used in the statute is not limited to physical, mental, or moral conditions, but is sufficiently broad to include a legal disqualification under the will or otherwise." Bruce v. Fogarty, 53 Ga. App. 443 (1) (186 S.E. 468).
2. "On appeal to the superior court from the court of ordinary in a proceeding to remove an administrator [or executor], the discretion which by law has been vested in the ordinary is to be exercised by the jury. Moody v. Moody, 29 Ga. 519, 521; Davis v. Davis, 33 Ga. App. 628 (127 S.E. 779)." Stanley v. Spell, 46 Ga. App. 91 (2) (166 S.E. 669).
3. "In the absence of any authority conferred by the will, an executor has no power, by virtue of his appointment as such, to borrow money and bind the estate . . ." O'Kelly v. McGinnis, 141 Ga. 379 (81 S.E. 197).
4. Under an application of the foregoing principles of law, the trial court did not err in overruling the general demurrer to the petition or the motion for a new trial based solely upon the general grounds, as the petition is replete with charges that the defendant violated the terms of the will, violated the law, and was otherwise unfit to carry out the trust reposed in him; and, on the trial, the plaintiffs established the fact that the defendant violated the terms of the will with reference to the testator's grave, violated the law and the will by binding the estate for borrowed money, established that the defendant was in extremely poor health, and established many other facts such as to authorize the jury to find that he was unfit to perform the trust reposed in him.
5. None of the special demurrers is meritorious, and even if it could be said that one or more of these demurrers was meritorious, it does not, under the facts of this case, appear that the trial court's overruling these special demurrers was harmful or injurious to the defendant. See in this connection, Teal v. Equitable Loan Co., 43 Ga. App. 673 (159 S.E. 904).
Judgment affirmed. Gardner, P. J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338553/ | 95 Ga. App. 804 (1957)
99 S.E.2d 345
NOBLE
v.
HUNT; and vice versa.
36684, 36685.
Court of Appeals of Georgia.
Decided May 23, 1957.
*805 Oliver C. Hancock, Carl T. Hudgins, for plaintiff in error.
G. Seals Aiken, James A. Mackay, contra.
NICHOLS, J.
1. The petition alleged that the defendant was indebted to the plaintiff for services rendered as a certified public accountant as shown by an exhibit attached to the petition, which exhibit was in part as follows: "Professional services rendered: Handling of tax case for the years 1942, 1943, 1944, 1945 and 1946, during period May, 1948 to April 26, 1951, in which fraud was alleged, before the Penal Division, Attorney *806 General's office, Southern Division Technical Staff and the Tax Court of the United States which resulted in elimination of prosecution for fraud and the ad valorem fraud penalty of $6,951.22
$2,850.00
Paid May 27, 1948 350.00
----------
Balance Due. $2,500.00"
This exhibit contained a sworn statement by the plaintiff that the same was a true and correct statement of the amount due him by the defendant for such services.
The petition was not subject to general demurrer, nor was it subject to special demurrer because it did not contain a bill of particulars inasmuch as the exhibit attached to such petition and quoted from above informs the defendant of the services for which the plaintiff is seeking recovery. "Unnecessarily minute and detailed statements are not required." L. & N. R. Co. v. Barnwell, 131 Ga. 791 (4) (63 S.E. 501). "It is enough to state the account with such fullness and specification as will confine the plaintiff to a particular cause of action, and fairly apprize the defendant of the character of the demand, so as to enable him to prepare his defense." Henry Darling, Inc. v. Harvey-Given Co., 40 Ga. App. 771, 777 (151 S.E. 518). See also Page v. Virginia-Carolina Chemical Co., 62 Ga. App. 727 (9 S.E.2d 857).
2. The first special ground of the defendant's motion for new trial complains of the following excerpt from the court's charge: "The court charges you that the reasonable value of the services rendered, if not fixed by contract, would be of or the amount that is generally charged by certified public accountants for the same or like services in the same community and under the same or similar circumstances as exist in the case now on trial."
In Marshall v. Bahnsen, 1 Ga. App. 485, 486 (57 S.E. 1006), this court said, "The true question in such cases, where there is no express contract, is, what is the ordinary and reasonable charge made for such services by members of similar standing in the same profession." The excerpt complained of in the present case was not reversible error, for the charge given limited the plaintiff to the same recovery as would the rule stated in Marshall v. Bahnsen, supra.
*807 3. Special ground 2 excepts to the following excerpt from the charge: "I don't believe there is any issue in this case, gentlemen, on the question as to the fact that Mr. Hunt is a duly qualified, legally licensed certified public accountant."
The defendant contends that under the pleadings the plaintiff had the burden to prove that he was a certified public accountant, and therefore this charge was reversible error.
The plaintiff alleged that he was a duly licensed certified public accountant, and the defendant, in his answer, alleged that he could neither admit nor deny this allegation of the petition as alleged. On the trial the plaintiff testified that he was a duly licensed certified public accountant, and there was no evidence to contradict this testimony. "Although the pleadings made an issue of this, the evidence demanded a finding that such were the facts, and in a case like that it was not an expression of opinion as to what had been proved. `Where a fact is established by undisputed evidence, it is not error for the judge, in his charge to the jury, to assume or intimate that the fact has been proved.' Dexter Banking Company v. McCook, 7 Ga. App. 436 (1) (67 S.E. 113)." Snellings v. Rickey, 57 Ga. App. 836, 838 (197 S.E. 44). Therefore, this ground of the amended motion for new trial is without merit.
4. In the third special ground the defendant excepts to the italicized portion of the following excerpt from the court's charge: "Now, Gentlemen, what I have just read to you is the plea and answer filed by the defendant. Now, Gentlemen of the jury, the effect of the plea and answer filed by the defendant in this case is to put the burden of proof on the plaintiff, the party suing, to show to your satisfaction, by a preponderance of the evidence in the case, that the allegations he makes are true, except those allegations which are admitted by the defendant, and those that are admitted will be taken as true. The preponderance of the evidence means the greater weight of the evidence upon the issues involved, which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than another. In considering where the preponderance of the evidence may rest on any question that you have under consideration, *808 you may consider the number of witnesses, although the court instructs you that the preponderance of the evidence is not necessarily with the greater number. The court further instructs you with respect to the burden of proof in this case, that when you come to the defendant's answer that is his plea and answer, where you find an affirmative allegation made by him, then, with respect to those allegations, the burden of proof shifts to him, and it is necessary for him to substantive those allegations by a preponderance of the evidence."
The contention of the defendant is that the excerpt complained of placed the burden of proof on him to prove every allegation of his answer inasmuch as even the denial of the allegations of the plaintiff's petition were necessarily alleged as affirmative statements. The defendant relies on Whitley v. Wilson, 90 Ga. App. 16 (81 S.E.2d 877) to support this contention. In that case, the trial court charged the jury: "However, Gentlemen of the jury, when you come to considering the plea and answer by the defendant with respect to the allegations in that plea and answer, then the burden shifts and it rests upon the defendant in those instances to prove those allegations by a preponderance of the evidence to the satisfaction of the minds of you gentlemen of the jury." Therefore, that case is, on its face, distinguishable from the present case since there the trial court merely referred to the allegations of the plea and answer, while here he refers to the affirmative allegations of the plea and answer.
Code § 38-103 provides: "The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. If a negation or negative affirmation be so essential, the proof of such negative lies on the party so affirming it." Although the better practice would be to charge on an affirmative defense in the language of the above quoted Code section, the excerpt of the charge complained of, as here given, when considered in connection with the entire charge on the burden of proof and the preponderance of the evidence does not require a reversal of the judgment of the trial court denying the defendant's motion for new trial.
*809 5. The plaintiff sought to recover on a quantum meruit basis for services rendered as a certified public accountant. He was not, as contended by the defendant, acting as an attorney at law. The mere fact that he held a "power of attorney" from the defendant authorizing him to act in the defendant's place would not imply that he was practicing law, as contended by the defendant, without a license. All the proceedings in which the defendant was involved, and in which the plaintiff represented him, were before either the U. S. Treasury Department or the Tax Court of the United States, both of which allow qualified persons, other than attorneys at law, to represent clients in proceedings therein. Therefore, the contention that the plaintiff was seeking to recover for services performed as an attorney at law without being licensed is without merit.
The verdict for the plaintiff was authorized by the evidence, and the trial court did not err in denying the defendant's motion for new trial on the usual general grounds.
6. The plaintiff, in his cross-bill of exceptions, contends that the trial court should have granted his motion for judgment non obstante veredicto in which motion the plaintiff contended he was entitled to interest from the date he completed the services for the defendant for which recovery was sought.
The plaintiff was seeking recovery on a quantum meruit basis and not for a liquidated demand, therefore Code §§ 57-110 and 57-111 are not applicable.
No Georgia case has been found expressly dealing with the date from which interest runs where the plaintiff is seeking to recover from the defendant for services rendered under quantum meruit, nor does there seem to be a great deal of foreign authority on this exact point. The case of Cox v. McLaughlin, 76 Cal. 60, 67 (18 P. 100, 9 Am. St. Rep. 164), reads in part as follows: "It may be stated, as a general principle, that interest is not allowed on unliquidated damages or demands. This term, `unliquidated damages' applies equally to cases of tort, as slander, assault and battery, etc., and to cases upon a quantum meruit, for goods sold and delivered or services rendered. The reason of such denial of interest is said to be that the person liable does not know what sum he owes, and therefore can be in no default *810 for not paying. The damages in such cases are an uncertain quantity, depending upon no fixed standard, are referred to the wise discretion of a jury, and can never be made certain except by accord or verdict. As to such damages there can be no default, and hence the initial point at which to fix the starting of interest is wanting."
The defendant was not in default in the present case until the jury determined what amount, if any, he owed the plaintiff. The question as to the amount of liability was not one of law but one of fact which could only be decided by accord or by the jury. The defendant was not bound by a firm contract for a stated amount, nor was there, under the circumstances of this case, any formula by which the defendant could determine the amount of his liability. Therefore, the action was for an unliquidated amount and the interest did not begin to run until the verdict and judgment in the case, and this is true although the plaintiff filed an amendment to his petition which was unobjected to wherein he sought a recovery for interest from the date he completed his services for the defendant. Accordingly, it necessarily follows that the trial court did not err in sustaining the demurrer to the motion and in refusing to enter a judgment non obstante veredicto for the plaintiff as to the interest.
Judgment affirmed on the main bill and the cross-bill of exceptions. Felton, C. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338556/ | 99 S.E.2d 61 (1957)
246 N.C. 501
NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION, Petitioner,
v.
E. E. PRIVETT and wife, Fannie Privett; H. A. Clayton, Mrs. Nina Sutties, Widow, H. G. Coker, Harvey C. Carroll, Trustee; W. T. Ussery, C.Q.T., County of Richmond, and Town of Rockingham, Respondents.
No. 461.
Supreme Court of North Carolina.
June 28, 1957.
As Amended August 28, 1957.
*63 R. Brookes Peters, Gen. Counsel, Raleigh, Leath & Blount, Rockingham, and H. Horton Rountree, Raleigh, for petitioner, appellant and appellee.
Pittman & Webb and Jones & Jones, Rockingham, for respondents, appellants and appellees.
BOBBITT, Justice.
The front portions of two buildings were on the condemned portion of the Privett property. These buildings were (1) a 1½story frame building, converted into a two family apartment, with four rooms and a bath on each floor and a connecting garage at the rear; and (2) a 2-story concrete block building, the ground floor of which had been used by Privett for his grocery and general merchandise business.
Other buildings on the Privett property, east of the condemned portion, are (1) the Privett residence, ten rooms and a bath, near the center of the Privett property; (2) a new 2-story concrete block building, fronting on US No. 74, the ground floor of which is now used by Privett for his grocery and mercantile business, with six rooms and a bath upstairs; and (3) a new frame building, farther back from US No. 74, with nine rooms and two baths.
The Liles map shows the location of each of the several buildings and the portions of the two buildings fronting on US No. 1, within the condemned portion of the Privett property.
Petitioner and respondents offered opinion evidence as to the fair market value of the Privett land before and after the taking by petitioner of the portion condemned. The verdict indicates acceptance by the jury of the testimony that was more favorable to the respondents.
Petitioner's Appeal
Petitioner brings forward 28 assignments of error based on 44 exceptions. They *64 relate to (1) rulings on evidence, (2) the charge, and (3) sundry matters.
Each exception to a ruling on evidence has been given close attention. No prejudicial error has been shown. It is deemed unnecessary to discuss any of the assignments relating to rulings on evidence except those considered below.
Where the court sustained objections to questions by petitioner's counsel, the subject of assignments 3, 5, 7 and 8, it is sufficient to say: "The record fails to show what the witness would have testified had he been permitted to answer. Hence, there is no basis for a consideration of these exceptions." Hatcher v. Clayton, 242 N.C. 450, 88 S.E.2d 104, 107, and cases cited.
The cross-examination of respondents' witness Cockman explored in detail the bases upon which the witness arrived at his opinion that the fair market value of the Privett property was $135,500 before the taking and $95,500 thereafter. The witness was questioned as to his valuation of the land itself and of each building thereon. In giving his opinion that the 2-story store building on the portion condemned should be valued at $27,500, he stated that he based this figure upon estimates he had obtained as to replacement cost; and the cross-examiner elicited testimony that the witness had made no allowance for depreciation of this replacement cost, notwithstanding the building had been there 20-25 years.
Petitioner's counsel moved that "his testimony there be stricken, because the courts have said replacement cost is not the proper measure of damages." Exception No. 5, upon which assignment No. 4 is based, is to the court's denial of said motion. The court aptly observed that petitioner's counsel had "brought it out." This testimony, it would appear, tends to impair the weight that should be given to the testimony of Cockman on direct examination as to over-all values; and, independent of the fact that it was elicited by petitioner's counsel, we detect nothing therein unfavorable to petitioner.
It must be kept in mind that respondents did not offer evidence as to the separate value of the land, considered alone, or of any building, considered alone. Nor did the court intimate that the replacement cost of any building was the proper measure of respondents' damage. The jury was given this instruction: "* * * the Court charges you that your measure of damages in this case is the difference between the fair market value of the entire tract of land, including the buildings thereon, immediately before the taking and the fair market value of what is left immediately after the taking. After weighing and considering all the evidence, you will determine by its greater weight, the burden being upon the landowner, the respondent, what amount, if any, would be just compensation for the appropriation of their land over and above all general and special benefits, if any, accruing to said lands." It is noted that petitioner does not assign the quoted instruction as error, nor the court's prior instructions as to fair market value and special and general benefits.
Before respondents' witnesses Haywood and McDonald had testified to their opinions as to the fair market value of the Privett property before and after the taking, petitioner's counsel moved that they be permitted to examine these witnesses to determine whether they "may have taken into consideration elements and followed methods" believed by counsel to be improper. Assignments No. 6 and No. 9, based on exceptions 7, 8, 9, 13 and 14, are based on the court's denial of these motions for such preliminary examination or crossexamination of respondents' said witnesses. Each witness had testified as to his familiarity with the Privett property and with market values in the area and that he had opinions satisfactory to himself relevant to the issue. Cross-examination was the available medium whereby the weight of the *65 testimony might be impaired by showing that the witness "considered elements and followed methods" that did not reflect fair market value either before or after the taking. Suffice to say, petitioner's counsel fully embraced the opportunity so afforded by the privilege of cross-examination.
The eight exceptions on which assignments 13, 14 and 15 are based relate to the overruling of petitioner's objections to questions asked by respondents' counsel in their cross-examination of petitioner's witness Rice. Rice had testified to his opinions as to the fair market value of the Privett property before and after the taking. The cross-examiner wanted to know whether Rice knew the values of any other property in the area near the Privett property, or the prices at which such properties had been sold; and to all these questions the witness gave negative answers. The testimony so elicited was relevant solely to the credibility of the witness, and the weight, if any, to be given his testimony. Let it be noted that none of the questions undertook to elicit testimony as to the valuations or sale prices of other properties, the questions being directed to whether the witness had opinions or knowledge with reference thereto.
Assignment No. 19 is to the refusal of the court to admit in evidence photographs of the buildings on the condemned portion of the Privett property, taken November 15, 1956, after each building had been partially demolished. The argument in support of this assignment implies that these buildings had been partially demolished by Privett before the petitioner took possession; and it is submitted "that the pictures are themselves mute evidence that the respondent Privett was stripping the buildings of certain parts which he considered of value and that he had done so before possession was surrendered to the Commission."
Petitioner's witness Southall had identified these photographs as representing the condition of these buildings on November 15, 1956, "the day the first work was done by the Commission." His testimony is silent as to whether the partial demolition of the buildings when the photographs were taken had been effected by Privett or by petitioner.
As to the charge: When considered contextually, it is quite clear that the instructions given were in accordance with the applicable rule as to measure of damages declared by this Court in Proctor v. State Highway Comm., 230 N.C. 687, 55 S.E.2d 479; North Carolina State Highway Comm. v. Black, 239 N.C. 198, 79 S.E.2d 778. Also, see City of Statesville v. Anderson, supra.
As to assignments directed to alleged errors in the statement of petitioner's contentions, the rule is that timely objection must be made, directing the court's attention to such inadvertencies so that correction thereof may be made at the time. As in Carolina Coach Co. v. Central Motor Lines, 229 N.C. 650, 50 S.E.2d 909, nothing appears here to take this case out of the general rule.
Suffice to say, none of the assignments directed to the charge show prejudicial error.
As to other assignments, petitioner has not shown prejudicial error. It is deemed unnecessary to discuss any of these assignments except those considered below.
Assignment No. 25 relates to petitioner's request that the jury be polled. The court polled the jurors in the usual manner. The assignment is directed to the court's refusal, in polling the jury, to ask specifically as to whether they knew the amount of the commissioners' award before arriving at their verdict. The jury had returned the verdict. The polling of the jury is for one purpose only, to ascertain *66 whether the verdict as returned is the verdict of each juror and whether he then assents thereto. "It would manifestly be improper for the judge or the clerk to attempt to impeach the jurors or their verdict by seeking to ascertain by an examination of each of the jurors the grounds upon which the jurors had agreed upon their verdict." Columbus Oil Co. v. Moore, 202 N.C. 708, 163 S.E. 879, 881.
The deletion from the form of judgment drafted by petitioner's counsel of the portion of the description of the land condemned quoted in the statement of facts is the basis of assignment No. 27. Petitioner has failed to show prejudicial error. The description by metes and bounds in the judgment as signed is in accordance with the Liles map, which, by stipulation, correctly shows the original boundaries of the Privett property and the portion thereof condemned by petitioner. This description is sufficient. If the deleted (additional) description differs from the particular description by metes and bounds according to the Liles map, it should have been deleted. If the two descriptions are fully in accord, the deletion is immaterial.
On petitioner's appeal, we find no error of law deemed sufficiently prejudicial to justify a new trial.
Respondents' Appeal
In their assignment No. 1, respondents assert that the court erred in failing to sign the judgment prepared and tendered by them.
It is noted that the judgment signed, as well as that tendered by respondents, provided that respondents recover from petitioner the sum of $38,500. Respondents' said assignment does not draw attention to any specific provision of the judgment signed. If, as contended in their brief, the judgment signed contains unnecessary or inappropriate recitals or purported findings, it does not appear that respondents are prejudicially affected thereby. However, the modification indicated below should be made.
The identical description by metes and bounds of the portion condemned appears in the petition and in the judgment. This description begins: "Beginning at an iron stake in the eastern edge of the sidewalk on the eastern side of US Highway No. 1 * * * at a point S. 25 deg. 21' W. 14.5 feet distant from the iron spike where the eastern edge of the present right of way of US Highway No. 1 intersects the southern line of the 100-foot right of way of US Highway No. 74, * * *" (Italics added.) The Liles map shows that "the present right of way of US Highway No. 1" as used in said description refers to the right of way as of October 1, 1956, prior to Project No. 6644. Hence, it seems appropriate that the description in the judgment be modified by substituting in lieu of the words, "the present right of way of US Highway No. 1," the words, "the right of way of US Highway No. 1 as of October 1, 1956"; and it is so ordered.
Respondents' assignment #2 is based on their exception to the court's refusal to include in the judgment signed the following provision, viz.:
"It further appearing to the court that 60 days from the 13th day of December, 1956, the date of this judgment, is a fair and reasonable time in which to pay the amount of this judgment into the office of the Clerk of the Superior Court of Richmond County, it is hereby further considered, ordered and decreed that from and after February 13th, 1957, any unpaid balance of the principal of this judgment shall draw interest at the rate of 6% per annum until paid."
In Yancey v. North Carolina State Highway & Public Works Comm., 222 N.C. 106, 22 S.E.2d 256, this Court held that a judgment against the State Highway and Public Works Commission for the amount awarded by a jury to a landowner *67 as compensation for the taking of his property under the right of eminent domain did not bear interest; specifically, that C.S. § 2309, now G.S. § 24-5, had no application to a judgment against the State Highway and Public Works Commission.
While the form of assignment of error is different, respondents present essentially the same question; and, recognizing the applicability of Yancey v. North Carolina State Highway & Public Works Comm., supra, respondents urge that we reconsider that decision. Attention is again called to results reached in other jurisdictions. 29 C.J.S. Eminent Domain § 333; 18 Am. Jur., Eminent Domain sec. 272; 96 A.L.R. 150 et seq.; 111 A.L.R. 1304 et seq.; 36 A.L.R. 2d 413. It is noted that Devin, J. (later C. J.), in his opinion in Yancey v. North Carolina State Highway & Public Works Comm., supra, took full notice of the fact that divergent results had been reached in other jurisdictions; and that the stated bases of decision related primarily to a construction of North Carolina statutes.
The construction then placed upon the relevant North Carolina statutes has been accepted as authoritative since 1942. If not in accord with the legislative intent, the General Assembly may provide that the landowner in such case shall receive additional compensation in the event of delay in the payment of the judgment, either in the form of interest at some specified rate or according to such other formula as may be devised to compensate the landowner for his loss, if any, on account of delay in the payment of the judgment.
It is noted that respondents' assignment of error relates solely to the refusal of the court to provide that the judgment shall draw interest at the rate of 6% per annum from February 13, 1957. On authority of Yancey v. North Carolina State Highway & Public Works Comm., supra, the refusal of the court to incorporate in its judgment the requested provision relating to interest was correct. The assignment of error does not purport to present a constitutional question.
Petitioner's appeal: No error.
Respondents' appeal: Modified and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338546/ | 96 Ga. App. 290 (1957)
99 S.E.2d 714
YOUNGBLOOD
v.
RUIS, Administratrix.
36770.
Court of Appeals of Georgia.
Decided July 16, 1957.
Rehearing Denied July 31, 1957.
*292 Frank S. Twitty, Robert W. Reynolds, for plaintiff in error.
Robert D. Hedrick, Peter Zack Geer, contra.
QUILLIAN, J.
Special ground 1 assigns as error the following charge: "If, under the rules of law which I have given you in charge, you find the plaintiff in this case should prevail, then this form of your verdict would be sufficient, We, the jury, find in favor of the plaintiff.
*293 "You would then state in your verdict the reasonable hire of the car or value of the car for the time the defendant had it. The plaintiff seeks to recover the sum of $1,000 so you must state the amount in your verdict, whatever you find as reasonable hire of the car for that time." The defendant insists this charge was error because it instructed the jury that the plaintiff was seeking to recover $1,000 as hire for the automobile, whereas in reality she was only seeking to recover for the period from June 15 to the date of the trial. In a supplemental charge the judge instructed the jury as follows: "Gentlemen of the jury, the plaintiff alleges in her petition that the yearly value of the car was $1,000. She is seeking to recover a sum that would represent the reasonable value of the car for the time defendant had it. She claims the defendant had the car from June 15 up until now. Whether she did or did not, that is for you to determine." The supplemental charge cured any error the judge made in the original charge to the jury in regard to the amount of hire the plaintiff was seeking. Ground 1 is without merit.
2. (a) Special ground 2 contends that the verdict was illegal and void. The verdict read as follows: "We find in favor of the plaintiff, Mrs. Ruis, in the amount of $500 and possession of 1956 Cadillac."
The defendant insists the verdict was void because there was no election to sue for the property and its hire shown in the record. This contention is without merit because the fact that the jury returned a verdict for the property and hire, together with the entering of judgment thereon is sufficient to show that such an election was made. Wolf v. Kennedy, 93 Ga. 219 (18 S.E. 433); Baker v. Central Grocery Co., 15 Ga. App. 377, 380 (83 S.E. 504); Wilson-Weesner-Wilkinson Co. v. Collier, 62 Ga. App. 457 (2) (8 S.E.2d 171).
(b) The defendant further insists that the verdict was not valid because the verdict was in favor of "Mrs. Ruis" whereas the suit was brought as Mrs. Carolyn West Ruis, as administratrix. With this contention we cannot agree. Where a person brings a suit as administrator and the jury returns a verdict for the person without describing him as administrator, the verdict will be construed to be for him in his representative capacity. Empire State Chemical Co. v. Shubrick, 148 Ga. 551 (97 S.E. 541).
*294 (c) The defendant contends that the verdict was invalid because it awarded the possession of the chattel in the case to the plaintiff, but did not find the title to the same to be in her. The finding was tantamount to a determination that the plaintiff had the right of possession to the chattel. That there may be a recovery of possession of a chattel in a trover action in which the title to the same is not adjudicated is well settled. A trover suit may be predicated on a mere right of possession of the chattel for the recovery of which the action is brought. A. C. L. R. Co. v. Gordon & Co., 10 Ga. App. 311 (3) (73 S.E. 594); Kaufman v. Seaboard Airline Ry., 10 Ga. App. 248 (73 S.E. 592). There are instances in which the right of possession is in one person and another is vested with title to the same personalty. However, the evidence in this case, while in conflict, supported a verdict finding the right of possession to an automobile for which the action was brought to be in the plaintiff.
(d) The defendant further insists that there was no evidence adduced to show the length of time the automobile was in the defendant's possession. This contention is without merit, because the defendant testified that she had been in possession of the automobile since May 30 of that year.
3. The defendant insists that if any hire was to be given it would be from the date of the trial. This contention is without merit. In a trover suit where an election is made to sue for the property and its hire, the hire will run from the date of the conversion. O'Neill Mfg. Co. v. Woodley, 118 Ga. 114 (44 S.E. 980); Schley v. Lyon & Rutherford, 6 Ga. 530; Davis v. Davis, 30 Ga. 296; Commercial Auto Loan Corp. v. Baker, 73 Ga. App. 534 (37 S.E.2d 636); Garrett v. Atlanta Home Underwriters, 35 Ga. App. 404 (133 S.E. 265); Bank of Blakely v. Cobb, 5 Ga. App. 289 (63 S.E. 24).
4. Special ground 3 assigns error on the following charge: "Gentlemen of the jury, the plaintiff alleges in her petition that the yearly value of the car was $1000. She is seeking to recover a sum that would represent the reasonable value of the car for the time defendant had it. She claims the defendant had the car from June 15 up until now. Whether she did or did not, that is for you to determine.
*295 "It is incumbent upon you, if you bring in a verdict for the plaintiff, to bring in a verdict for whatever amount she is entitled to for the hire of the car." The defendant insists that the charge was error because it was tantamount to instructing the jury that if they returned a verdict for the plaintiff for the property, they should in turn return a verdict for hire of the automobile. If the jury found that the defendant converted the plaintiff's automobile to her own use, the plaintiff would be entitled to hire from the date of its conversion. The charge was not error and special ground 3 is without merit.
5. Special ground 4 complains that the trial judge erred in excluding testimony of the defendant as to a conversation between herself and the deceased, J. C. Ruis, regarding the bill of sale the defendant introduced in evidence. The defendant contends that this testimony was admissible because testimony of a like nature had been previously admitted without objection. While it is true that R. A. Davis and R. J. Allen testified as to this conversation between the deceased and the defendant, they were third parties not interested in the suit, and not parties to the bill of sale. Their testimony was admissible to explain the conduct or ascertain the motive of the deceased. Code § 38-302. The testimony of the defendant was properly excluded because she was a party to the suit and she could not testify in her own favor as to transactions or communications had with the deceased. Code § 38-1603 (1).
6. As to the general grounds of the motion it is insisted that there was not sufficient evidence to support the verdict because there were two witnesses who testified they saw the deceased sign a bill of sale giving title to the automobile to the defendant. It is the defendant's contention that the testimony of the plaintiff and the deceased's sister, that the signature on the bill of sale was not that of the deceased, could not contradict the positive testimony of the defendant's witnesses. The plaintiff and the deceased's sister testified that they were familiar with the deceased's handwriting. They were therefore competent to testify as to whether the signature on the bill of sale was in their opinion that of the deceased, and when they testified that it was not, this made a question for the jury as to that fact. *296 Copeland v. State, 66 Ga. App. 142, 143 (4) (17 S.E.2d 288); Rogers v. Rogers, 52 Ga. App. 548, 549 (184 S.E. 404); Boggus v. State, 34 Ga. 275 (2).
Assuming but not deciding that the testimony of the plaintiff and the deceased's sister was negative testimony, it would still have presented a question for the jury's determination. "`Negative evidence' does not amount to no evidence at all; otherwise the term would be a misnomer. And jurors are not obliged to discard it merely because of the existence of positive evidence in conflict therewith. `Where the existence of a fact was affirmed by positive evidence and denied by negative evidence, an issue was raised, and the trial judge committed no error in properly submitting such issue to the jury.' Western & Atlantic R. Co. v. Mallett, 23 Ga. App. 367 (2) (98 S.E. 238)." Ga. R. & Bkg. Co. v. Wallis, 29 Ga. App. 706, 714 (116 S.E. 883).
In concluding that there was a conflict in the evidence, we have applied the rule laid down in Copeland v. State, 66 Ga. App. 142, 145, supra, "It is true that a party who is not an expert, but who is acquainted with the handwriting of another, may testify whether a given signature is in the proper handwriting of the person with whose handwriting he is acquainted; but only experts, persons accustomed to and skilled in the matter of handwriting, may institute comparison between writings of unquestioned genuineness and writings in dispute and give an opinion. Wimbish v. State, supra [89 Ga. 294, 15 S.E. 325]; Piedmont & Arlington Life Insurance Co. v. Lester, 59 Ga. 812; Griffin v. State, 90 Ala. 596, 600 (8 So. 670); McKay v. Lasher, 42 Hun. (N. Y.) 270, 272; Johnston v. Bee, 84 W. Va. 532 (100 S.E. 486, 7 A.L.R. 252). The reason for the distinction is obvious. The practiced eye of the expert will enable him to perceive the distinguishing characteristics or features in different specimens of handwriting, and at once to indicate the points of similarity or dissimilarity, though he may be entirely unacquainted with the specimens presented. By long practice and observation he has become skilled in such matters. Not so with the nonexpert. It is only when he has become familiar with the peculiarities of a handwriting, as one becomes familiar with the countenances of his friends or the characteristics of objects *297 of common observation, that he is able to distinguish between it and other specimens that may bear only a slight resemblance to it. Woodman v. Dana, 52 Maine, 9, 15." The rule is followed in Hawkins v. Citizens Bank & Trust Co., 18 Ga. App. 263 (89 S.E. 450) and Bates v. State, 18 Ga. App. 718 (90 S.E. 481). As early as 1854 it was held by our Supreme Court that identity of a person might be established by a witness testifying to facts other than the personal appearance of the witness, such as foot prints or handwriting. Hester v. State, 17 Ga. 130, 133. "A witness may testify to handwriting if he knows the same, and it matters not how that knowledge may be acquired; but it is very clear to our minds that he should have that knowledge before he can testify as to the contents of a writing which is lost." Bone v. State, 86 Ga. 108, 117 (12 S.E. 205).
"It is no objection to the testimony of a witness, that he has come to the knowledge of a party's handwriting since the difficulty arose, nor that means were used to obtain that knowledge: Aliter, if the witness' knowledge was acquired under such circumstances as would show that the party had a motive for disguising it." Reid v. State, 20 Ga. 681 (1).
There is a pronouncement in Bowie & Co. v. Maddox & Goldsmith, 29 Ga. 285, 287 (74 Am. Dec. 61) "We think the court erred also in charging the jury that circumstances could not outweigh direct testimony. Direct or positive testimony might come from a very unreliable person, or coming from a source of great respectability might yet break down under the weight of its own absurdity. It is impossible, therefore, to fix any uniform value upon direct or positive testimony as such. It is equally impossible to fix a uniform value upon circumstantial evidence as such. In many cases the one justly outweighs the other, while in many others the preponderance is precisely reversed." The general grounds are without merit, except as herein stated.
The jury returned a verdict of $500 hire for the automobile. The plaintiff contended that the defendant converted the automobile and had it in her possession from June 15, 1956, to the date of the trial, which was November 28, 1956. The petition alleged that reasonable hire of the automobile was $1000 per *298 year. The period from June 15, 1956, until November 28, 1956, being less than six months, it follows that the jury awarded the plaintiff a larger amount of hire than that sued for. If the plaintiff, defendant in error here, within ten days after the remittitur reaches the clerk of the trial court shall voluntarily write off the amount of the verdict which is excessive, the judgment denying the motion for new trial will be affirmed, otherwise it will be reversed.
If the amount awarded the plaintiff for hire of the automobile had exceeded that shown by the evidence, the whole verdict for hire could be set aside. We cannot hold that the amount of hire found by the jury exceeded that shown by the evidence. The only opinion evidence as to the value of hire fixed it at $1,000 per year which would amount to less than $500 for the actual time expiring between the alleged conversion of the automobile and the date of trial. But the jury could, from the evidence adduced on the trial, have entertained a different opinion from that expressed by the only witness who gave an opinion as to the value of the automobile's hire. McCarthy v. Lazarus, 137 Ga. 282 (73 S.E. 493). The jury is not bound by the witness's opinion as to the value of rent or hire, but may form its own from the data furnished by the evidence submitted. Code § 38-1709. Here the jury had proven facts submitted upon which it could predicate its own opinion as to the value of the automobile's hire. This evidential data was the value, model, and age of the automobile. These are generally the determinate facts from which the rental value of an automobile is decided.
Judgment affirmed on condition. Felton, C. J., and Nichols, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338615/ | 213 Ga. 445 (1957)
99 S.E.2d 204
DUTTON et al.
v.
FREEMAN.
19740.
Supreme Court of Georgia.
Submitted June 10, 1957.
Decided July 3, 1957.
Rehearing Denied July 22, 1957.
*447 R. F. Duncan, Alfred Quillian, E. O. Dobbs, Jr., for plaintiffs in error.
Wheeler, Robinson & Thurmond, contra.
MOBLEY, Justice.
1. The first questions for decision in this case are as to whom the action should be properly brought against, and where. In Crowell v. Crowell, 190 Ga. 501, 504 (9 S.E.2d 628), where a writ of habeas corpus was brought by a father against a mother in the county of her residence to gain custody of a child, where the child was in the physical possession of another person in another county, who had the child with the mother's consent and was holding it subject to her direction and control, this court held: "On the precise question here involved this court has never ruled; but, both on principle and authority, we hold that under the facts of this record the illegal detention was at the place of the residence of the child's mother, the respondent, who has the custody and control, and, in legal contemplation, the possession." In that case, as in the instant one, there had been a previous decree granting the mother and father *448 alternate custody of the child. As there pointed out, when used in child-custody proceedings, the writ of habeas corpus operates upon the person within the jurisdiction, and he can be compelled to produce a child even though the child is not within the jurisdiction. The fact that the person who has the legal right to the custody and control of the child does not have the actual physical possession of it is no answer to a proceeding to compel its production on habeas corpus, except where there is clear proof of an absolute impossibility to produce the child, because in legal contemplation whoever has legal custody and control of the child also has possession of it. Crowell v. Crowell, supra.
In Walker v. Steele, 206 Ga. 674 (58 S.E.2d 421), this court held that actual physical custody of the child was sufficient to give the court jurisdiction to inquire into the custody of the child, and affirmed a judgment granting custody to the mother against the party who had actual possession of the child without the legal custodian having been made a party to the proceedings. To the extent that the affirmance in that case, changing custody of the child without the legal custodian being a party, conflicts with the Crowell case, the latter being an older decision is controlling upon us in this case. In Duncan v. Thomas, 208 Ga. 740 (69 S.E.2d 196), a case very similar on its facts to the instant case, Walker v. Steele was cited, but the Crowell case was followed in affirming the trial judge who dismissed a petition for habeas corpus brought against J. A. Thomas, the evidence showing that Thomas merely kept the child on behalf on his granddaughter while she worked, she being the mother of the child and its legal custodian under a divorce decree, she not being made a party to the habeas corpus proceeding. In Gibson v. Wood, 209 Ga. 535 (74 S.E.2d 456), an award changing custody of a child upon a writ of habeas corpus was reversed because the father, the legal custodian of the child and who had actual possession of it, was not a party, and the Crowell case was cited as authority therefor. In Goodloe v. Goodloe, 211 Ga. 894 (89 S.E.2d 654), it was held that, where there has been a final award of custody of children, any further proceedings relating to such question against the person awarded custody must be brought in the county of such person's residence.
*449 Applying the ruling in the Crowell case to the instant case, the illegal detention was at the place of residence of the father, under the allegations of the petition, and the writ of habeas corpus brought by the mother against him to obtain full time custody of their child should be brought in the county of his residence.
Does the petition allege sufficient facts to show that the court had jurisdiction of the defendant Donald Dutton? "All necessary jurisdictional facts must be clearly and distinctly set out in the petition, and their absence may be taken advantage of by demurrer." Ocilla Southern R. Co. v. McAllister, 20 Ga. App. 400, 401 (93 S.E. 26); White v. Atlanta, B. & C. R. Co., 5 Ga. App. 308, 312 (63 S.E. 234); Flint River &c. R. Co. v. Sanders, 18 Ga. App. 766 (1) (90 S.E. 655). In Nance v. Daniel, 183 Ga. 538, 543 (189 E. E. 21), it was held: "An averment that complainants are informed and believe that a fact exists is a mere statement as to their information and belief, and is not equivalent to positive allegation of the fact itself." The instant petition does not allege that the defendant Donald Dutton is a resident of Gwinnett County, but alleges that the petitioner believes he is a resident of such county. The defendant could admit that the petitioner believes him to be a resident of Gwinnett County without conceding in any way that he is a resident of that county. Since the petition failed to allege that the father, Donald Dutton, was a resident of Gwinnett County and therefore subject to the jurisdiction of the court, the petition fails to show that the court had jurisdiction of him and was subject to general demurrer specifically pointing out this defect. Code §§ 81-304, 50-103, 2-4906; Ruis v. Lothridge, 149 Ga. 474 (2) (100 S.E. 635); Mullally v. Mullally, 199 Ga. 708 (2) (35 S.E.2d 199).
But the petitioner contends that, since the defendants appeared in court with the child on the day set for hearing, they thereby waived any objection to the court's lack of jurisdiction, and cite as authority for this contention, Simmons v. Georgia Iron &c. Co., 117 Ga. 305 (5) (43 S.E. 780, 61 L. R. A. 739), wherein it was held that, "Although a judge may have no authority to issue a writ directed to a person holding another in custody beyond certain territorial limits, yet where he does issue the writ thus *450 directed, and the respondent obeys its mandate by producing into court the person detained, a plea that the court had no jurisdiction to issue the writ should be overruled and the cause of the detention inquired into." In that case, the court was considering a writ of habeas corpus brought to obtain the freedom of one who was allegedly deprived of his liberty without legal justification. As pointed out in McBurnett v. Warren, 208 Ga. 225 (66 S.E.2d 49), there is a clear distinction between such a writ and a writ brought to obtain custody of a child or to reform a previous award of custody. In the former, the writ must be filed in the county where the illegal restraint exists and against the individual having the actual physical custody and control of the person. The writ is instituted solely for the benefit of the person whose freedom is sought. "It is not designed to obtain redress against anybody, and no judgment can be entered against anybody. There is no plaintiff and no defendant and hence there is no suit in the technical sense." P. 228. On the other hand, the writ as used to determine questions as to custody of children brings before the court the question of the interest and welfare of the children and the rights of the parties to their custody. Where, as here, it is sued out by one parent against the other, seeking to acquire the full-time custody of a child and, hence, to deprive the other parent of any right to its custody, the court renders judgment fixing the custody of the child, which is binding upon them. As it is not necessary that the child be before the court in order that a valid judgment may be rendered which is binding upon the parties (Crowell v. Crowell, supra), the fact that the child accompanied the parent to court would not of itself constitute a waiver of the court's jurisdiction. By bringing the child with them to court, the defendants did not thereby waive their right to insist upon their demurrers to the jurisdiction of the court.
2. The petition fails to show that the defendants Mr. and Mrs. Charlie Dutton, Sr., have any interest in the minor child except insofar as they might have its possession with the permission of their son, Donald Dutton. It is alleged that the petitioner assumes that the child is in the possession of Mr. and Mrs. Dutton by the consent of Donald Dutton. The order of *451 April 30, 1955, wherein custody of the child was awarded to the petitioner and Donald Dutton alternately every two weeks, provided that delivery of the child to the grandparents at their home would be a sufficient compliance of delivery to the other party. It is not alleged that Mr. and Mrs. Dutton have refused to deliver the child to the petitioner as provided by the order of April 30, 1955, or that they have refused to deliver the child to its father, or have in any way attempted or sought to exercise any control over the child. It is alleged that they have been requested to surrender to the petitioner "the full-time possession" of the child and have refused to do so, but this would not make them proper parties to this habeas corpus proceeding. They have no right to the full-time possession of the child themselves and have no right or power to surrender such possession to the petitioner or anyone else. The legal custody, control, and possession of the child for the purpose of this proceeding by the mother to obtain exclusive custody of the child is solely in the father, and the petition fails to show that Mr. and Mrs. Dutton have any interest in the subject matter of the case that would authorize them to be joined in the writ against the father. Consequently, the trial court erred in overruling the special demurrers to the petition on the ground of misjoinder of parties defendant. Code § 81-304.
3. The action of the trial court in changing the custody of the minor child without hearing any evidence was clearly error. Code § 50-121 provides: "In all writs of habeas corpus sued out on account of the detention of a wife or child, the court, on hearing all the facts, may exercise his discretion as to whom the custody of such wife or child shall be given, and shall have power to give such custody of a child to a third person." While the trial court has a wide discretion in passing on the evidence upon such a writ, a judgment without any evidence to support it is a gross abuse of his discretion and cannot be allowed to stand. See Sheppard v. Sheppard, 208 Ga. 422 (3) (67 S.E.2d 131).
Judgment reversed. All the Justices concur, except Wyatt. P. J., who dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1434916/ | 478 P.2d 713 (1970)
Louis and Ida HELLERSTEIN, Plaintiffs in Error,
v.
GENERAL ROSE MEMORIAL HOSPITAL, a corporation, Defendant in Error.
No. 70-357, (Supreme Court No. 23504.)
Colorado Court of Appeals, Div. I.
October 27, 1970.
Rehearing Denied November 17, 1970.
Certiorari Denied January 18, 1971.
*714 Kripke, Hoffman, Carrigan & Dufty, Kenneth N. Kripke, Gelt & Grossman, Louis E. Gelt, Denver, for plaintiffs in error.
Wormwood, Wolvington, Renner & Dosh, Jack Anderson, Denver, for defendant in error.
Not Selected for Official Publication.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
In 1965, Louis Hellerstein, plaintiff in this action, suffered a heart attack and was hospitalized at General Rose Memorial Hospital for treatment. At approximately 11:00 P.M. one evening, he apparently attempted to crawl over the foot of his bed, fell and suffered personal injuries as a result. He brought suit against the hospital for recovery of damages and was joined by his wife who sought to recover for loss of consortium.
At the conclusion of plaintiffs' case in chief, defendant moved for a directed verdict alleging: (1) that even if negligence were present it resulted from the professional judgment of the nurse on duty, and that under the law a hospital is not liable for the failure of a nurse to exercise proper professional judgment; and (2) that plaintiffs' evidence failed to establish a prima facie case of negligence on the part of the hospital.
The trial court agreed with defendant's first contention above mentioned and dismissed plaintiffs' suit. Defendant now concedes that Bernardi v. Community Hospital Association, 166 Colo. 280, 443 P.2d 708, decided subsequent to this trial is controlling. In Bernardi, supra, our Supreme Court decided that under such circumstances, a hospital cannot escape liability by claiming that the acts complained of as negligence were acts of professional judgment of one of its employee nurses.
Even conceding that the trial court dismissed plaintiffs' suit on incorrect grounds, defendant contends that the judgment should be affirmed since plaintiffs had failed to establish a prima facie case of negligence against defendant.
The law is clear that merely because the trial court dismissed the case on the wrong grounds is no reason to overturn its judgment, if that judgment is in fact correct. Lawyers Title Insurance Corp. v. Frieder, 147 Colo. 44, 362 P.2d 555; Denver-Albuquerque Motor Transport, Inc. v. Galligan, 145 Colo. 71, 358 P.2d 28.
We have reviewed the record and conclude that the evidence, taken in the light most favorable to plaintiffs' position, would not sustain a verdict in their favor. For this reason we hold that, even though dismissal was upon erroneous grounds, the ultimate judgment of the trial court was correct and should be affirmed.
*715 In so holding, we recognize the rule that in order to direct a verdict against plaintiffs at the close of their case in chief, the evidence must be reviewed in the light most favorable to them, drawing all legitimate inferences in their favor, and resolving all matters pertaining to credibility in their favor. Lee v. Missouri Pacific Railroad Co., 152 Colo. 179, 381 P.2d 35. Using such standards as a basis for our review, we find the record to be absent a prima facie showing of negligence on the part of the nurse on duty, from which would flow defendant's liability. Bernardi, supra.
Negligence is the deviation by defendant from the reasonable standards of care owed the plaintiff, which naturally and foreseeably results in injuries to the plaintiff. It is a failure to act as a reasonably prudent person would under the same or similar circumstances. Anderson v. Hudspeth Pine, Inc., 10 Cir., 299 F.2d 874: Hogue v. Colorado & Southern Railway Co., 110 Colo. 552, 136 P.2d 276. In the instant case, the defendant hospital was under a duty to exercise reasonable diligence in protecting patients undergoing treatment in its facilities. St. Lukes Hospital Association v. Long, 125 Colo. 25, 240 P.2d 917.
Where from the evidence presented, if but one reasonable conclusion might be reached as to the issue of negligence, it is a question of law to be answered by the court. Schaffner v. Smith, 158 Colo. 387, 407 P.2d 23.
Plaintiffs' argument is that by failure to put foot rails in place, the defendant hospital breached the duty owed to the patient, which breach proximately caused the injuries complained of.
We cannot agree with this argument. The facts show that plaintiff, a man of advanced age, was admitted for treatment of a heart attack. As was standard practice in the case of patients of plaintiff's age, side rails were put in place. No evidence was produced to indicate that the hospital should have anticipated that the patient would attempt to leave the bed in such a maneuver. As noted above, the duty owed the patient is that of reasonable care and safeguarding. St. Lukes Hospital Association, supra. A hospital cannot be an absolute insurer of the safety of its patients, but rather must use such reasonable care as would prevent foreseeable injuries from occurring.
Liability for one's actions must be judged in the light of the circumstances and possibilities apparent before the accident occurred, and is not determinable by looking back to see how the defendant might have prevented the injury. McMillan v. Hammond, 158 Colo. 40, 404 P.2d 549.
Plaintiffs failed to present any evidence that prior to this accident defendant should have been alert to the possibility that future harm would result from not putting the foot rails in place, or that, under the circumstances then existing, defendant had a duty of placing these rails at the foot of the bed.
Judgment affirmed.
SILVERSTEIN, C. J., and DUFFORD, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1278223/ | 201 S.E.2d 269 (1973)
Wilma KLESSER and Charles Klesser
v.
Rene W. STONE et al.
Kay Karen McLAIN
v.
Charles KLESSER et al.
Rene W. STONE
v.
Charles KLESSER and Wilma Klesser.
No. 13216.
Supreme Court of Appeals of West Virginia.
Submitted September 25, 1973.
Decided December 18, 1973.
*271 William C. Field, DiTrapano, Mitchell, Lawson & Field, William E. Mohler, Charleston, for Klesser.
Barber & DeBolt, Timothy N. Barber and Jack W. DeBolt, Charleston, for McLain.
John T. Poffenbarger, Jackson, Kelly, Holt & O'Farrell, Robert L. Elkins and William F. Dobbs, Jr., Charleston, for Stone.
*270 SPROUSE, Justice:
This is a consolidated civil action arising out of an automobile collision. Charles Klesser and Wilma Klesser, husband and wife, are plaintiffs against Rene W. Stone, defendant. Kay McLain is a plaintiff against Stone and the Klessers. The defendant Stone filed a separate action against the Klessers, but not against McLain who was his guest passenger. There were other defendants, but they received a directed verdict in their favor and are not involved in this appeal. The case, after consolidation, was tried in the Common Pleas Court of Kanawha County.
The jury returned a verdict for the plaintiff Wilma Klesser in the amount of $2,500.00 and for Charles Klesser in the amount of $1,000.00 both against the defendant Rene W. Stone. Kay McLain received a jury verdict of $7,500.00 against the defendant Stone. The verdicts were appealed to the Circuit Court of Kanawha County, which set them aside on the ground that the trial court improperly communicated to the jury without the knowledge of the parties or counsel for either party. The plaintiffs below appeal that ruling of the circuit court.
The collision involved was between an automobile operated by Wilma Klesser, which she and her husband jointly owned, and an automobile operated by Rene W. Stone in which Kay McLain was a passenger. Mrs. Klesser was operating her automobile in a southerly direction on Broad Street in Charleston, West Virginia. Rene W. Stone was proceeding easterly on Virginia Street. The intersection of Broad and Virginia Streets is controlled by electric traffic control devices commonly referred to as "red" and "green" lights.
Each of the drivers testified that, as they approached the intersection and entered into it, their respective traffic lights were green. The collision occurred near the center of the intersection. Testimony reflected each car was travelling at a normal rate of speed. There was evidence as to the parts of the vehicles involved in the impact, their relative position after impact, and the extent of the damages to the vehicles. This comprised the evidence on the question of liability. The case was submitted to the jury upon the issues of the negligence and contributory negligence of the respective parties and on questions of damages. The essential jury problem in ascertaining liability was determining who proceeded against the light through the intersection. The jury retired to deliberate and the trial judge proceeded with the trial of another and unrelated case as soon as the jury retired.
After some deliberation and during the trial of the different case, the bailiff was requested by a juror to deliver a written communication to the judge. The written communication was as follows:
"Your Honor: We cannot agree on who ran the red light. Can we place the liability on the party that we feel had the last chance to avoid the accident."
Without notifying counsel or calling the jury into open court, the judge made an oral reply to the bailiff and directed him to communicate his answer to the jury. The bailiff followed the judge's instructions.
*272 After the verdict was returned, and in the presence of the jury, the trial judge stated upon the record his response to the jury's question, which was:
"The Court could not answer any questions or give you any further information."
The court then inquired of the jury if that was the message they received, and the jury answered affirmatively. The trial court overruled a motion by counsel for the appellee that the court inquire of the jury if they determined who ran the red light.
The appellee cross-assigns three errors: (1) The verdicts rendered in favor of Charles Klesser and Wilma Klesser are excessive and should be set aside; (2) the trial court erred in giving Klessers' Instruction No. 4 dealing with recoverable damages by Charles Klesser; and (3) the trial court erred in admitting certain medical testimony in behalf of Kay Karen McLain because it was not of a character as would warrant a reasonable inference that the injury complained of was proximately caused by the negligent act of the defendant. The circuit court dismissed these points as being without merit. We agree with the circuit court that these assignments of error are all without merit.
The primary question presented for decision on this appeal is whether the incident of communication between the trial judge and the jury out of the presence of all parties and counsel was prejudicial error, and it is a question of first impression in this jurisdiction.
"As a general rule all communications between the trial judge and the jury, after submission of the cause, must take place in open court and in the presence of, or after notice to, the parties or their counsel." 89 C.J.S. Trial § 473, p. 115. A more amplified version of the general rule appears in 53 Am.Jur., Trial, Section 904, pages 649-50:
"All communications between the judge and jury, including any additional instructions given after their retirement, should be given in open court. * * * The judge may not hold private conversations with jurors at any stage of a trial. After submission of the cause, the judge may not enter the jury room and there, in the absence of the parties and their counsel, communicate with the jurors or advise them of their duties; communicate with them through others, give instructions by telephone, or send a written instruction or communication to the jury room, unless with consent of counsel. Any form of communication between the judge and the jury after the jury have retired to deliberate upon their verdict, unless made in the presence of or after notice to the parties, is improper. Any such action is improper even if done at the request of the jurors. * * *"
Despite the existence of a neatly categorized general rule, the courts have been truly diverse in their rulings on this important point of procedural law. The diversity is attributable not only to varying factual differences in various cases, but also to varying judicial standards, a fact apparent from decisions which reach different results on the same or similar facts.
A brief review of how the problem of such communication between the judge and the jury has been handled in various situations in different jurisdictions presents some perspective on the problem.
Numerous decisions have held communications between the judge and the jury, similar to the one involved in this case, not to constitute prejudicial error, where: A judge, in the absence of counsel, and through the bailiff told the jury that a verdict including attorney's fees was improper, and subsequently instructed them on the proper form of the verdict, Brown v. Barr, 269 Ala. 497, 113 So. 2d 924; a judge, after an unsuccessful attempt to locate counsel, told the jury that he did not remember the testimony that they requested, Haven v.
*273 Town of Brimfield, 345 Mass. 529, 188 N.E.2d 574; the judge, in the absence of counsel, answered a question instructing the jury on a phase of the case, Sherman v. Metropolitan Transit Authority, 345 Mass. 777, 189 N.E.2d 526; the trial court, in reply to a note from the jury, sent a message by the clerk to the jury concerning the form of the verdict, Wilson v. Hartley, 365 Mich. 188, 112 N.W.2d 567; a Nebraska trial court performed a mathematical computation for the jury and the Supreme Court of Nebraska held that, although it was error, it was without prejudice and not reversible, Barry v. Moore, 172 Neb. 57, 108 N.W.2d 401; in Minnesota a trial judge instructed a jury in the absence of counsel that there were no presumptions from the absence of one of the witnesses, Zuber v. Northern Pacific Railway Company, 246 Minn. 157, 74 N.W.2d 641.
Conversely, in other jurisdictions it was held that the trial judge committed reversible error, where he: Communicated to the jury through the bailiff that the jury's request for a rereading of the testimony could not be granted because of the illness of the court reporter, Halada v. Venice Lake Park, Inc., 132 Cal. App. 2d 788, 283 P.2d 42; committed other errors and replied to a message from the jury, in the absence of counsel, that they would have to use their own recollection concerning testimony, Guzzi v. Jersey Central Power & Light Company, 36 N.J.Super. 255, 115 A.2d 629; instructed a marshal to advise a jury negatively concerning an inquiry as to whether the plaintiff was receiving workmen's compensation benefits, Snyder v. Lehigh Valley Railroad Company, 245 F.2d 112 (3rd Cir.); in reply to their question advised jurors through the bailiff that plaintiff was receiving some workmen's compensation benefits, Peters v. State Industrial Accident Commission, 236 Or. 27, 386 P.2d 800; wrote to the jury, after their request for testimony, that they "must remember the testimony as given by the witnesses on the witness stand", Argiro v. Phillips Oil Company, 422 Pa. 433, 220 A.2d 654; instructed the court crier by telephone to write on the bottom of a note from the jury that they should continue deliberations, Kersey Manufacturing Company v. Rozic, 422 Pa. 564, 222 A.2d 713; replied to the jury in writing, in answer to their question as to whether the attorneys represented the insurance company or were personal attorneys, that the attorneys represented their clients but that the jury should consider only matters discussed in the judge's charge, Yarsunas v. Boros, 423 Pa. 364, 223 A.2d 696; told the foreman of the jury in his chambers in response to the question concerning damage that the jurors could read instructions given and that the damage instruction contained a complete answer to the foreman's inquiry, Hartgrove v. Chicago, B. & Q. R. Co., 358 Mo. 971, 218 S.W.2d 557.
A text writer, perhaps somewhat inadequately, summarizes the effect of these decisions:
"[Communication] is regarded as ground for a new trial or as constituting reversible error, irrespective, according to many courts, of the question of actual prejudice resulting therefrom and provided, according to others, the misconduct is not harmless. * * *" 53 Am.Jur., Trial, Section 904, page 650.
The former type of ruling is sometimes referred to by some text writers as the "strict" rule, but a comparison of the cases reveals no unified decisions which form a majority or minority rule. The cases rather have been decided on a case-by-case basis.
Cutting through the morass of judicial decisions to the essential issue, it is simply whether any communication between the judge and the jury out of the presence of counsel is reversible error in and of itself, or whether additionally a showing of prejudice is necessary.
The better conduct of a trial judge would be, of course, not to communicate with the jury or jurors outside the presence of parties or counsel. We would not *274 want to be in the position, however, of decreeing in advance that all formalities or pleasantries between a judge and a jury are ipso facto reversible error without reviewing the facts concerning each communication.
Courts are a human institution, and we cannot expect mechanical perfection even in such vital areas as jury consideration. Errors will appear in every trial. It is fundamental that to eradicate a completed adjudication of rights by granting a new trial the errors complained of must be prejudicial.
In order for a litigant's case to be prejudiced in this context, however, it is not necessary to prove a specific and demonstrable injury, damage or injustice to his case. A litigant has a right to an atmosphere of impartiality uncluttered procedures where justice is administered not only free from any suspicions of taint, but also free from a confused or malfunctioning machinery of justice. Where there is even a possibility of confusion or malfunction of our judicial system, litigants, either in person or by counsel, have a right to be present and to be heard. Our system recognizes that neither litigants, lawyers, judges nor jurors are perfect and that each principal participant in the mechanics of trial must be openly and uninhibitedly receptive to receiving the assistance of others in insuring a fair trial. This is true throughout the conduct of the trial and perhaps with greater force in the cumulative jury deliberation. If there is a communication to be had between the jury and the judge or vice versa, and it appears there is even a possibility that one of the parties might be prejudiced, it is essential that the party litigants be aware of that communication in order that they have the opportunity not only to protect their direct rights, but to assist the court in achieving a fair determination of the issues and in maintaining the appropriate aura of dignity and fairness. A trial by jury is one of the bedrocks of democracy and must be kept free from all improper influences and from the appearance of such influence.
A judge presiding over a jury trial is unique. The jury, as well as the litigants, look upon him as representing the public good the state. It is for these reasons that a trial court in communicating with a jury during its deliberations, must exercise the ultimate in judicial statesmanship. It is for these reasons that prejudice is more easily found where appropriate judicial restraint in this regard has not been applied.
The jury here was confused about the issue of primary negligence. They sought the trial judge's advice to resolve the confusion. It is obvious from his careful choice of language, he attempted not to influence the jury's decision. It is equally clear, however, that the parties and their counsel were available for consultation at the time the communication was received by the trial judge, and that they may well have had motions to make or suggestions to offer had they been consulted.
It is impossible to say that the communication sent by the judge to the jury had no effect. It was designed to be innocuous, and appeared to be innocuous and non-persuasive; yet, in view of the question it answered, it may have had some unpredictable meaning to the jury. The communication by the trial court to the jury in the absence of the litigants and their counsel, therefore, was prejudicial error, and the circuit court was correct in so finding.
Appellee further contends that the judge to jury communication was a denial of due process of law; that the trial judge should have provided the jury guidance after they indicated their confusion concerning the issue of primary negligence; that the judge's response was an improper instruction; that the court should have asked the jury whether they had decided who proceeded improperly through the traffic light; and that the verdict was improper because decided on issues not arising on the pleadings. In view of our decision on *275 the issue of communication between the judge and the jury, it is not necessary to further consider these questions.
For reasons stated in this opinion, the judgment of the Circuit Court of Kanawha County is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338548/ | 96 Ga. App. 158 (1957)
99 S.E.2d 534
SMITH
v.
MANLEY et al.
36756.
Court of Appeals of Georgia.
Decided June 17, 1957.
Rehearing Denied July 2, 1957.
Herbert Edmondson, for plaintiff in error.
Wheeler, Robinson & Thurmond, contra.
TOWNSEND, J.
1. An assignment of error on the exclusion of documentary evidence which fails to set out in substance or by way of exhibit the document excluded, and which fails to state the objections to the admission of such evidence which were sustained by the court, is too vague and indefinite to present any question to this court. Central of Ga. Ry. Co. v. Jaques & Tinsley Co., 23 Ga. App. 396 (2) (98 S.E. 357); Harper v. Sutherland, 44 Ga. App. 594 (3) (162 S.E. 412). Accordingly, an assignment of error as follows cannot be considered here: "The objector as temporary guardian of Rita Smith tendered in evidence a certified copy of his letters of temporary guardianship of the person . . . of Rita Smith. *159 That petitioners urged certain objections to said certified copy of these letters and . . . the trial judge . . . denied their admission in evidence as being temporary guardian of the person of Rita Smith. To the ruling of the trial court in refusing to admit the temporary letters as to the person of Rita Smith, the objector then and there excepted and now excepts and assigns error thereon as being contrary to law and without authority to support it."
2. Prior to 1941 the consent of the guardian of the person of an orphan minor child was not required in an adoption proceeding. By the act of 1941 (Ga. L. 1941, p. 301; Code, Ann., § 74-406) it was provided as follows: "If the child has a guardian of its person, the consent of such guardian shall be required." The Code section does not make clear whether or not the word "guardian" includes a temporary guardian, and it is not necessary here to decide this question. By way of comparison only, see Wilson v. Pollard, 190 Ga. 74 (1) (8 S.E.2d 380), where circumstances are considered under which the word "administrator" in a statute may include a temporary administrator. The plaintiff in error here, contesting an adoption proceeding brought in the Superior Court of Hall County, contended that as temporary guardian of the person of the minor child in question, his consent to the adoption of such child by the defendants in error was essential, and that he had not given such consent. He assigns error on the interlocutory order awarding custody of the child to the defendants in error, on the judgment of the court overruling his motion to dismiss because his consent to the adoption proceeding had not been obtained, and on the exclusion from evidence of a certified copy of letters of guardianship of the person of the child allegedly granted him by the Ordinary of Hall County. The latter assignment of error, as has been seen above, is invalid, and there is accordingly no evidence in the record, either in the evidence or stipulation of counsel, that the plaintiff in error is in fact the temporary guardian of the person of the minor child. This being so, the objections of the plaintiff in error to the overruling of his motion to dismiss and to the judgment rendered are entirely without merit, and it becomes unnecessary to go into the question of whether or not he could, in the capacity of temporary guardian of the person only, raise a valid objection to the adoption.
*160 The trial court did not err in granting the temporary order of adoption.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
ON REHEARING.
The plaintiff in error complains in his motion to rehear of the last clause of the first sentence of headnote 1 ("and which fails to state the objections to the admission of such evidence which were sustained by the court") contending this is an erroneous application of the law as held in Morgan County Bank v. Poullain, 157 Ga. 423 (121 S.E. 813, 33 A. L. R. 592). The Supreme Court in that case, in answer to a certified question of the Court of Appeals, ruled that an assignment of error in a ground of a motion for a new trial complaining of the rejection of testimony offered by the movant need not state the ground of objection urged by the opposite party or sustained by the court as this reason may be unknown to the movant. If this were all that was said in headnote 1, the contentions of the plaintiff in error would be entirely correct. However, a careful examination of the first sentence of this headnote will disclose that what is there held is that where the documentary evidence excluded is not set out in substance or by exhibit and also where the record fails to show why such documentary evidence was rejected, the assignment of error is too vague and indefinite to present any question to this court.
The documentary evidence in question is identified as follows: "The objector, Jewell Smith, as temporary guardian of Rita Smith, tendered in evidence a certified copy of his letters of temporary guardianship of the person and property of Rita Smith . . . To the ruling of the trial court in refusing to admit the temporary letters as to the person of Rita Smith, the objector then and there excepted," etc. Movant contends that this complies with the rule that he must "set out in substance the document excluded." This court cannot agree, for the reason *161 that while movant has identified a certain document which is not in evidence as being the one he offered in evidence, he has failed to show the substance of the document sufficiently to allow this court to determine whether, if the subject matter were admissible, the document itself was in proper form to be admitted in evidence. This court knows nothing about whether the document, which was the best evidence of the fact that movant was temporary guardian of the person of the minor involved, was properly certified or otherwise in proper form to be admitted in evidence. If the document had been set out and there had been a defect therein such as to render it inadmissible, the reason for the ruling of the trial court would have become apparent to this court. On the other hand if the document were set out and was thereby shown to be in proper form and otherwise admissible in evidence, the error of the trial court in excluding it would have become apparent to this court. Again, if the document were not set out but the reason for excluding it had been stated, and if the reason were such that the court, from the description of the document given by movant in the bill of exceptions, could pass on it, the assignment of error would be sufficient. But where the document is not set out, and the reason for its exclusion is not set out, and it is just as likely that it was excluded by reason of being in improper form as by reason of its subject matter (temporary guardianship of the person) this court cannot do more than speculate as to whether it was, as a matter of fact, admissible in evidence, and this court will not presume the trial court committed error where that fact does not affirmatively appear. Movant seeks to invoke a ruling by this court to the effect that it was relevant and material for him to prove that he was the temporary guardian of the person of the minor child, but he seeks to do so by assigning error on the exclusion of a document which is not before the court, for a reason unknown to the court, and without which he has failed to show that he was in fact such temporary guardian of the person. Under these circumstances, no reversible error on the part of the trial court in rejecting the documentary evidence has been shown. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2577834/ | 21 F. Supp. 2d 242 (1998)
Samuel EDMONSON, Plaintiff,
v.
Thomas A. COUGHLIN III, et al., Defendants.
No. 94-CV-6144L.
United States District Court, W.D. New York.
September 30, 1998.
*243 *244 Sam Edmonson, Pine City, NY, plaintiff pro se.
Carlos Rodriguez, Office of New York State Atty. Gen., Rochester, NY, for Defendants.
DECISION AND ORDER
LARIMER, Chief Judge.
INTRODUCTION
This action is brought pursuant to 28 U.S.C. § 1983. Plaintiff alleges that the defendants violated his constitutional rights, while he was confined at Attica Correctional Facility ("Attica"). Defendants include Thomas A. Coughlin, then Commissioner of New York State Department of Correctional Services ("DOCS"), Attica Superintendent Walter R. Kelly, and other supervisory staff, correction officers and civilian staff at Attica.
Pending before the Court is defendants' motion for summary judgment. For the following reasons, defendants' motion is granted.
BACKGROUND
The plaintiff, Samuel Edmonson, is an inmate in the custody DOCS. In 1990, he was convicted of two counts of murder in the second degree, and given a prison sentence of seventy-five years to life. Amended Complaint, Document No. 20, ¶¶ 23-24.
Edmonson was committed to DOCS' custody in July, 1990. On July 16, 1990, he was transferred to Attica. Upon arrival, he was placed in administrative segregation ("AS") in the facility's Special Housing Unit ("SHU"). Amended Complaint ¶ 24. Three days later, he was served with an AS recommendation form, which gave the following reason for his confinement.
After review of documentation and confidential information pertaining to this inmate and to his highly publicized case, including profligate escape attempts, it is determined that his presence in general population would pose a threat to the safe and secure operation of the facility.
Amended Complaint ¶ 26, Defendants' Motion for Summary Judgment, Exhibit 6(A). The following day, Edmonson was interviewed by Lt. George. Edmonson denied that there was any reason for him to be in AS. Amended Complaint ¶ 26, H3[1]. Lt. George filed a report of his interview, H3; however, Edmonson's AS confinement continued.
A hearing to review the basis for Edmonson's placement in AS was conducted by Capt. Roy Henneberg on July 22, 1990. The hearing focused on the two sources mentioned in the AS recommendation, a confidential informant, and a series of newspaper articles that reported an escape plan during Edmonson's criminal trial. Edmonson asked whether he would have an opportunity to review the confidential information. H7. The hearing officer responded:
the confidential information is held in camera and what that means is that it can be reviewed by the person that you send any appeal to departmentally ... they would then review the confidential information and if in their opinion, they felt that it was substantial enough to maintain you in admin. seg., they would again hold it in camera. ... [T]hen if you decided to go to state or federal courts, the people that could review the confidential information then would be the judge or judges involved in any case. They would review the confidential *245 information. At each step a determination would be made as to whether or not the confidential information is sufficient to [support] the determination.
H7.
Edmonson contested the accuracy of the newspaper articles, saying that they were "all propaganda." H5. The articles describe a plot to hijack a helicopter from a heliport in New York, and to land the helicopter at the Brooklyn House of Detention, where Edmonson was housed during his trial. The articles also describe the extensive precautions taken by city and Federal law enforcement officers in response to the reported plot. Copies of the articles, which were introduced as exhibits at the hearing, are included as part of Exhibit 6(C).
Edmonson asserted that the trial judge had said that he did not believe the articles, but had to take precautions. H5. Capt. Henneberg responded that he understood the judge's response, and suggested that "the administration of this facility also has to take precautions." S5-6.
Later in the hearing, the Capt. Henneberg adverted to the notoriety of Edmonson's case. Initially, Edmonson stated that he did not feel that his case was more notorious than other Attica inmates' cases. T18. However, he acknowledged that he had been "stabbed seven times as a result of media attention ... I was attacked by some inmates who tried to extort me." Id. Wounds from the knife attack, which occurred in the holding center in New York, required 75 stitches to close. Id. Edmonson also acknowledged that at least some Attica inmates would be familiar with the newspaper reports. Id.
In response to an inquiry regarding restrictions in AS, Henneberg informed Edmonson that he would be subjected to most of the rules that apply to disciplinary SHU. H15-16. He then rendered his decision, finding that Edmonson should remain in AS, subject to periodic review. H20, Exhibit 6(C). The determination was based on the newspaper articles, as well as "confidential information reviewed by this hearing officer and available for administrative or judicial review." Id. Edmonson filed an administrative appeal of the AS determination, which was affirmed on September 25, 1990. Amended Complaint ¶ 31.
Subsequent to the hearing, Edmonson's AS confinement was subject to review by an Administrative Segregation Review Committee ("ASRC"), pursuant to DOCS' regulations. The committee issued its recommendations in weekly memoranda.[2] The weekly entries for Edmonson all indicate the same basis for continuing his AS confinement, that due to his highly publicized case, and the reports of escape attempts, Edmonson's presence in general population would pose a threat to safety and security of facility. Exhibit 10.
Deputy Superintendent Hall, chairman of the ASRC, acknowledged that its meetings took place "outside of plaintiff's presence and participation," Hall Affidavit, Exhibit 5, ¶ 20. Edmonson did not appear before the ASRC, and apparently did not submit any evidence or statement to the committee. There is no provision in DOCS' regulations for notice to AS prisoners of the ASRC reviews, or for submission of evidence to the committee. However, Corrections Counsellor Hermann, a committee member, states that "Edmonson could have submitted any concerns or comments to his counselor, who would forward them to the ASRC." Herrmann also asserts that Edmonson could have sent a "tab" or note to the ASRC stating his position regarding his AS confinement. She states that she does not recall Edmonson ever availing himself of such access to the ASRC. Herrmann Aff., Exhibit 7, ¶¶ 15-18. Edmonson alleges that he attempted to send tabs to the ASRC, an assertion apparently confirmed by Supt. Kelly. Plaintiff's Affidavit, Document No. 50, ¶ 65; Kelly Aff. ¶¶ 46-50.
The weekly ASRC recommendations were submitted to Supt. Kelly, who then made the *246 determination to continue Edmonson's AS confinement. Kelly Affidavit, ¶¶ 34-36. Edmonson asserts that he did not receive notice of the ASRC recommendations, or of Supt. Kelly's review or decisions. Amended Complaint ¶ 41. Nothing in the record contradicts that assertion.
Edmonson remained in AS at Attica until March 22, 1991, when he was transferred to Wende Correctional Facility ("Wende"). He was released to general population shortly after his transfer to Wende. Id. ¶ 32.
DISCUSSION
The complaint sets forth eight claims. Four claims relate to the AS hearing, one concerns the pre-hearing interview and three claims challenge the ASRC review process. Seven claims are based on the Due Process Clauses in the United States, and New York Constitutions. The eighth claim is based on DOCS' regulations. The merits of such claims are discussed below.
Defendants base their summary judgment motion on the following grounds: (1) the claims are time barred; (2) plaintiff's AS confinement did not implicate a liberty interest; (3) there was no denial of due process at the hearing or in post-hearing reviews of plaintiff's AS status; (4) the defendants were not personally involved in any alleged Constitutional deprivation and (5) the defendants are entitled to qualified immunity from liability for damages. In addition to the grounds raised by the defendant, the court will also address the question of its subject matter jurisdiction over Edmonson's state law claim.
I. Summary Judgment Standards
Federal Rule of Civil Procedure 56(c) provides that summary judgment is warranted where "there is no genuine issue of any material fact and ... the moving party is entitled to a judgment as a matter of law." A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Rule 56(e) provides that a party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but ... must set forth specific facts showing that there is a genuine issue for trial."
In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Adickes v. S.H. Kress and Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). However, a summary judgment motion will not be defeated merely on the basis of a "metaphysical doubt" about the facts, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), or of "conjecture or surmise" Bryant, 923 F.2d at 982.
II. Statute of Limitations
A civil action brought pursuant to 28 U.S.C. § 1983 is governed by the state statute of limitations applicable to personal injury actions. Wilson v. Garcia, 471 U.S. 261, 279-280, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985). In a state such as New York, in which there is more than one statute of limitations for personal injury actions, the residual or general statute of limitations should be applied. Owens v. Okure, 488 U.S. 235, 251, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989); Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir.1995). Accordingly, Plaintiffs § 1983 action is governed by the three-year statute of limitations prescribed by Civil Practice Law and Rules ("CPLR") § 214(5) (McKinney's 1990).
Plaintiffs claims are based on his continuous AS confinement between July 17, 1990 and March 22, 1991. Plaintiff thus asserts a continuing violation of his rights, for statute of limitations purposes. Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir.1994). His claims accrued, and the statute began to run at the time of his release from Attica's AS, March 22, 1991. Id.
Although the complaint was filed by the clerk of the court on March 24, 1994, *247 three years and two days after the claims had accrued, such claims are not barred by the statute of limitations. Generally, pleadings are deemed filed on the date that they are actually received by the clerk of the court. However, a prisoner's pro se § 1983 complaint is deemed filed, for statute of limitations purposes, when it is delivered to prison officials for transmittal to the court. Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993); Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988).
This exception to the general rule is required because of the unique difficulties faced by pro se prisoners, who can not take steps other litigants can take to monitor the transmission of their papers. Because of their confinement, inmates have no choice but to rely on prison staff to file their legal papers, and are at the mercy of such staff, should there be any delay in forwarding papers to the court. Dory, 999 F.2d at 682; Houston, 487 U.S. at 275, 108 S. Ct. 2379.
For statute of limitations purposes, therefore, the relevant date is the date that Edmonson delivered his complaint to the appropriate prison official for forwarding to the court. That date is not evident from the record. However, a review of Edmonson's other submissions in the present action suggests that transmission to the court from the facility typically takes at least two days. Edmonson's complaint therefore, is deemed filed within the statute of limitations.
III. Liberty Interest
The Supreme Court has held that a prisoner's confinement in SHU[3] does not necessarily implicate a liberty interest protected by Due Process. Rather, a liberty interest
will be generally limited to freedom of restraint which, while not exceeding the [prison] sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force ... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.
Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995).
As Sandin suggests, a liberty interest may be derived either from the Due Process Clause itself, or from state statutes and regulations. Arce v. Walker 139 F.3d 329, 333 (2d Cir.1998), citing Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989). There are rare instances in which a condition "exceed[s] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force." Sandin, 515 U.S. at 484, 115 S. Ct. 2293. The Sandin decision cited two such instances: transfer of a prisoner to a mental hospital, as in Vitek v. Jones, 445 U.S. 480, 493, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980); and involuntary medication of a prisoner with psychotropic drugs as in Washington v. Harper, 494 U.S. 210, 221-222, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990). In those cases, the inmate was confronted with a situation qualitatively different from incarceration, as that term is commonly understood. Sandin, 515 U.S. at 484, 115 S. Ct. at 2300.
Since transfer to SHU is not such an "unexpected" event as to implicate the Due Process Clause of its own force, Edmonson must satisfy a two part test. He must demonstrate that his SHU confinement imposed "an atypical and significant hardship ... in relation to the ordinary incidents of prison life"; and must also show that the statute or regulation authorizing his confinement uses language which creates the expectation of a liberty interest. Sandin, 515 U.S. at 484, 115 S. Ct. 2293.
In Hewitt v. Helms, 459 U.S. 460, 471-472, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), the court held that an expectation of a liberty interest is created when a statute or regulation is couched in "language of an unmistakably mandatory character" and bases a deprivation upon "specified substantive predicates." Sandin did not modify this holding; rather, it added an additional requirement, namely that the deprivation be "atypical" of *248 prison life. Sandin, 515 U.S. at 484-485, 115 S. Ct. 2293; Arce 139 F.3d at 334 ("[a] prison inmate is now required to meet a two-part test to establish the existence of a liberty interest.").
Defendants contend that Edmonson does not meet either part of the Sandin test. They assert that his AS confinement was not atypical of prison life, and they argue that their regulations are not couched in language essential to the creation of a liberty interest.
A. DOCS' Regulations
DOCS' regulations define a substantive predicate for administrative segregation, namely a determination that the inmate's presence in general population would pose a threat to the safety and security of the facility. 7 N.Y.C.R.R. § 301.4(b). The regulations also require that AS inmates receive the same type of hearing as disciplinary SHU inmates. 7 N.Y.C.R.R. § 301.4(a). That hearing procedure is defined in mandatory terms. An inmate must receive a written notice of reason for his confinement, in his native language. 7 N.Y.C.R.R. § 254.2. An employee assistant must meet with the inmate if he does not understand English, or is confined to SHU pending the hearing. 7 N.Y.C.R.R. § 251-4.1. The hearing must be conducted by an impartial hearing officer who was not involved in the underlying incident. 7 N.Y.C.R.R. § 254.1. The inmate must be permitted to attend the hearing, unless he is disruptive; and must be permitted to submit documents and call witnesses, unless the hearing officer finds that they are redundant or irrelevant. 7 N.Y.C.R.R. §§ 254.5, 254.6(b). The hearing must be electronically recorded, and must be completed within 14 days. 7 N.Y.C.R.R. §§ 251-5(b), 254.6(b). The hearing officer must render a written decision, setting forth the basis for his determination. 7 N.Y.C.R.R. § 254.7. The inmate must receive a copy of the determination, and be informed of his right to an administrative appeal. 7 N.Y.C.R.R. § 254.8. All of these requirements are mandatory. A hearing officer has limited discretion, for example to decline requests for redundant testimony; however, he is not permitted to ignore procedures defined in the regulations, for example by denying all witnesses.
DOCS' regulations are couched in mandatory language and require that AS be based on a defined substantive predicate. They, therefore, meet the criteria defined in Hewitt and in Sandin for creation of a liberty interest. McClary v. Kelly, 4 F. Supp. 2d 195, 211-212 (W.D.N.Y.1998).
B. Duration and Extent of the Deprivation
It is clear that "[a]fter Sandin, in order to determine whether a prisoner has a liberty interest in avoiding [SHU] confinement, a court must examine the specific circumstances" of the confinement. Brooks 112 F.3d at 49; Miller 111 F.3d at 9. This analysis "turns on the duration of the segregation and a comparison with the conditions in the general population and in other categories of segregation." Arce 139 F.3d at 336. The same analysis is required whether SHU confinement is administrative or punitive. Id.
Both the duration and extent of deprivation must be considered, and the two are interrelated. For example, in Arce, which involved an eighteen-day term in AS, the court held that restrictions on the plaintiff's activities were "more than offset by the relative brevity of' the term. Arce, 139 F.3d at 337. The court took care to note that this conclusion was not based solely on the duration of the plaintiffs confinement, although duration was a critical factor. Id.
Many of the material facts regarding Edmonson's AS confinement are uncontested. The parties do not contest the length of that confinement, and are in general agreement regarding the deprivations endured by AS inmates. SHUs, are defined as "single occupancy cells grouped so as to provide separation from the general population." 7 N.Y.C.R.R. § 300.2(b). An inmate may be placed in SHU as a penalty for violating DOCS' inmate rules, for the inmate's protection, for administrative reasons, or for certain other purposes, not relevant to the present discussion. 7 N.Y.C.R.R. §§ 301.2 through 301.7. AS inmates are housed in SHU, and are subject to most of the restrictions *249 that apply to disciplinary SHU inmates.[4]
SHU inmates are confined in their cells 22 to 23 hours per day. They are permitted to leave their cells for one hour of exercise per day, for two showers per week, for any legal visits and one non-legal visit per week, and for occasional appointments with medical or other support staff. 7 N.Y.C.R.R. Part 304. Inmates eat all meals in their cells. 7 N.Y.C.R.R. § 304.2.
In general population, inmates generally have more social interaction and mobility. They are typically let out of their cells for meals, recreation, visits, congregate religious services, jobs, vocational programs, classes, and services such as drug or alcohol counseling. However, general population prisoners also spend a significant part of each day locked in their individual cells. Affidavit of Anthony Annucci, Exhibit 14, at ¶¶ 17-20. Most inmates in general population participate in some type of programming, such as classroom instruction, vocational training or a job assignment. However, at any given time, a significant number of inmates are not in a program, due to staffing or space limitations or the lack of a particular program at a facility.
SHU inmates are not permitted to participate in congregate activities such as vocational programs, classes, work assignments, religious services, or group counseling. Annucci Aff. ¶ 18. Some services, such as medical or mental health care, library services, and cell study are available to SHU inmates, at their SHU cells, or during a "call-out," in which the prisoner is escorted to an interview room or other location. Annucci Aff. ¶ 15; 7 N.Y.C.R.R. §§ 304.4, 304.7-304.12.
These facts suggest that there is no single deprivation that is unique to SHU. At one time or another any DOCS inmate, in general population or otherwise, can expect to endure the types of deprivation that occur in SHU. However, while most inmates may expect to be isolated from other people or denied access to programs at some point in their incarceration, long term isolation or idleness are much less typical. The duration of SHU confinement is, therefore, a critical factor.
Defendants have submitted statistical analyses, showing the frequency and duration of SHU confinements. Annucci Aff. ¶¶ 10-13, Exhibits 14(A) to 14(E). Although the statistics do not relate to the precise period when Edmonson was confined to AS,[5] they are useful in assessing the typicality of his confinement.
DOCS inmates are housed in 70 different facilities, classified as maximum, medium or minimum security facilities. Inmates are also classified maximum, medium or minimum security. DOCS attempts to match prisoners' and prisons' security classifications, e.g. placing maximum security prisoners in a maximum facility; however, it is not always possible to do so. Edmonson was a maximum security inmate, housed at a maximum security facility, Attica. Annucci Aff. ¶ 5.
Cell confinement of some type is clearly not an atypical experience for a DOCS inmate. In 1993, 97,537 inmates were in DOCS custody for all or part of the year. Exhibit 14(A). That year, 39,627, or roughly 40% of DOCS inmates received a disciplinary sanction involving cell confinement of some kind. Exhibit 14(D). Such sanctions include SHU, as well as lesser degrees of restriction such as keeplock and cube confinement. Id. The lesser sanctions are applied with greater frequency, with SHU reserved as punishment for more serious infractions. Of the 39,627 inmates subjected to disciplinary confinement, 35,023 received keeplock or cube confinement and 4,604 went to SHU. Exhibit 14(D), page 1. Thus, SHU was an aspect of prison experience for approximately 5% of *250 DOCS inmates in 1993, and can not be considered atypical per se.
AS confinement is less common than disciplinary SHU. Exhibit 14(E). DOCS has not provided statistics showing the duration of AS confinements. However, since conditions of confinement are nearly identical for AS and disciplinary SHU inmates, statistics regarding SHU confinements can be used to ascertain the relative frequency or rarity of Edmonson's SHU term.
These figures suggest a number of conclusions concerning the typicality of Edmonson's SHU confinement. First, it is not rare for a DOCS inmate to spend at least part of his or her prison term in SHU. If one adds inmates on keeplock or cube confinement status, it is evident that a considerable segment of DOCS' inmate population endures cell confinement at some point, while in DOCS custody. Longer SHU confinement is less common. DOCS' statistics do not indicate the percentage of inmates who served SHU terms longer and shorter than Edmonson's eight month term. However, they show that 1,664, or about 2% of inmates in DOCS' custody in 1993, served SHU terms of six months or more. Exhibit 14(D), page 8. These statistics indicate that a significant percentage of DOCS inmates serve SHU terms as long as, or longer than Edmonson's, with some inmates serving a year or more in SHU.
The above statistical analysis relates to inmates who are subject to confinement in SHU, and other restricted settings in a given year. Obviously, the likelihood that a particular inmate will spend significant time in SHU increases if he is serving a longer sentence. Edmonson is serving a sentence of seventy-five years to life. In determining whether SHU confinement is "a dramatic departure from the basic conditions of [his] sentence," Sandin, 515 U.S. at 485, 115 S. Ct. 2293, the court should consider the length of that sentence. Thus, in Sandin, the court held that
[t]he regime to which [the plaintiff] was subjected as a result of the misconduct hearing was within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life.
Sandin, 515 U.S. at 487, 115 S. Ct. 2293. Cf. Arce, 139 F.3d at 336 (SHU term not atypical, given plaintiff's sentence of 25 years to life); Roucchio v. Coughlin, 923 F. Supp. 360, 373 (E.D.N.Y.1996) (plaintiff's 47 day SHU term not atypical "in view of the 15-years-to-life duration of his sentence.")
The detailed factfinding required in a Sandin determination does not preclude summary judgment, so long as the court "examine[s] the circumstances of [the plaintiff's] segregation, and articulate[s] the facts on which its conclusion [is] predicated." Arce, 139 F.3d at 336. Cf. Frazier v. Coughlin 81 F.3d 313, 317 (2d Cir.1996) (judgment as a matter of law proper, given "the extensive fact-finding of the district court").
Courts in this circuit have consistently held that confinement for periods approximating the duration of Edmonson's confinement do not implicate a liberty interest under Sandin. Delaney v. Selsky, 899 F. Supp. 923, 927 (N.D.N.Y.1995) (197 days); Carter v. Carriero, 905 F. Supp. 99, 104 (W.D.N.Y. 1995) (270 days) Warren v. Irvin, 985 F. Supp. 350, 354-355 (W.D.N.Y.1997) (161 days); Tulloch v. Coughlin, 1995 WL 780970 (W.D.N.Y.1995) at *2-3 (180 days); Trice v. Clark 1996 WL 257578 (S.D.N.Y.1996), at *1, 3 (aff'd. on other grounds, 131 F.3d 132, 1997 WL 738116 (2d Cir.1997) (table) (150 days); Brooks v. DiFasi, 1997 WL 436750 (W.D.N.Y.1997) (on remand) 180 days). All of these decisions involved SHUs in New York DOCS facilities; the SHUs in such cases were all subject to DOCS' rules regarding privileges and restrictions in SHU and all the decisions describe living conditions similar to those that Edmonson endured.
These holdings are consistent with decisions in other Circuits. Griffin v. Vaughn, 112 F.3d 703, 705, 709 (3d Cir.1997) (15 months in AS not atypical, under Sandin); Mackey v. Dyke, 111 F.3d 460, 461, 463 (6th Cir.1997) (117 days in AS not atypical).
Therefore, in my view, Edmonson's eight month term in AS is within the range of confinement to be expected for one serving a sentence of 75 years to life, and is not such a dramatic departure as to implicate a liberty *251 interest, protected by the Due Process Clause.
Defendants are entitled to summary judgment, because Edmonson's AS confinement did not implicate a liberty interest.
IV. The Hearing
Defendants are also entitled to summary judgment, because they afforded Edmonson the procedural protections that Due Process would require, if a liberty interest had been implicated. Hewitt, 459 U.S. at 469-472, 103 S. Ct. 864. Although Sandin significantly modified the standard for determining when a liberty interest is implicated, it did not revise the definition of "the process that is due," as set forth in Hewitt, 459 U.S. at 475-476, 103 S. Ct. 864. Hewitt held that Due Process requires only "an informal, nonadversary evidentiary review" of administrative segregation decisions. Id. The process for reviewing AS decisions need not include all the components of a disciplinary hearing, as defined in Wolff v. McDonnell 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). In an AS review,
[a]n inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and the then-available evidence against the prisoner, the Due Process Clause is satisfied.
Hewitt, 459 U.S. at 476, 103 S. Ct. 864. The court explicitly declined to impose more formal, adversarial procedures applicable to disciplinary hearings. Hewitt, 459 U.S. at 473-475, 103 S. Ct. 864. When a prison official reviews an inmate's transfer to AS, the inmate does not have a Due Process right to be present, to call witnesses, or to submit evidence. Id.[6]
Edmonson claims that the hearing determination was not supported by sufficient evidence, that the hearing officer improperly relied on confidential information, and that he was improperly denied access to such confidential information. Amended Complaint ¶¶ 29, 38-40, 48, 49-51.
A hearing determination must be supported by "some evidence" Sup't Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985). In Hill, the court rejected a higher evidentiary standard, holding that court review of such determinations
[d]oes not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the [decision].
Hill, 472 U.S. at 455, 105 S. Ct. 2768.
The term "evidence" in this context must be read in light of the function of administrative segregation, as described in Hewitt. In that case, the court stressed the volatile atmosphere in prisons, and noted that decisions are often based on "subjective evaluations and on predictions of future behavior" in which prison officials' intuitive judgment is a key factor. Hewitt, 459 U.S. at 474-476, 103 S. Ct. at 872-873. This does not mean that courts must defer to such officials' unfounded conclusions. However, a judgment call based on evidence that might not be admissible in a civil trial can constitute "some evidence" in support of AS confinement. Id.
*252 It is clear from the record before the court that there was sufficient evidentiary support for the hearing officer's decision in this case. The hearing officer noted widespread publicity of Edmonson's criminal trial, the notoriety of his crime, and newspaper reports of an elaborate escape plan that allegedly involved Edmonson, while he was awaiting trial. Although the hearing officer stated that he did not have a basis for confirming or rebutting the newspaper reports, he took note of the elaborate precautions that had been taken by New York and Federal law enforcement officers in response to the reported escape plan, and noted that "the facility [also] has to take precautions." H6. Under the circumstances, and given the serious nature of the escape plan described in the news reports, this court finds that the hearing officer's determination was based on some evidence, as defined in Hill.
Edmonson claims that the defendants improperly shifted the burden of proof to him, to disprove their rationale for confining him in AS. Amended Complaint ¶ 50. Although the court appreciates the difficulty of disproving the allegations in Edmonson's hearing, he does not state a Federal claim. Given that a hearing determination need only be supported by some evidence, not a preponderance, and that formal rules of evidence need not be followed in AS reviews, there is no basis for a claim that placing the burden of proof on him violated due process.
Edmonson also claims that the hearing officer improperly denied him access to the confidential information. Amended Complaint ¶¶ 29-30. A hearing officer is not required to disclose a confidential informant's testimony to an accused inmate in a disciplinary hearing. Giakoumelos v. Coughlin, 88 F.3d 56, 61 (2d Cir.1996). Since due process requirements for an AS review are less stringent than for disciplinary hearings, Hewitt, 459 U.S. at 473-475, 103 S. Ct. 864, there is no requirement that confidential testimony be disclosed during an AS review.
Edmonson also claims that the hearing officer made no independent evaluation of the reliability of the confidential information. Amended Complaint, ¶¶ 30-48. At the conclusion of the hearing, Capt. Henneberg stated that his determination was based, in part, on "confidential information reviewed by this hearing officer." H20. Henneberg did not explicitly state that he determined the confidential information to be reliable; however, one can infer that he made such a determination, since the information was, explicitly, a basis for his decision.
That inference is supported by Henneberg's statements during the hearing. In response to Edmonson's inquiry, Henneberg stated that the confidential information had been held "in camera" and would be available for review on administrative appeal, or in any judicial review of the AS determination. H7. "At each step a determination would be made as to whether or not the confidential information is sufficient" to support the determination. H7. Inferentially "at each step" included the hearing itself. This Court therefore holds that Capt. Henneberg did not violate Edmonson's Due Process with regard to the confidential information.
In any event, there is sufficient support in the record for the determination, independent of the confidential information. In order to obtain damages under § 1983, the plaintiff must show that his constitutional rights were violated, and that he suffered harm as a consequence. Carey v. Piphus, 435 U.S. 247, 254-255, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978); McCann v. Coughlin 698 F.2d 112, 126 (2d Cir.1983). This means that a plaintiff must show that he would not have been sent to SHU, but for the due process violations McCann 698 F.2d at 126. Even if one were to exclude confidential information as a basis for Edmonson's AS confinement, there was sufficient evidentiary support for the hearing determination.
Edmonson's claims related to conduct of the AS hearing, must be dismissed, because his AS confinement did not implicate a liberty interest protected by the Due Process Clause, and because he was afforded the procedures that Due Process would require at his hearing.
V. Post-Hearing Review of Edmonson's AS Confinement
Edmonson also claims that the defendants deprived him of liberty without due process *253 by indefinitely continuing his confinement in AS, with no a meaningful periodic review of his status. He asserts that he received no notice of any review of his AS status subsequent to the hearing, Amended Complaint ¶ 52. He also asserts that no meaningful review took place. Id. ¶ 53.
A prisoner confined indefinitely to AS is entitled to "some sort of periodic review" of his confinement. Hewitt v. Helms, 459 U.S. at 477 n. 9, 103 S. Ct. 864. Such periodical review "will not necessarily require that prison officials permit the submission of any additional evidence or statements," and a decision to continue a prisoner in AS may be based on the same facts and security considerations that compelled his initial transfer to AS. Id. Although the periodic review can be done informally, it must, nevertheless, be meaningful, in order to insure that extended AS is not "a pretext for indefinite confinement of an inmate." Id.
DOCS' regulations require that all AS confinements be reviewed every seven days, for the first month, and every thirty days thereafter. 7 N.Y.C.R.R. § 301.4(d). The review is conducted in the first instance by the ASRC, which consists of a member of the facility's executive staff, a security supervisor and a member of the guidance and counseling staff. Id. The ASCR forwards its recommendation to the superintendent, who makes a final determination regarding the inmate's AS status. Id. DOCS has therefore, defined a procedure for the periodic review of all AS cases.
In Edmonson's case, the ASRC submitted weekly recommendations, in the form of memoranda, to Superintendent Kelly, for the duration of his AS confinement. Kelly aff., Ex. 10. The memoranda, which were couched in identical language, all recommended that Edmonson be retained in AS, based on the grounds asserted at his initial AS hearing. Superintendent Kelly approved each extension of Edmonson's AS status, based on the ASRC recommendations. Thus, Attica appears to have complied with DOCS' regulations, regarding review of AS cases.
Edmonson argues that he did not receive notice of ASRC meetings or decisions, or of Kelly's review of ASRC recommendations. This assertion does not support a Due Process claim. Hewitt did not require such notice, and can not be read as making notice a pre se due process requirement. Edmonson's claim that he was denied due process, because he did not receive notice of the review of his AS status must be dismissed.
Edmonson also argues that there was no meaningful review of his status, asserting that the ASRC and Kelly essentially "rubber stamped" the initial determination to place him in AS. He points to the identical language in the recommendations, the absence of evidence that any new information was considered, the fact that he was not given an opportunity to submit a statement to the ASRC, and Kelly's admission that he routinely approved ASRC recommendations.
Hewitt specifically held that there need be no requirement that AS inmates submit evidence or statements to the committee. 459 U.S. at 477 n. 9, 103 S. Ct. 864. Hewitt also made clear that a decision to continue an inmate in AS could be based on the same facts and considerations that compelled the initial transfer to AS. Id. The fact that the ASRC repeated the same rationale each week, and did not enable Edmonson to submit information is not a basis for finding that the ASRC violated due process.
Hewitt did hold that the review process must be meaningful, and not "a pretext for indefinite confinement of an inmate." Id. There are no hard and fast rules for determining whether the ASRC review was meaningful. A recent case has defined criteria that can help in making this determination. Such criteria include whether the inmate had any involvement in, or received information concerning the review process, and whether there is any indication that the committee considered new information form any source. Giano v. Kelly, 869 F. Supp. 143, 149-151.
It is clear that the ASRC and Kelly could and should have better documented the extent of their review of Edmonson's status. The record before this court makes it difficult to ascertain what, if anything, the ASRC did in its reviews. However, Hewitt makes *254 clear that the periodic review process need not be formalized. Although it may have been flawed, that process appears to have been "meaningful" in the present case. Two factors support this conclusion.
First, although Edmonson claims that he received no formal notice of the ASCR meetings, Hermann states that she spoke regularly with him, and that he could have relayed any information or statement regarding his AS status to her. She also states that Edmonson could have sent a "tab" or note with such information. Edmonson did, in fact, send notes to Superintendent Kelly, arguing that he should be released from AS. Thus, even though he may not have known that the ASRC was the entity charged with reviewing his status, he correctly assumed that Superintendent Kelly was the person who could decide to release him from AS.
The other factor that suggests that the review was meaningful is Edmonson's eventual release from AS. He did not have to go to court to gain his release,[7] and there is no indication that the decision to release him was based on anything other than valid penological considerations. Perhaps his release would have occurred at an earlier date if the review process had been more substantive; but the eventual outcome suggests a meaningful review of his status.
This should not be read as an endorsement of the facility's review procedures. The Giano decision suggests steps that the ASRC might take, to insure meaningful review "without placing an undue burden" on the committee. Giano 869 F.Supp. at 151. There does not appear to be any reason why the committee failed to take such steps in the present case.
However, that is not the issue before this court. The only relevant question is whether defendants provided meaningful periodic review of Edmonson's AS status. This court finds that such review did take place, and that Edmonson's claim must therefore be dismissed.
IV. Defendants' Personal Involvement
In addition to the above grounds for dismissal of the complaint in toto, it must be dismissed as against a number of the defendants, because of their lack of personal involvement in any of the alleged deprivations of Edmonson's rights. To establish liability under 42 U.S.C. § 1983, a plaintiff must establish that the defendant was personally involved in the deprivation. Monell v. Dept. of Soc. Serv. Of the City of New York, 436 U.S. 658, 692, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
Courts have accepted a variety of theories, in support of the assertion that a defendant "caused" the constitutional violation. A defendant will be liable if he or she directly participated in the infraction. A supervisory official, can be held liable if he or she created a policy or custom under which unconstitutional practices occurred, allowed such a custom or practice to continue, or failed to remedy a known violation. Williams v. Smith, 781 F.2d 319, 323-324 (2d Cir.1986).
The amended complaint names thirteen defendants, who allegedly were involved in Edmonson's AS confinement. Lt. James prepared the initial AS notice. Lt. George interviewed Edmonson prior to his hearing. Capt. Henneberg conducted the hearing. The other defendants, except for Commissioner Coughlin, were involved in the periodic review of Edmonson's status. Coughlin was the recipient of Edmonson's appeal letter and a letter from his sister concerning AS.
The complaint must be dismissed for lack of personal involvement, as against Lt. James, Lt. George and Commissioner Coughlin. James avers that his only involvement was preparation of the initial recommendation that Edmonson be placed in AS. James Aff. ¶¶ 12-16, 23-24. Edmonson does not contest that assertion. Preparation of an AS recommendation is not a basis for a § 1983 claim. Freeman v. Rideout, 808 F.2d 949, 951 (1986). Freeman held that due process is satisfied so long as an inmate is afforded *255 an opportunity, at a hearing, to rebut false charges lodged against him. 808 F.2d at 953. The same logic applies to the AS recommendation. Edmonson had an opportunity, at his hearing, to contest the allegations in the recommendation. Since Lt. James' preparation of the recommendation was his only involvement in Edmonson's confinement, he must be dismissed as a defendant for lack of personal involvement.
Lt. George interviewed Edmonson four days after his transfer to AS. Amended Complaint ¶ 26. George asserts that the AS interview was his only involvement in the case. George Aff. ¶¶ 7, 11-18. Edmonson does not contest that assertion. He claims that defendants deprived him of liberty without due process, by confining him in AS and failing to conduct a timely interview, concerning the reason for that confinement. Amended Complaint ¶ 47.
Prior to the Sandin decision, the Second Circuit had held that due process required that an inmate be given notice of the reason for AS placement and an opportunity to present a statement to a responsible officer within a "reasonable time." Gittens v. LeFevre, 891 F.2d 38, 40-41 (2d Cir.1989); Russell v. Coughlin, 910 F.2d 75, 77 (2d Cir.1990). That holding was based on the premise that DOCS inmates had a liberty interest in remaining free from solitary confinement, regardless of the length of such confinement. Id. Since Sandin, however, it is clear that a liberty interest is not necessarily implicated by a brief confinement in SHU.
The Second Circuit has acknowledged that "Sandin may be read as calling into question the continued viability of" the Gittens and Russell decisions, Rodriguez v. Phillips, 66 F.3d 470, 480 (2d Cir.1995), and has held that SHU confinement for twelve days did not implicate a liberty interest. Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996). A four day delay in meeting with an inmate, to discuss the inmate's AS confinement, can not, therefore, be considered a violation of due process. The complaint must be dismissed as against Lt. George.
As Commissioner, Coughlin was responsible for overall management and operation of DOCS facilities. Amended Complaint ¶ 6. The complaint does not allege any facts suggesting that Coughlin was directly involved in Edmonson's AS confinement, and he denies such involvement. Coughlin Aff. ¶ 9. Coughlin also denies personal knowledge of events described in the complaint. Id. ¶ 10. He acknowledges that Edmonson's letter appealing the hearing determination was received by the his office, but states that the letter was forwarded to the Director of Special Housing Programs, who was designated to review and decide such appeals. Id. ¶¶ 11-14.
Coughlin also acknowledges receipt of a letter from Edmonson's sister inquiring about Edmonson's AS status in AS. Id. ¶ 22. The letter was forwarded to a member of Coughlin's staff, who subsequently drafted a reply for his signature. The responsive letter stated:
[a] member of my staff has been in contact with a lieutenant at Attica who reports [that] upon arrival your brother was processed into administrative segregation. This was done as a security precaution following an administrative segregation hearing. I have also been informed that he is receiving all privilege available to inmates in this status.
Id. ¶¶ 23-25; Exhibit I(D). Coughlin states that he had no other involvement in the case. Id. ¶ 14. In a case involving nearly identical facts, the Second Circuit held:
Sealey [the plaintiff] wrote two letters to Coughlin. Coughlin referred the first letter, Sealey's appeal from [his] administrative segregation hearing, to defendant Selsky for decision. Sealey's second letter was a status inquiry to which Coughlin responded by informing Sealy that Selsky had rendered a decision. Sealey's letters and Coughlin's response do not demonstrate the requisite personal involvement on Coughlin's part, and we affirm the dismissal of Sealey's claims against Coughlin.
Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997). Cf. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). Edmonson likewise has not demonstrated personal involvement by Coughlin in any deprivation of his rights, and *256 the complaint must be dismissed as against Coughlin.
Nine defendants had some involvement in the post-hearing review of Edmonson's status. Dep. Hall and Lt. Perkins were permanent members of the ASRC, and participated in most of its meetings. Hall Aff., ¶¶ 7-8, 16-18; Perkins Aff., ¶¶ 9-10, 16-17. Dep. Donnelly attended four ASRC meetings, Capt. Henneberg attended two meetings, Lt. Hollister attended four meetings, and Lt. Smith attended three meetings as substitutes when a permanent member was absent. Donnelly Aff. ¶ 11, Henneberg Aff. ¶ 39, Hollister Aff. ¶¶ 10-11, 16-17; Smith Aff. ¶¶ 9-10, 16-17. Correction Counselor Vera was the third permanent member of the ASRC between August and December, 1980. Counselor Herman then assumed Vera's responsibilities, and attended ASRC meetings from January to March, 1991. Vera Aff. ¶¶ 9-10, 16; Herrmann Aff. ¶ 10-11, 20-21. Superintendent Kelly was charged with reviewing ASRC recommendations, and making the final determination regarding inmates' AS status.
DOCS' regulations require the ASRC to recommend whether to continue an inmate in AS or release him. The recommendation is sent to the superintendent, who decides whether to release the inmate or continue his confinement. 7 N.Y.C.R.R. § 301.4(d). The regulations give the ASRC responsibility akin to that of an officer who prepares an initial AS recommendation. The ASRC is not authorized to release an inmate from AS, or to order his continued confinement. Its only authority is make a recommendation to the superintendent. ASRC members, therefore, did not have personal involvement in Edmonson's AS confinement, and the complaint must be dismissed, as against them.[8]
VIII. The State Law Claim
As his eighth claim, Edmonson asserts that Defendants violated the New York state law, by confining him in AS without insuring meaningful review of his status. Complaint ¶ 54, citing 7 N.Y.C.R.R. § 301.4. Edmonson's other claims are also partially based on state law. For each such claim, he asserts that defendants violated the Due Process Clauses of the Fourteenth Amendment to the United States Constitution, and Article I, § 6 of the Constitution of then State of New York. Complaint ¶¶ 47-53.
This court does not have subject matter jurisdiction over Edmonson's state law claims. The Eleventh Amendment to the United States Constitution provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commences or prosecuted against one of the United States by citizens of another State, or by citizens of any Foreign State.
The Eleventh Amendment has consistently been held to be "an affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art[icle] III" Pennhurst State School v. Halderman, 465 U.S. 89, 98, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), and thus to preclude federal jurisdiction over suits against an unconsenting state by its own citizens. Pennhurst, 465 U.S. at 98-99, 104 S. Ct. 900, citing Hans v. Louisiana, 134 U.S. 1, 15, 10 S. Ct. 504, 33 L. Ed. 842 (1890).
The Eleventh Amendment also bars claims in Federal court against state officials, based on state law. Allen v. Cuomo 100 F.3d 253, 260 (2d Cir.1996), citing Halderman, 465 U.S. at 117, 104 S. Ct. at 900. Oneida County N.Y. v. Oneida Indian Etc., 470 U.S. 226, 251, 105 S. Ct. 1245, 84 L. Ed. 2d 169 (1985). Such bar goes to the court's subject matter jurisdiction. Id.
Federal Rule of Civil Procedure 12(h)(3) provides: "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the *257 court shall dismiss the action." Edmonson's state law claims must therefore be dismissed.
Since defendants are entitled to summary judgment on the merits, with regard to each of Edmonson's claims, it is not necessary to address their assertion that they are entitled to qualified immunity.
CONCLUSION
For the above stated reasons, I hereby GRANT defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
ORDER
For the above stated reasons, it is hereby ordered that defendants' motion for summary judgment (Dkt.# 45) pursuant to Federal Rule of Civil Procedure 56 is hereby GRANTED and the complaint is dismissed in its entirety.
IT IS SO ORDERED.
NOTES
[1] The transcript of the AS hearing is included in Exhibit 6(C) to the Defendants' Summary Judgment Motion. References to pages in the transcript are indicated by "H" followed by a page number. The exhibits to defendants' motion are identified as "Exhibit" and the exhibit number.
[2] Although the regulations require that the ASRC review AS cases once a week for the first two months, and then once a month, 7 N.Y.C.R.R. § 301.4(d), Edmonson's case was apparently subject to weekly review during his confinement. Copies of ASRC memoranda are appended to Supt. Kelly's affidavit, Exhibit 10.
[3] In Sandin the unit was termed "Special Holding Unit" rather than a "Special Housing Unit." However, the court's description of that unit suggests its similarity to New York's SHU in function, physical layout and operation 515 U.S. at 475 and n. 2, 115 S. Ct. at 2296 and n. 2.
[4] Disciplinary SHU inmates must complete a thirty day adjustment period before they are permitted to make purchases from the commissary, or to have items such as playing cards, books or cigarettes in their cells. 7 N.Y.C.R.R. §§ 303.1 to 303.3. AS inmates are not subject to this adjustment period. 7 N.Y.C.R.R. § 301.4(c).
[5] Defendants' exhibits summarize disciplinary penalties, including SHU, for 1993, 1994 and 1995. Edmonson was in AS in for part of 1990 and 1991.
[6] DOCS' regulations give AS inmates the right to a hearing. 7 N.Y.C.R.R. § 301.4. Such regulations are state law, and do not define due process requirements. In two decisions rendered prior to Sandin, the Second Circuit suggested that a hearing might be required, as a matter of due process, when a prisoner is kept in AS for an extended period. Wright v. Smith 21 F.3d 496, 499 (2d Cir .1994); Green v. Bauvi, 46 F.3d 189, 194 (2d Cir.1995). The Second Circuit has acknowledged that its rationale for the holdings in Green and Wright was undercut by the Sandin decision, Sealey, 116 F.3d at 53, although those decisions have not been explicitly overruled. It is not necessary, however, to determine whether Green and Wright remain good law, since Edmonson was accorded a hearing to review his initial confinement in AS.
[7] One might legitimately question why Edmonson waited three years, following his release from AS, to commence this action, given his assertions regarding the severity of his deprivation.
[8] Superintendent Kelly alleges that he routinely approved ASRC recommendations, and never inquired as to the basis for the recommendations. This would suggest that the ASRC effectively made the decision to continue Edmonson's AS confinement. However, Kelly may not unilaterally relieve himself of his obligation under the regulation. Even if he, subjectively, felt that his role was merely to "rubber stamp" the ASRC recommendations, it was his duty to make the determination. Alternatively, Kelly may not, by fiat, impose an obligation on the ASRC to make the decision, when the regulation charges them only with making a recommendation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263689/ | 461 Pa. 301 (1975)
336 A.2d 296
COMMONWEALTH of Pennsylvania
v.
Lawrence CULLISON, Appellant (two cases).
Supreme Court of Pennsylvania.
Submitted April 23, 1974.
Decided April 17, 1975.
*302 Burton A. Rose, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Division, James Wilson, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION
MANDERINO, Justice.
Appellant, Larry Cullison, was found guilty by a jury of murder in the first degree and of robbery. Post-verdict motions were denied. An appeal from the judgment of sentence for murder was filed in this Court. An appeal from the judgment of sentence for robbery was filed in the Superior Court, which certified the matter to this Court.
Prior to trial, the appellant moved to suppress oral and written statements implicating him in the robbery *303 and fatal stabbing of a parking lot attendant. In his pre-trial motion, appellant contended that his oral and written statements should be suppressed because they were obtained in violation of Rule 118 (now 130) of the Pennsylvania Rules of Criminal Procedure. Appellant's motion to suppress was denied, and the statements were admitted into evidence during his trial. Appellant again raised the issue in post-verdict motions, and again relief was denied. We reverse and remand for a new trial.
The appellant was arrested at 1:25 a.m., on February 25, 1972. He was not arraigned until 12:45 a.m., February 26, 1972, 23 hours and 20 minutes after his arrest. Between 2:10 a.m., and 5:35 p.m., on the day of the arrest, appellant was interrogated during 7 different interrogation sessions lasting in duration from 35 minutes to 1 hour and 45 minutes. During these first 7 interrogation sessions, appellant made no inculpatory statements. During the 8th interrogation session, which began a little over 16 hours following the arrest, appellant made some inculpatory statements. During the 9th interrogation session, which began about 19 hours after the arrest, a written inculpatory statement was obtained. Under these circumstances, we must conclude that the 16 hour period prior to the first inculpatory statement constituted "an unnecessary delay" within the meaning of Rule 118 and the statements made thereafter were reasonably related to it. The evidence should have been suppressed at trial. Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975) (J-571 of 1974, filed March 18, 1975); Commonwealth v. Sanders, 458 Pa. 281, 327 A.2d 43 (1974); Commonwealth v. Johnson, 459 Pa. 171, 327 A.2d 618 (1974); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974); Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974); Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Commonwealth *304 v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972); see Geiger Appeal, 454 Pa. 51, 309 A.2d 559 (1973); Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973).
The prosecution does not dispute the appellant's contention that the appellant's oral and written statements were the product of an unnecessary delay between arrest and arraignment in violation of Rule 118. The prosecution, however, contends that Commonwealth v. Futch, supra, is not applicable to this case because Futch was decided after appellant's statements were obtained. We disagree. Commonwealth v. Futch was decided on April 20, 1972. Appellant filed his pretrial motion to suppress on June 28, 1972. In it he specifically raised the issue now before us. The issue was again raised in post-trial motions. Appellant therefore properly preserved the issue and is entitled to relief under Rule 118, which was in effect at the time of the appellant's arrest. Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973).
Judgment of sentence reversed and a new trial granted.
POMEROY, J., filed a dissenting opinion in which JONES, C.J., and EAGEN, J., joined.
POMEROY, Justice (dissenting).
The Court in its decision today continues its practice, to me unjustified, of reversing a conviction and ordering a new trial because evidence was introduced at trial which had been obtained through a violation by the police of a rule of court (Pa.R.Crim.P. 118), notwithstanding that the violation occurred prior to the time the penalty of exclusion of such evidence was announced by this Court as a measure of police deterrence. See Commonwealth *305 v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). To apply the exclusionary rule in such cases is to penalize law enforcement officials throughout the Commonwealth for a lack of clairvoyance on their part as to the future pronouncements of this Court made not on constitutional grounds but in the exercise of our supervisory powers. I therefore again dissent. See the dissenting opinion of this writer in Commonwealth v. Johnson, 459 Pa. 171, 327 A.2d 618, 620 (1974) and the opinions therein cited. See also Commonwealth v. Wilson, ___ Pa. ___, ___ n. 6, 329 A.2d 881, 884 n. 6 (1974) (Opinion in support of affirmance).
JONES, C.J., and EAGEN, J., join in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263691/ | 336 A.2d 553 (1975)
Kenneth L. GUILMETTE
v.
HUMBLE OIL & REFINING COMPANY.
No. 73-285-Appeal.
Supreme Court of Rhode Island.
April 21, 1975.
Abraham Goldstein, Providence, for petitioner-appellee.
Gunning, LaFazia, Gnys & Selya, Anthony G. Iannuccillo, Providence, for respondent-appellant.
OPINION
KELLEHER, Justice.
This is an employer's appeal from a decree of the Workmen's Compensation Commission affirming a decree of the trial commissioner which awarded the employee benefits for total incapacity. Hereinafter, we shall refer to the employer as "Humble Oil" and the employee as "Guilmette."
Guilmette worked for Humble Oil as the manager and mechanic at a service station located in Hopkinton, Rhode Island. On November 25, 1971, Guilmette slipped and fell on some slush that had accumulated on the floor in the office portion of the station. The physicians who have either treated or examined Guilmette are in complete agreement on one facet of this case. They all believe that the work-related slip and fall ruptured Guilmette's fourth lumbar disc. Humble Oil's physician recommends a laminectomy. Guilmette's physician would recommend surgery if scheduled diagnostic studies indicate "further evidence of nerve root pressure." Guilmette, however, refuses to give his consent to any operation.
Humble Oil's position throughout this litigation has been that Guilmette's intransigent negative attitude toward the suggested surgery warrants a suspension of any payments due him. Testimony relative to Guilmette's refusal was given by a neurosurgeon, an orthopedist, and Guilmette.
Guilmette's neurosurgeon testified that while he could not state with certainty that surgery would alleviate his patient's back pain, the chances of recovery would be 50 percent. He broke down the 50 percent figure. Guilmette, he said, had a 20 percent chance of returning to his normal working capacity and a 30 percent chance of returning to some form of light work.
The orthopedist who had examined Guilmette at the request of his employer is the surgeon-in-chief of the department of orthopedic surgery at the Rhode Island Hospital. He has performed over 4,000 laminectomies and stated that his experience *554 indicated that 85 percent of those who submit to a laminectomy obtain some type of improved status. Twelve or thirteen percent remain static and the remaining percentage become worse. The chief of orthopedic surgery explained to the trial commissioner that a patient's attitude is an important factor in attaining a satisfactory recovery. In his written report, the orthopedist stated that since Guilmette was extremely apprehensive, "the prognosis in his case would have to be guarded."
Guilmette appeared at the hearing. In his testimony, he recited how he had already taken such diagnostic tests as a myelogram[1] and an electromyogram. He had been hospitalized and spent some time at home in traction. Guilmette has been under almost continuous treatment, including physical therapy, since the day he fell. At times his pain increases so much that his sleep is disturbed. The "conservative" course of treatment prescribed by the neurosurgeon affords him some respite from his lower back pain. Guilmette explained his reluctance about surgery by saying he was "scared of surgery" and "* * * there is a chance of some kind of risk in surgery, which I don't want to take."
The test that has evolved for the determination of the validity of an injured employee's refusal to submit to a proposed course of treatment is the reasonableness of his refusal. Over 20 years ago, this court observed that an employee who is seeking or receiving workmen's compensation benefits cannot be compelled to submit to surgery which is dangerous to his life or health, involves extreme suffering, or is uncertain as to whether its ultimate result will be beneficial. Mancini v. Superior Court, 78 R.I. 373, 82 A.2d 390 (1951). An injured workman, the court declared, may not be relegated to the status of a second-class citizen in order to be guaranteed his receipt of the benefits set forth in the Workmen's Compensation Act. Rather, the disabled worker has the same right as any other individual to determine whether he will undergo surgery which his employer claims will safeguard his life or his health so long as he acts reasonably. It was also emphasized in Mancini that although from a medical point of view the advisability of the operation presents a question of fact, the issue of whether an employee can be forced to undergo such an operation is a question of law.
Humble Oil now argues that this court, being conscious of the tremendous improvements that have taken place in the surgical repair of ruptured discs since the days of Mancini, should now hold that as a matter of law Guilmette has acted in an arbitrary manner and suspend any payments due him until such time as he returns to the operating table and exposes his back and spinal chord to the surgeon's scalpel. We cannot agree. We like others, certainly stand in awe and marvel at the advances made in the medical sciences, as with the march of time the success ratio obtained through the use of various surgical techniques has continued to rise. However, the requirements of Mancini still must be satisfied. Even considering the advances that have been made in the area of laminectomies, it was Humble Oil's burden to persuade the commission as to the absence of any dangers in the contemplated operation.
The full commission, like the trial commissioner, adopted the statistical views of the orthopedic surgeon. Accordingly, the factual basis for this appeal is one which indicated that 85 percent of those who undergo the surgery are discharged as "better." Some will return to their old jobs and others will hopefully find light work. However, the remaining 15 percent are faced with two alternatives. There may be no improvement and they will continue to experience the pain that they had before surgery, or they will end up in worse shape than they were before hospitalization.
*555 Our Compensation Act was intended to impose upon the employer the burden of caring for the casualties occurring in his employment. Geigy Chem. Corp. v. Zuckerman, 106 R.I. 534, 261 A.2d 844 (1970); Rosa v. George A. Fuller Co., 74 R.I. 215, 60 A.2d 150 (1948). The statistics presented by the orthopedist are truly significant and impressive.
However, there is something more in determining reasonableness than merely relying on a battery of statistics which show an improvement factor of 85 percent. While Humble Oil's eyes are fixed on the 85 percent figure, it is Guilmette who is being asked to face a procedure, which all concerned concede, is major surgery. Recently, in discussing the doctrine of informed consent and a physician's duty to disclose the known material risks inherent in a proposed course of treatment, this court remarked that a "small chance of * * * serious disablement" or a "potential disability" which greatly outweighs the "potential benefit" might be areas calling for a discussion between the physician and his patient. Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972).[2] So, too, we think that Guilmette in deciding whether to undergo the suggested surgery is entitled to dwell on the 15 percent figure. It indicates that even if he submits to a procedure which may be followed by some extreme pain, he may be discharged as unimproved or perhaps even in worse shape than when he entered the hospital. Here, Humble Oil's own expert has produced statistics which indicate that there is indeed a risk to one who agrees to undergo a laminectomy. Legislation such as the Workmen's Compensation Act is designed to protect employees who have all types of beliefs and fears and if an employee's rejection of surgery is within the bounds of reason, his choice should be respected. Rockford Clutch Div. v. Industrial Comm'n, 34 Ill.2d 240, 215 N.E.2d 209 (1966); 1 Larson, Workmen's Compensation Law § 13.22 (1972). If at this point in time Guilmette wishes to live with his pain, we cannot on the evidence presented fault his choice.
The employer's appeal is denied and dismissed.
NOTES
[1] This court has ruled that a myelogram is not an "examination" to which an employee must submit under our compensation statute. Cranston Print Works v. Pascatore, 72 R.I. 471, 53 A.2d 452 (1947).
[2] In Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972), we held that ordinarily an adult patient of sound mind has an absolute right to decide whether he will submit to any proposed course of treatment. In compensation cases this absolute right is diminished by an employee's obligation to extend the hand of reasonable cooperation to his employer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263694/ | 336 A.2d 847 (1975)
Arnold A. FONTAINE, p.p.a.
v.
George DEVONIS et al.
No. 73-317-Appeal.
Supreme Court of Rhode Island.
May 2, 1975.
*850 Gunning, LaFazia, Gnys & Selya, Edward P. Sowa, Jr., for plaintiffs.
Joseph E. Marran, Jr., for defendants.
OPINION
PAOLINO, Justice.
The plaintiffs brought this action of trespass on the case for negligence to recover for personal injuries suffered by Arnold A. Fontaine, a minor, and consequential damages sustained by his father.[1] A jury in Superior Court returned a verdict for the plaintiff child, Arnold A. Fontaine, in the amount of $1,500 and for the plaintiff child's mother, Elizabeth Fontaine, in the amount of $5,500. The trial justice denied the defendants' motions for a directed verdict made at the close of the plaintiffs' evidence and at the close of all the evidence, as well as denied the defendants' motion for a new trial. He also granted a new trial on the question of damages unless the defendants consented to an additur of $10,000. The defendants appealed.
The pertinent facts are as follows. On the afternoon of August 1, 1966, defendant Eleanor Devonis was operating an automobile owned by defendant George Devonis in a westerly direction along Lauder Avenue, Pawtucket, Rhode Island. In crossing Lauder Avenue, plaintiff, a 3½-year-old child, came in contact with the automobile operated by defendant driver. The plaintiff child sustained injuries which required considerable hospitalization and medical attention. There were no impartial witnesses to the occurrence.
I
The Motions for a Directed Verdict
The defendants first argue that the trial justice was in error in denying defendants' motions for a directed verdict. In Pimental v. D'Allaire, R.I., 330 A.2d 62 (1975), this court reiterated the rule governing the denial of a directed verdict. Therein we stated that the trial justice must view all the evidence in a light most *851 favorable to the adverse party and is obliged to give such party the benefit of all reasonable and legitimate inferences which may be properly drawn therefrom without sifting or weighing the evidence or exercising the justice's independent judgment as to the credibility of witnesses; and, if after taking such a view, he finds that there exists issues upon which reasonable persons might draw conflicting conclusions, he should deny the motion and the issues should be left to the jury to determine. When the Supreme Court reviews the trial justice's decision on a motion for a directed verdict, the court looks at the evidence in the same manner and fashion as the trial justice and is bound by the same rules which govern him.
In reviewing the record by this standard, we are convinced that the trial justice followed these strictures carefully. The first question to be decided by the trial justice was whether defendant driver was negligent. This issue was a factual question for the jury. There were some uncontradicted facts from which reasonable persons could come to different conclusions as to how the accident happened. In addition there were conflicting versions of the accident which created a question of fact as to whether defendant driver saw the child early enough to avoid the accident or failed to see the child when she should have.
The trial justice also had to pass on the question of whether plaintiff child was guilty of negligence as a matter of law.[2] The plaintiff child was 3½ years old at the time of the accident. He was hit in the middle of a street 24 feet wide, and there was conflicting testimony as to how and when he arrived at that point. The trial justice concluded that the court could not rule that a 3½-year-old child running across a street is guilty of negligence as a matter of law in these circumstances. In Rosenthal v. United Electric Rys., 79 R.I. 11, 82 A.2d 830, 83 A.2d 918 (1951), this court considered the question of contributory negligence related to the conduct of a 5½-year-old child. We stated therein that the standard of ordinary care as applied to children of such tender years is only that degree of care which children of the same age, education, and experience would be expected to exercise in similar circumstances, and held that whether the minor plaintiff exercised due care conformable to the standard in such cases was a question of fact for the jury. See also Murnigham v. Dark, 107 R.I. 457, 268 A.2d 274 (1970), and Reek v. Lutz, 90 R.I. 340, 158 A.2d 145 (1960). Such a factual issue was presented here. Thus, the trial justice had a sufficient basis in both fact and law to deny defendants' motion for a directed verdict and to submit the case to the jury on the question of plaintiff child's contributory negligence.
The record also supports the trial justice's ruling denying defendants' motion for a directed verdict at the close of all the evidence. One of the witnesses called by defendants was defendant operator's mother, who was a passenger in the car at the time of the accident. She testified that she saw the child as he came out of a yard, crossed the 5-foot-wide sidewalk, and then entered the street. The defendant operator then gave another version as to what she saw or failed to see. Thus it is clear that the trial justice was justified in denying defendants' motion at that juncture, since the foregoing evidence raised questions of fact to be determined by the jury.
II
The Evidentiary Rulings
The defendants next argue that the trial justice was in error in excluding certain evidence offered by defendants. The first error in this regard relates to a purported *852 conversation between defendant driver and plaintiff child's father, Arnold Fontaine. Closely akin to this alleged error is defendants' contention that the trial justice erred in not allowing defendants to produce the father after oral argument had commenced. The defendants made an offer of proof that the proffered testimony consisted of an allegation that Mr. Fontaine told defendant operator that plaintiff child, in explaining how the accident happened, said that he "just ran out into the street and got hit by the car," and thus this testimony would impeach the credibility of plaintiff Elizabeth Fontaine. The record indicates that there is no denial by plaintiffs that the child had run out into the street. In fact, there is considerable testimony that he did. Hence, the jury had this factual background before it, and therefore it is difficult to see how this exclusion of evidence could have influenced the verdict or otherwise adversely prejudiced defendants.
Furthermore, we do not believe that the excluded testimony was admissible as an admission. The child was merely engaging in a simple factual recitation. A 3½-year-old child could hardly be expected to elucidate upon the proper nuances to indicate his freedom from negligence. For the above reasons, therefore, we hold that there was no reversible error when the trial justice excluded the proffered statement and when he refused to allow defendants to produce the father after defendants' oral argument had commenced.
Another evidentiary error alleged by defendants relates to the ruling of the trial justice precluding the introduction of a police report, or a diagram therein, as a full exhibit. Even if we assume that the trial justice should have admitted the exhibit under the business records exception to the hearsay rule, we do not believe that its exclusion was reversible error since there was repeated testimony throughout the trial which reiterated the route which was followed by plaintiff child just prior to the accident and which was similar to the route sketched in the diagram prepared subsequent to the accident.
III
The Charge to the Jury
The defendants next allege that the trial justice was in error in his charge to the jury. The defendants requested that the following charge pursuant to G.L. 1956 (1968 Reenactment) § 31-18-5 be given:
"Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway."
The trial justice refused to give this charge on the ground that the statute was inapplicable to a child of such tender years. We think that both reason and authority support this position. The law recognizes the reality that children act upon childish instincts and impulses by the establishment of the rule that, on the assumption of some capacity for negligence, ordinary care as applied to children is only that degree of care which children of the same age, education, and experience would be expected to exercise in similar circumstances. While ordinarily a trial justice should draw the attention of the jury to existing statutes within the above context, he need not do so where, as a matter of law, a child cannot be held to the standard articulated in the statute. Clearly, as in this case, a prudent child of 3 ½ years old cannot be expected to be cognizant of the provisions of § 31-18-5 and to control and conform his conduct accordingly.
In holding that a child is not to be subjected to a charge which in the case of an adult would be given, we do not say that he is free from a general duty to obey statutes. We do say that the consequences which follow violation of statutes in the case of adults do not necessarily apply *853 in the case of infants. The age, experience, and intelligence of the child are to be considered in determining whether he was guilty of contributory negligence even where he violated such a statute. If evidence demonstrates that a minor, in view of the above, could be held to the standard of reasonable care applicable to adults, the instruction should be given. Simmons v. Holm, 229 Ore. 373, 367 P.2d 368 (1961).
The defendants further argue that the trial justice, in pointing out certain facts to the jury, thereby indicated that he wanted the jury to bring back a verdict for plaintiffs. In reviewing the charge, we do not believe that this contention is supported by the factual recitation therein. Nor do we find any merit in defendants' assertion that the trial justice's charge relative to damages influenced the jury's consideration of the amount of the verdict. His reference to "[a]ny permanency in the injury, such as the plate in his head, or part of his missing skull or something of that nature" was illustrative, not determinative.
The defendants contend that the trial justice's charge of the last clear chance doctrine was prejudicial to defendants and was reversible error. We do not agree with this contention. As noted above, a review of the transcript indicates that there were at least two versions of the occurrence of the accident given by defendant operator. There was conflicting evidence as to whether or not she saw or could have seen the child on the sidewalk. Since the accident occurred in the middle of the street, and plaintiff child was hit by the left front grille of the automobile, after running across a 5-foot-wide sidewalk, the doctrine of last clear chance might be applied, presuming, of course, that the jury found the plaintiff child guilty of contributory negligence. As we reiterated in Piacitelli v. Saldin, 94 R.I. 367, 373-74, 180 A.2d 821, 825 (1962):
"`It is clear that in those cases where the occasion has arisen for a discussion of the limits of the doctrine the court has held it applicable only where the evidence disclosed that the plaintiff had negligently placed himself or his property in a position of peril; that defendant thereafter had become aware or in the exercise of due care ought to have become aware of plaintiff's peril and his lack of comprehension of it or apparent inability to extricate himself from it; that the defendant if he had been in the exercise of due care had a reasonable opportunity thereafter to avoid injuring the plaintiff; and that defendant failed to exercise such care.'"
Consequently, if defendant operator, as indicated in conflicting testimony, noticed a small boy running to her right, coming out of a yard into the road; if at that time she slowed down and the little boy hestitated in the middle of the road, turned around and faced toward the house at 78 Lauder Avenue; if the boy suddenly began to run again toward her car and she hit the brakes and hit the boy with the left front portion of her car, then the last clear chance doctrine could app'y and the trial justice was warranted in so instructing the jury.
IV
Denial of Defendants' Motion for a New Trial
The defendants further argue that the trial justice was in error in denying defendants' motion for a new trial and in granting plaintiff's motion for an additur or a new trial on damages. We recently reiterated the rules governing the trial justice upon a motion for a new trial generally, and a motion for a new trial limited to damages or an additur in Pimental v. D'Allaire, supra, and Grenier v. Royal Cab, Inc., R.I., 327 A.2d 272 (1974). Ae review of the trial justice's decision indicates that he followed the above rules in denying defendants' motion for a new trial. When reviewing the evidence, he alluded to the two versions given by defendant operator *854 as to how the accident occurred. He noted that this variation might have a twofold effect. First, he felt that the jury might be justified in drawing an inference that defendant operator might not have been paying attention to the manner in which she operated the vehicle, particularly since it was her mother, Mrs. Gilmartin, who first saw the child and yelled out. Secondly, he felt that the two separate versions could have affected defendant operator's credibility.
From his comments it is clear that the trial justice exercised his independent judgment in light of his charge to the jury, and passed upon the weight and credibility of the witness. After doing so, he found that the evidence was so evenly balanced that reasonable persons could arrive at different results in the consideration of the case; hence he was obliged to deny the motion and to affirm the verdict. Waltz v. Aycrigg, 103 R.I. 109, 235 A.2d 338 (1967).
On appeal from an adverse ruling on a motion for a new trial where the trial justice properly performs his function, the movant must persuade this court that the trial justice in deciding the motion was clearly wrong or overlooked or misconceived material evidence on a controlling issue in the case. Pimental v. D'Allaire, supra. The prime contentions made by defendants reduce themselves to inferences contrary to those made by the trial justice. The answer to these contentions is that the trial justice may in fact draw inferences contrary to a party as long as they are rooted in a reasonable view of the weight of the evidence and credibility as was done here.
The defendants claim that the trial justice did not delimit what evidence he rejected. As we reiterated in Pimental, the failure of the trial justice to refer to evidence contradictory to that upon which he relied does not constitute misconceiving or overlooking material evidence, provided that he refers to those portions of the evidence on which he did rely and indicates contrary evidence which he rejects. An attentive reading of his decision satisfies us that he fairly indicated the evidence on which he relied and the evidence which he rejected.
V
The Granting of Plaintiffs' Motion for an Additur
Finally, defendants argue that the trial justice erred in granting a new trial on the question of damages unless defendants consented to an additur. They argue that the evidence does not warrant an additur of $10,000. The duty of a trial justice in passing on a motion for a new trial on the ground of inadequacy of damages is essentially the same as his duty in passing on a motion for a new trial generally. In the exercise of his independent judgment, he must weigh all the material evidence on the damages and pass on the credibility of the witnesses. After the evidence-sifting process is completed, and liability established, a new trial on the question of damages should be granted if there is a demonstrable disparity between the award and the damages sustained such that the verdict is not truly responsive to the merits of the controversy and fails to do substantial justice between the parties. Grenier v. Royal Cab, Inc., supra.
We have further said that in exercising that judgment the trial justice, while he need not exhaustively analyze the evidence or state all his conclusions on its weight or the witnesses' credibility, should at least refer sufficiently to what prompts his action to enable a reviewing court to determine whether his inference was based upon a misconception or oversight of material evidence or was otherwise clearly wrong. Wood v. Paolino, 112 R.I. 753, 755-56, 315 A.2d 744, 745 (1974). In this case, the trial justice did not meet these requirements. Hence, we examine the record *855 to see if it discloses an evidentiary basis for the amount of the additur.
In our view, it is clear in the case at bar that the evidence supports the trial justice's finding that such a demonstrable disparity exists between the jury's award and the damages sustained by plaintiffs. There was uncontradicted medical testimony that the child was deeply comatose while in the accident room and nonresponsive to any stimuli. He also stopped breathing for a period of time. There was expert testimony that plaintiff child suffered multiple fractures, running the length of the left side up and down, and a sideward fracture of the skull with two fragment depressions from the normal surface of the skull. There was further testimony that one piece of bone approximately the size of one-fourth of an orange was removed, as well as a second fragment about one-half the size of a 5-cent piece.
Testimony further indicated that paralysis of the entire right facial nerve that controls the eye, face, and lip appeared after the operation. The testimony also showed that while the paralysis had moderated by the time of trial, it was still in evidence. This paralysis included a partial impairment of speech. Furthermore, plaintiff child was required to wear headgear like a football helmet until he had a second operation some months thereafter. During this subsequent operation he had a tantalum plate with four silver screws put into his skull. Additionally, plaintiff child was rehospitalized for severe abdominal pains directly related to the accident.
Other uncontradicted testimony showed that plaintiff child would be and is an excellent candidate for future epilepsy because of the accident. There was further testimony that the child would not be able to engage in normal sport activities and that he would continue to exhibit behavioral problems in the future.
Thus we find that the trial justice properly granted the plaintiffs a new trial on the question of damages unless the defendants consented to the additur. Since the defendants have not satisfied us that the trial justice either overlooked or misconceived material evidence, or was otherwise clearly wrong, we affirm.
The defendants' objections are overruled, the judgment appealed from is affirmed, and the case is remitted to the Superior Court for a new trial on damages unless the defendants shall within the period to be fixed by that court consent to the additur heretofore awarded by the trial justice.
NOTES
[1] Elizabeth Fontaine was substituted for Arnold Fontaine, father of the injured child, as a plaintiff in this case after their divorce.
[2] General Laws 1956 (1969 Reenactment) § 9-20-4 on comparative negligence was not in effect at the time of this action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263697/ | 461 Pa. 309 (1975)
336 A.2d 300
COMMONWEALTH of Pennsylvania
v.
Robert BRYANT, Appellant.
Supreme Court of Pennsylvania.
Submitted April 25, 1974.
Decided April 17, 1975.
*310 *311 D.M. Masciantonio, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
MANDERINO, Justice.
Appellant, Robert Bryant, was convicted on June 2, 1972, of murder in the first degree, aggravated robbery and conspiracy. He received a sentence of life imprisonment for the murder conviction; a concurrent sentence of five to ten years imprisonment for the aggravated robbery conviction; and a suspended sentence for the conspiracy conviction. Post-verdict motions were denied and this appeal followed. See, Act of July 31, 1970, P.L. 673, No. 233, art. II, §§ 202 and 204 (17 P.S. §§ 211.202 and 211.204).
Appellant contends that the prosecution's evidence was insufficient to convict appellant of murder in the first degree because it was not established that the appellant participated in the felony of robbery. We disagree.
The prosecution's evidence established that on January 12, 1971, at about 10:00 P.M., a 64 year old man was beaten and robbed. Appellant does not deny participating in the incident, nor does he deny that he was involved in the beating of the victim. He contends, however, that the evidence did not establish that he was involved in any robbery of the victim. According to the appellant's version of the incident, he and his brother approached the victim, who was walking down the street, for the sole purpose of asking for a nickel. When the request was made, according to the appellant, the victim took a pair of pliers from his pocket and struck the appellant on the head. This attack by the victim, claims *312 appellant, was the only reason he participated in the beating of the victim, who was hit on the head with the pliers, knocked to the ground, and kicked in the face.
At issue is whether the prosecution's evidence was sufficient to establish that the beating from which the victim died occurred in the perpetration of the felony of robbery. See, Act of 1939, June 24, P.L. 872, § 701; as amended 18 P.S. § 4701. In view of the jury's verdict, the evidence and all reasonable inferences therefrom upon which the jury could have properly based its verdict must be considered in the light most favorable to the prosecution. Commonwealth v. Williams, 458 Pa. 319, 326 A.2d 300 (1974). The prosecution's evidence established that prior to the incident, the appellant said to a friend that he, the appellant, "was going to get some money." At the time of the remark, the victim was walking along the street carrying a brown paper bag with two bottles of beer which he had purchased at a nearby tavern. The evidence established that during the incident, appellant's brother took the brown paper bag containing the beer from the victim. There was also evidence that while the incident was still in progress, and appellant was wrestling with the victim, one of the appellant's friends, who appeared on the scene after the incident had begun, picked up the victim's wallet, which had slipped from the victim's pocket. When he did so, appellant called and asked if there was any money in the wallet. After the incident, appellant and others at appellant's home drank the beer taken from the victim.
Appellant points out that the beer was taken from the victim by his brother and the wallet was picked up by one of his friends. The lack of evidence that appellant personally took any property from the victim does not warrant a conclusion that he did not participate in a robbery. The evidence is sufficient to establish that appellant was a participant in the incident from its inception until its conclusion. One who participates in a *313 crime is legally responsible not only for his personal acts, but also for the acts of others committed in furtherance of the conspiracy to commit the crime. Commonwealth v. Joseph, 451 Pa. 440, 304 A.2d 163 (1973); Commonwealth v. Williams, 443 Pa. 85, 277 A.2d 781 (1971). We conclude that the prosecution's evidence, and the reasonable inferences to be drawn therefrom, viewed in the light most favorable to the prosecution, were sufficient to establish beyond a reasonable doubt that the appellant participated in a robbery which resulted in the victim's death.
The appellant has also raised two other issues. He contends that (1) oral and written confessions were the product of an illegal arrest and should not have been admitted into evidence, and (2) his trial was held in violation of constitutional provisions against double jeopardy because a previous trial had resulted in a hung jury. Neither of these issues, however, were raised by the appellant in post-verdict motions. The trial court's opinion points out that appellant's "sole assertion in post-verdict motions was the sufficiency of the evidence." Under these circumstances, these issues are not cognizable in this Court. Commonwealth v. Clair, ___ Pa. ___, 326 A.2d 272 (1974); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972).
Judgment of sentence affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263701/ | 67 N.J. 139 (1975)
336 A.2d 483
EMPIRE MUTUAL INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
v.
EUGENE MELBURG, VALENTINA MELBURG, AN INFANT BY HER GUARDIAN AD LITEM, LUBOV MELBURG, LUBOV MELBURG, INDIVIDUALLY AND MARY G. SCHAAFSMA, DEFENDANTS-APPELLANTS.
The Supreme Court of New Jersey.
Argued February 19, 1975.
Decided April 18, 1975.
*141 Mr. Michael J. Cernigliaro argued the cause for defendant-appellant Mary G. Schaafsma (Messrs. Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys).
Mr. James F. Hammill argued the cause for plaintiff-respondent (Mr. Thomas F. Daly, of counsel; Messrs. McCarter & English, attorneys).
PER CURIAM.
In this declaratory judgment action involving the question of automobile liability insurance coverage under a policy issued by Empire Mutual Insurance Company, we conclude that the trial judge was correct in holding that New York law applied to the construction of the policy, and that under New York law the policy, as written, did not extend coverage to the claim for personal injuries asserted by Lubov Melburg against her husband Eugene Melburg.[1]
*142 However, we also conclude that the grant of Empire Mutual Insurance Company's motion for summary judgment which was affirmed by the Appellate Division was premature, as a potential factual issue existed as to whether or not Empire Mutual by its course of conduct was estopped from asserting non-coverage or had waived its right to do so. See Merchants Ind. Corp. v. Eggleston, 37 N.J. 114 (1962). This issue was raised by Mary G. Schaafsma in connection with her cross-claim for contribution from Eugene Melburg in Lubov Melburg's action for damages.
At the oral argument of the motion for summary judgment herein, counsel for Schaafsma had stated that he had not yet had the opportunity to conduct discovery proceedings and develop the facts on which he intended to base the claim of waiver or estoppel. He argued that the motion for summary judgment was premature.[2]
The trial judge, in his letter decision granting Empire Mutual's motion for summary judgment, confined his ruling to the question of the applicability of New York law and made no mention of the question of estoppel and waiver. As heretofore noted, we conclude that the grant of the motion was premature and that Schaafsma should have been afforded the opportunity, through discovery proceedings, to develop the facts on which she intended to base the asserted claim of waiver and estoppel. We therefore reverse the grant of summary judgment insofar as this issue is concerned.
The question is presented as to whether Lubov Melburg, the plaintiff in the suit for personal injuries, and Eugene Melburg, the co-defendant in the same suit, can take advantage of this ruling. They did not raise the issue of waiver and estoppel in the declaratory judgment action,[3]*143 their petition for certification was denied and they did not participate in the Schaafsma appeal to this Court (we having granted certification on Schaafsma's petition).
We conclude that the Melburgs should be given the opportunity to assert waiver and estoppel against Empire Mutual on the remand. While Schaafsma was the only party who raised this issue in connection with her cross-claim for contribution against Eugene Melburg, her right is derivative in nature and is so interwoven with and dependent on the Melburgs' rights that they cannot be separated. To afford Schaafsma the relief to which she is entitled we must also allow the Melburgs the opportunity to assert waiver and estoppel against Empire Mutual. See Glover v. Tide Equipment Co., 506 S.W.2d 330, 333 (Ct. of Civ. App. of Texas 1974); MFA Cooperative Association of Ash Grove v. Elliot, 479 S.W.2d 129, 134 (Mo. Ct. of App. 1972).
We wish to make it perfectly clear that we are not deciding that a triable factual issue exists as to the question of waiver and estoppel. All that we hold is that Mary G. Schaafsma and the Melburgs should have the opportunity to develop the facts and then present the issue to the trial court for decision.
Reversed and remanded.
For reversal and remandment Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN and PASHMAN and Judge CONFORD 5.
For affirmance None.
NOTES
[1] The present declaratory judgment action stems from a two-car accident in Ocean County, New Jersey. Lubov Melburg was a passenger in one of the vehicles which was being operated by her husband Eugene Melburg. The Melburgs are residents of New York and their vehicle was insured under a liability policy issued in New York by Empire Mutual, a New York based company. The other vehicle was being operated by Mary G. Schaafsma, a New Jersey resident. Lubov Melburg filed a personal injury suit in the New Jersey Superior Court joining Mary G. Schaafsma and her husband Eugene Melburg as defendants. A cross-claim for contribution was filed by Mary G. Schaafsma against Eugene Melburg. Empire Mutual initially undertook to defend Eugene Melburg on the claim against him made by his wife. However, it ultimately disclaimed, asserting that the policy did not extend coverage to an interspousal claim. The instant suit was then filed by Empire Mutual seeking a declaratory judgment that its policy, as written, did not extend coverage to Lubov Melburg's claim against her husband. The suit joined the Melburg's and Mary G. Schaafsma as defendants.
[2] Empire Mutual's motion for summary judgment in the declaratory judgment suit was made before answers had been filed and before any discovery had been had by defendants.
[3] The Melburgs' basic position was that the Court as a matter of public policy should decline to apply New York law and instead construe policy coverage in accordance with New Jersey law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263707/ | 133 N.J. Super. 375 (1975)
336 A.2d 750
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
JERSEY CENTRAL POWER & LIGHT COMPANY, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued October 30, 1974.
Decided March 21, 1975.
*379 Before Judges MATTHEWS, FRITZ and BOTTER.
*380 Mr. Robert O. Brokaw argued the cause for appellant Jersey Central Power & Light Company.
Mr. Lewis Goldshore, Deputy Attorney General, argued the cause for respondent State of New Jersey (Mr. Robert J. Del Tufo, Acting Attorney General, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
The opinion of the court was delivered by MATTHEWS, P.J.A.D.
Defendant was charged by plaintiff Department of Environmental Protection (DEP) with violations of N.J.S.A. 23:5-28 and 58:10-23.6 in the operation of its nuclear generating plant located at Oyster Creek in Lacey and Ocean Townships, Ocean County. The first two counts of the complaint charged the statutory violations and sought penalties, and the third count sought compensatory damages for the harm done to public resources. At the conclusion of a six-day nonjury trial, the trial judge dismissed the second count charging a violation of N.J.S.A. 58:10-23.6, and thereafter, in a reported opinion, found that defendant violated N.J.S.A. 23:5-28 and imposed a penalty of $6,000. He also awarded $935 to the State as damages for fish killed. State v. Jersey Central Power & Light Co., 125 N.J. Super. 97 (Law Div. 1973).
Defendant's atomic power generating plant is situated on a tract of land bounded by the south branch of the Forked River on the north, Oyster Creek on the south and U.S. Highway Route 9 on the east. During construction of the plant an artificial canal was dug which connected the river and the creek which previously had not been connected. A dike was constructed across the canal which divided it into an intake portion and a discharge portion. The dike prevents the flow of water between the river and creek unless it is pumped. Seven pumps are located in the nuclear generating station, four circulating pumps each with a capacity of 115,000 gallons a minute and three dilution pumps each having 260,000 gallons a minute capacity.
*381 When the plant is in operation, cooling water is pumped by the four circulating pumps from Forked River into an intake canal, through the condensers under the generators where it is heated about 48 degrees in the process of condensing steam and is then discharged into the discharge canal and thence into Oyster Creek. The water discharged into the creek is approximately 25 degrees Fahrenheit warmer than the water in the river. The warm water discharge raised the temperature of the creek waters which had the effect of attracting fish. In addition, the three dilution pumps pump water directly from the intake canal into the discharge canal. The discharge of the combined operation of the pumps serves to satisfy the minimum requirements established by the Atomic Energy Commission for the dilution of such radioactive liquid effluents which may be discharged in operation of the generator.
Defendant has been issued a provisional operating license by the Atomic Energy Commission under which it currently operates the Oyster Creek facility. That license incorporates various technical specifications which govern the method of operation. Among those is the requirement to shut down the nuclear reactor when unidentified leakage of reactor coolant into the primary containment reaches a rate of five gallons per minute.
On January 28, 1972 it was determined that unidentified leakage of reactor water inside the primary containment was approaching the allowable maximum under the specifications. Consequently the plant was shut down on that date. On the shutdown date and for three days thereafter three circulating pumps and one dilution pump continued in operation. Since the plant was no longer operating, the discharge of heated water stopped and only the colder river water was pumped into the creek. As a result the temperature of the creek fell rapidly approximately 13 degrees in 24 hours.
*382 Thereafter, upwards of 500,000 menhaden, a species of fish important for commercial uses, were found dead in the creek. Examination of the water in the creek and samples of the dead fish by state inspectors disclosed no matter harmful or injurious. Death of the menhaden was therefore attributed to the thermal shock caused by the sudden drop in water temperature.
I
The first issue raised is whether N.J.S.A. 23:5-28 applies to the discharge of uncontaminated, unheated water into tidal waters of the State. It is conceded that Oyster Creek is subject to tidal flow[1]. The statute, in pertinent part, reads:
No person shall put or place into, turn into, drain into, or place where it can run, flow, wash or be emptied into, or where it can find its way into any of the fresh or tidal waters within the jurisdiction of this State any petroleum products, debris, hazardous, deleterious, destructive or poisonous substances of any kind; * * *. In case of pollution of said waters by any substances injurious to fish, birds or mammals, it shall not be necessary to show that the substances have actually caused the death of any of these organisms. * * *
It also includes a penalty not to exceed $6,000 for its violation.
Defendant argues that if the Legislature intended this statute to prohibit the discharge of heated or cold water into the State's waters, it would have provided by "apt legislative language" that thermal pollution constituted a violation of the statute. It also contends that since the Legislature *383 referred to thermal pollution in N.J.S.A. 13:1D-9, the absence of such a reference in the statute here under consideration unquestionably indicates that the Legislature did not intend to include thermal pollution within the prohibitions of N.J.S.A. 23:5-28.
We are unimpressed with this argument. First, we are satisfied that the plain meaning of the statute embraces the conduct which was prosecuted here. The Legislature clearly intended to prohibit the discharge of any substance into the waters of this State which would be hazardous, deleterious, destructive or poisonous to any form of life. The facts adduced at the trial below disclose that the introduction of the cold water into the artificially heated environment of Oyster Creek in which the menhaden were living caused their destruction. Obviously, the introduction of the cold water was deleterious to the health of the menhaden they died. Things cannot be more deleterious than that. Second, this clear import of the statute is supported by its legislative history. As the trial judge noted in his opinion, one of the senators speaking on behalf of the sponsor of the legislation while it was pending in the Senate noted that the intent in enacting the bill was not to try to define, as the law then did, any of the specific substances that would cause contamination. "Rather the object of the legislation is to say that anyone who permits any injurious substances which have effects that are detrimental to the inhabitants of the waterways shall be responsible for doing it." See 125 N.J. Super. at 100-101.
Defendants argument would have us ignore the words employed by the Legislature in the statute. The words "hazardous", "deleterious," "destructive" and "poisonous" all have different shadings of meaning. Water, for example is not hazardous, deleterious, destructive or poisonous to fish. Water which unduly raises or lowers the temperature of water then constituting the environment of fish can be hazardous, and may become deleterious and destructive to the fish, although *384 never poisonous to them. What the Legislature has sought to do in employing the general language that it has, is to prohibit the discharge of any substance, the effect of which will endanger or destroy the eco-system, its inhabitants and human life.
Defendant also argues that the Legislature intended by the passage of this act to prohibit the discharge of substances whose chemical composition is such as to make them inherently hazardous, deleterious, destructive or poisonous. Only a tortured reading of the statutory language can lead to such a result. Perhaps the best answer to this argument is a reference to the predecessor statutes covering this subject. N.J.S.A. 23:5-28 had as its source L. 1937, c. 64, § 2. That section prohibited the discharge of any "dyestuff, coal tar, sawdust, tanbark, lime, refuse from gas houses, or other deleterious or poisonous substances" into any of the waters of the State in quantities destructive of life or disturbing the habits of fish inhabiting those waters. A 1950 amendment to the statute made no change pertinent here. The statute was again amended by the L. 1968, c. 329. That amendment deleted the specification of the particular prohibited substances as well as the words "in quantities destructive of life or disturbing the habits of fish." The statute then read:
No person shall put or place into, turn into, drain into, or place where it can run, flow, wash or be emptied into, or where it can find its way into any of the fresh or tidal waters within the jurisdiction of this State any * * * deleterious, destructive or poisonous substances of any kind; * * *.
The statute remained in this form until it was again amended to its present form by L. 1971, c. 173. The last amendment inserted specific references to petroleum products and debris, and added the word "hazardous" as an additional description of the character of substances prohibited.
In our view, the legislative history just set forth demonstrates a legislative intent to prohibit any discharge *385 into the waters of this State by anyone if such discharge will be hazardous, deleterious, destructive or poisonous to life. The significance of the specific reference to petroleum products and debris is fairly apparent. Petroleum products are not generally miscible with water and usually float on its surface, causing problems different from those discharges which readily mix with the water. The term "debris," which would include such things as building materials, old tires and metal, would cause a still further hazard, for example, physical damage to individuals and inhabitants of the waters.
We cannot accept defendant's contention that because the term "hazardous substances" is defined in N.J.S.A. 58:10-23.3 as "such elements and compounds which, when discharged in any quantity into * * * the waters of this State * * * presents a serious danger to the public health or welfare, including but not limited to, damage to the environment, fish, shellfish, wildlife, vegetation, shorelines, stream banks, and beaches," the statute here under consideration must be construed to prohibit only those substances which by their chemical composition are hazardous, deleterious, destructive or poisonous, no matter how small the amount discharged, or regardless of the conditions or circumstances under which the discharge occurs. The argument is non sequitur. Perhaps the definition of hazardous substances contained in N.J.S.A. 58:10-23.3 would be helpful in determining what that term means as used in N.J.S.A. 23:5-28. It does not, in our opinion, shed any light on the definition of the other adjectives employed.
II
Defendant argues that the construction placed upon N.J.S.A. 23:5-28 by the trial judge and its application to defendant's conduct deprive the defendant of due process of law. The trial judge held that cold water may be a pollutant in one instance and not in another, and that its discharge by *386 defendant into the warmer water of Oyster Creek constituted the introduction of a deleterious substance into those waters in violation of N.J.S.A. 23:5-28. Defendant contends that by construing the statute in this manner the trial judge has rendered it unconstitutional because of vagueness. It contends that under that construction the question of violation of the statute would depend upon conduct which would not be regarded as prohibited in advance.
Defendant's argument in this connection relies to a great extent on its urged construction of the statute which would prohibit the discharge of only those substances which are inherently hazardous, deleterious, destructive or poisonous, a construction which we have rejected. The argument also somewhat conveniently overlooks defendant's knowledge that the normal operation of its generating plant caused the elevation of the temperature of Oyster Creek, which in turn attracted fish to the area at times when they ordinarily would not have been present. Defendant does not assert that it was ignorant of the fact that a sudden lowering of the temperature of the waters would have a deleterious effect on those fish. A clear object of the statute is to prevent discharges harmful to life in the waters of this State, an appropriate regulatory object of the Legislature. Since the conduct sought to be controlled is not fairly susceptible to precise definition, general language may constitutionally be employed. State v. New York Central R.R. Co., 37 N.J. Super. 42 (App. Div. 1955). We find the language employed by the Legislature in N.J.S.A. 23:5-28 meets the constitutional test.
III
Defendant also claims that the trial judge erroneously considered testimony of a legislator given at a hearing on the bill during the course of its passage as extrinsic aid to the construction of N.J.S.A. 23:5-28. Dumont Lowden, Inc. v. Hansen, 38 N.J. 49 (1962), is cited as authority for this *387 proposition. As we noted above, the trial judge, in concluding that the introduction of cold water into Oyster Creek violated the statute, referred to the statement of a legislator given at a public hearing.
Defendant's argument studiously ignores decisions to the contrary beginning with Deaney v. Linden Thread Co., 19 N.J. 578 (1955), in which the scope of legislative history which courts are permitted to examine was expanded to include the legislative introducer's statement attached to a bill at the time of its passage. The later decision in N.J. Pharmaceutical Ass'n v. Furman, 33 N.J. 121 (1960), approved the use of information contemporaneous with the passage of the bill as an aid to statutory construction: ("Courts may, of course, freely refer to legislative history and contemporaneous construction for whatever aid they may furnish in ascertaining the true intent of the legislation." 33 N.J. at 130). More recently, this trend has been evidenced by the approval of the use of letters written by the person suggesting the legislation and statements by the governor in office at the time of its passage, State v. Madden, 61 N.J. 377, 388 (1972); and memoranda prepared by those who took part in the drafting of the legislation. Data Access Systems, Inc. v. State, 63 N.J. 158, 165 (1973); In re Lambert, 63 N.J. 448, 452-453 (1973).
Contrary to defendant's assertions, our courts have adopted the policy of considering a broad spectrum of information (weighing its credibility and relevance) as a tool in determining the intent of the Legislature:
Nor do we think it is improper to consider materials which may never have met the legislative eye. While a proposed enactment may first see the light of day in legislative chambers, its conception and preparation have frequently taken place elsewhere. This is normally true of administrative proposals. Of course such materials must be carefully scrutinized and their weight and authenticity evaluated, but we see no merit in a rule demanding their total exclusion from judicial consideration. [Data Access Systems, Inc. v. State, above, 63 N.J. at 167] *388 Dumont Lowden, Inc. v. Hansen, above, on which defendant relies, is readily distinguishable since it dealt with post-adoption, self-serving statements of legislators. Accordingly, we find it was proper for the trial judge to have considered the assemblyman's explanation of the bill before a committee of the Legislature as an aid to construction.
IV
The third count of the complaint alleged that defendant's negligent or willful acts caused damage to the public resources (fish held by the State in trust for the public) and as a consequence the State was entitled to compensatory damages. Defendant describes this count of the complaint as a claim for damages predicated on common law liability for tort. Defendant now contends that in discharging the cold water into Oyster Creek it performed neither an intentional nor negligent act; further, that it may not be held to a standard of strict liability, and, therefore, it should not be held liable in tort.
The trial judge did not discuss the standards under which he found defendant liable in tort, and, indeed, the State did not discuss either intent or fault concepts during the trial. We find, however, that the evidence presented below established facts which support a determination that defendant was negligent. Its own employees admitted in their testimony, for example, that there were ways alternative to the pumping method employed to dispose of radioactive wastes which may have remained in the plant at the time of its shutdown. Defendant's plant manager informed one of the State's inspectors that he would cease operation of the pumps the next time it became necessary to shut down the condenser. Again, although no immediate fish kills resulted from earlier shutdowns, the fact finder could have found from the evidence that defendant should have known, and probably did know, that continued operation of the circulating *389 and dilution pumps while the condenser was not operating would seriously reduce the water temperature, and that such sharp reduction in water temperature would have damaged aquatic life. Defendant has been licensed by the Atomic Energy Commission to operate its atomic powered generating plant because of its professed expertise in this area. This expertise has been confirmed by the Federal Government. Thus, the standards to be applied here involve that of the reasonably prudent plant operator and not the reasonably prudent man in the street. The elementary physical and thermodynamic phenomena involved here are unquestionably, or should unquestionably be, within defendant's expertise. Considering this observation, there should be no question as to the foreseeability of the results of the cold water pumping operation. Defendant may not be exempted from the use of reasonable judgment merely because prior experiences were such that it did not subjectively expect a fish kill to result from its acts.
The trial judge did not specify, and we do not conclude from the record or his opinion, that he used strict liability standards in reaching his conclusion that defendant was liable under the third count. We find it unnecessary to discuss this issue, although suggested by both parties, because it is apparent that the fish kill was caused solely by the pumping of the cold water which cannot be considered an ultra-hazardous activity. Any radioactive hazard that did exist could have been eliminated simply by turning off the water pumps. The damage that resulted did not occur from the operation of the nuclear generator. It obviously occurred because of a conscious choice exercised by defendant which left the water pumps running while the plant was shut down.
We conclude that the trial judge was presented with sufficient credible evidence from which he reasonably could have concluded that defendant was negligent under the circumstances. State v. Johnson, 42 N.J. 146 (1964).
*390 V
In its fourth and fifth defenses to the State's complaint defendant claimed that the shutdown of its generating plant and the continued circulation of water into the discharge canal were necessitated by requirements contained in its operating license issued to it by the Atomic Energy Commission. In short, defendant claims that unavoidable necessity required it to perform the acts that the State claims constituted the violation of N.J.S.A. 23:5-28 as alleged in the first count of the complaint. Our courts have long recognized the doctrine of unavoidable necessity. See e.g., Weehawken Tp. Bd. of Health v. N.Y. Central R. Co., 4 N.J. 293, 301 (1950); State v. Mundet Cork Corp., 8 N.J. 359, 371 (1952), cert. den. 344 U.S. 819, 73 S.Ct. 14, 97 L.Ed. 637 (1952). We conclude, however, that that defense has no applicability here.
Our review of the record convinces us that defendant failed to meet its burden in showing that it was necessary for it to have operated the circulation and dilution pumps while the plant was shut down. There is nothing in the record to indicate that the plant was emitting radioactive wastes while it was out of operation. Assuming that there was a concentration of radioactive effluent from undetermined sources in the primary containment area at the time of shutdown, that concentration had not, by defendant's assertions, reached the allowable limit at the time of shutdown. It seems probable, therefore, although defendant produced no testimony in this regard, that any radioactive material on the premises would have been satisfactorily diluted fairly promptly by a shorter operation of the pumps. Since no further radioactive emissions came from the plant during shutdown, it should be apparent that the continued operation of the pumps was unnecessary. The record does disclose that the probable explanation of the continued operation of the pumps of the plant after shutdown was for the convenience of defendant. One of the employees *391 defended the continued operation of the pumps during shutdown as a measure to prevent corrosion of the condenser tubes from air and to facilitate resumption of the generator operation after repairs had been effected. This is a far cry from the claimed necessity to dilute atomic wastes. Unquestionably, if defendant proved that it was necessary to continue the pumps in operation while the plant was shut down in order to dilute atomic wastes which were then being produced by the plant, the trial judge would have had to cede to federal authority with respect to the operation of the pumps on the ground of preemption. See Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8 Cir.1971), aff'd 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972). The record discloses, however, that defendant utterly failed to carry its burden of proof on the issue of necessity (as distinguished from convenience), and the trial judge, therefore, quite properly refused to employ the doctrine in reaching his conclusions.
In view of our findings here, we regard as frivolous defendant's assertion that the State is attempting to regulate the disposal of radioactive wastes by challenging its decision as and when to operate the pumps. We also note that the federal atomic energy statutes and regulations, which are clearly preemptive, specifically provide in 42 U.S.C.A., § 2021 (k) that nothing therein should be construed to affect the authority of any State to regulate activities for purposes other than protection against radiation hazards. Northern States Power Co. v. Minnesota, above, is not to the contrary.
VI
Both parties agree that the State has an interest which gives it standing to sue under the parens patriae doctrine for injunctive relief from pollution in navigable waters which causes injury to fish. McCready v. Virginia, 94 U.S. 391, 394, 24 L.Ed. 248 (1877); Toomer v. Witsell, 334 U.S. 385, 399, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). Defendant *392 contends that the third count of the complaint under which the State sought recovery, on common law principles, of compensatory damages for the destruction of the fish, fails to state a claim upon which relief could be granted. During the trial, and on this appeal, it is defendant's contention that the State does not have a proprietary right to the fish in its waters sufficient to support an action for compensatory damages for the destruction thereof. The trial judge denied defendant's motion to dismiss, and we reject this argument on appeal.
The State argues that when fish are destroyed by pollution, thermal or otherwise, the State suffers both environmentally and economically. It argues that fish which are found in tidal waters such as Oyster Creek are tidal resources, and that tidal resources have long been recognized as subject to the public trust doctrine and the objects of special protection. See Arnold v. Mundy, 6 N.J.L. 1, 71 (Sup. Ct. 1821). In that old decision the State's fishery resource was said to be "in the hands of the sovereign power, to be held, protected, and regulated for the common use and benefit." Here, the trial judge found that the State had the right and the fiduciary duty to seek damages for the destruction of wild life which are part of the public trust:
The State has not only the right but also the affirmative fiduciary obligation to ensure that the rights of the public to a viable marine environment are protected, and to seek compensation for any diminution in that trust corpus. [125 N.J. Super. at 103]
We agree with the trial judge's conclusion and with his rejection of the artificial differences between the State's role as public trustee and its role under the fiction of parens patriae. In this bicentennial year it seems only proper that we reject confining concepts such as sovereign interests springing from the original 13 colonies. It seems to us that absent some special interest in some private citizen, it is questionable whether anyone but the State can be considered the proper party to sue for recovery of damages to the environment.
*393 The right of the State to sue under similar circumstances was upheld in the federal decisions in Dept. of N. Res. v. Amerada Hess Corp., 350 F. Supp. 1060, 1067 (D. Md. 1972), motion for relief den., 356 F. Supp. 975 (D. Md. 1973); Maine v. M/V Tamano, 357 F. Supp. 1097 (S.D. Me. 1973), mod. on other grounds, 373 F. Supp. 839 (S.D. Me. 1974). Cf. Dept. of Fish & Game v. S.S. Bournemouth, 307 F. Supp. 922 (C.D. Cal. 1969). Defendant seeks to distinguish the holding in Dept. of N. Res. v. Amerada Hess Corp., above, claiming that that court permitted the State of Maryland to maintain a common law action solely because the state had not enacted legislation upon which to base an action for relief from the owner and operator of a tanker who had discharged oil into the Baltimore harbor. In fact, the holding of the District Court is completely at variance with defendant's contention:
In upholding the State of Maryland's right to maintain the instant suit, this Court is not unmindful of the problems faced by the State of Maryland, and the other states of this country, as they engage in the daily battle to halt the pollution of their natural resources. For this Court to hold that unless a state has enacted legislation in the area of pollution control, it may not bring a common law suit to combat this problem, would be to unnecessarily tie the hands of the State in its war against pollution. * * * [350 F. Supp. at 1067]
The two decisions cited by defendant in its support, State v. Dickinson Cheese Company, 200 N.W.2d 59 (N.D. Sup. Ct. 1972), and Commonwealth v. Agway, Inc., 210 Pa. Super. 150, 232 A. 2d 69 (Super. Ct. 1967), we find to be distinguishable and not persuasive. The North Dakota case interpreted a statute of that state as not providing a right in the state to sue for damages. To the exent the Pennsylvania decision denied "propery right" in the Commonwealth and the concurring opinion, dissenting from that proposition points out that this is not the primary ground for the decision we disagree for the reasons set forth above.
*394 VII
The State has cross-appealed, claiming that the award of $935 as damages under the third count is inadequate. Our reading of the record satisfies us that the award made by the trial judge is the only one that could have been made under the proofs adduced by the State. While the measure of damages might have been the extent to which the quality of the environment had been diminished by the actions of defendant, the State's proofs fell far short of establishing such a basis. As defendant quite properly suggests, damages applying such a standard might well have been speculative. Accordingly, we find no merit to the State's cross-appeal.
The judgment of the Law Division under the first and third counts of the complaint is affirmed.
NOTES
[1] Both the south branch of the Forked River and Oyster Creek were subject to tidal flow prior to the construction of the Oyster Creek generating plant. As a result of defendant's pumping operations, both streams were made one-directional channels. The tides continued to rise and fall vertically in these waterways but did not ebb and flow. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263710/ | 336 Md. 606 (1994)
NATIONAL GLASS, INC.
v.
J.C. PENNEY PROPERTIES, INC.
No. 27, September Term, 1994.
Court of Appeals of Maryland.
December 7, 1994.
James E. Williams, Washington, DC (Jester and Williams, on brief), for appellant.
Carlton T. Obecny, Bethesda (Scott S. Braugh, Plano, TX, on brief), for appellee.
Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, CHASANOW, BELL and RAKER, JJ., and JOHN F. McAULIFFE, Judge of the Court of Appeals (retired), Specially Assigned.[*]
CHASANOW, Judge.
In the instant case we are called upon to determine whether Maryland Code (1974, 1988 Repl.Vol.), Real Property Article, § 9-113 voids a provision in a contract waiving the right to claim a mechanic's lien. The contract provided that construction work would be performed in Maryland and that the law of Pennsylvania, which permits a waiver of the right to claim a mechanic's lien, would govern the contract. For the reasons set forth below, we hold that the parties' contractual provision waiving the right to claim a mechanic's lien is unenforceable in Maryland.
I.
This appeal arises out of an action filed by National Glass, Inc. (NGI), in the Circuit Court for Charles County against J.C. Penney Properties, Inc. (J.C. Penney) seeking to establish a mechanic's lien for work and materials furnished by NGI on a newly constructed J.C. Penney store. NGI, a Maryland corporation, entered into a subcontract with a general contractor, John R. Hess, Inc. (Hess), a Pennsylvania corporation, in connection with the construction of a new J.C. Penney department store, which was to be located at the St. Charles Towne Center in Charles County, Maryland.[1]
Pursuant to the subcontract with Hess, NGI agreed to provide specified labor, materials and supplies for the installation of glass, windows and doors for the store at a cost of $90,000. NGI completed the work and when full payment was not received, NGI filed a petition to establish a mechanic's lien in the amount of $56,579.00, which they claimed was still due under the subcontract.
A brief synopsis of the arguments in the circuit court relevant to this appeal is as follows:[2] J.C. Penney argued that the circuit court lacked jurisdiction to consider whether NGI was entitled to a mechanic's lien because the subcontract between NGI and Hess provided that all claims and disputes arising out of the subcontract were to be submitted to arbitration in Pennsylvania. J.C. Penney further contended that NGI, under the subcontract, waived its right to claim a mechanic's lien. That mechanic's lien waiver provision provided as follows:
"Subcontractor hereby waives and releases all liens or right of liens now existing or that may hereafter arise for any and all work or labor performed or material furnished under this Subcontract, upon said facility, or monies due or to become due to Contractor, and agrees to furnish a good and sufficient waiver of lien in proper form for filing from every person or entity furnishing labor or materials for this Project under Subcontractor."
NGI contended that Md.Code (1974, 1988 Repl.Vol.), Real Property Art., § 9-113, rendered any waiver of the right to claim a mechanic's lien void and thus, the waiver provision in the subcontract could not serve as a basis for dismissing NGI's petition to establish a mechanic's lien. In response, J.C. Penney asserted that Maryland law was not controlling because the parties chose Pennsylvania law to govern the interpretation and enforcement of the subcontract and Pennsylvania law permitted parties to waive the right to claim a mechanic's lien.[3] The circuit court dismissed NGI's petition for failure to state a claim upon which relief could be granted because the provision in the subcontract waiving the right to claim a mechanic's lien precluded NGI from obtaining a mechanic's lien but the court granted NGI leave to amend its petition. NGI filed a motion for reconsideration of the dismissal with leave to amend. That motion was denied and NGI then appealed to the Court of Special Appeals. Prior to the intermediate appellate court's consideration of this case we issued a writ of certiorari. After determining that the appeal was from an unappealable interlocutory order, we dismissed the appeal. See National Glass v. J.C. Penney, 329 Md. 300, 301, 619 A.2d 528, 528 (1993). Subsequent to our dismissal of the appeal, the circuit court entered an order dismissing NGI's petition with prejudice. The appeal from that final order is now before this Court.
II.
This Court has stated that it is "generally accepted that the parties to a contract may agree as to the law which will govern their transaction, even as to issues going to the validity of the contract." Kronovet v. Lipchin, 288 Md. 30, 43, 415 A.2d 1096, 1104 (1980). We have also cited with approval and followed Restatement (Second) Conflict of Laws § 187(2) (1971), which adopts this general rule and sets forth the limitations on the parties' choice of law. See Kronovet, 288 Md. at 44, 415 A.2d at 1104-05. Restatement § 187(2) (Supp. 1989) provides:
"The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties."
In Kronovet, the parties provided in a deed of trust that both the deed of trust and the rights and indebtedness secured by the deed of trust would "be construed and enforced according to the laws of the State of Maryland." Kronovet, 288 Md. at 37, 415 A.2d at 1100-01. Notwithstanding that contractual choice of law provision, appellants argued that Maryland law could not govern the dispute because Maryland did not have a substantial relationship to the contract. In rejecting that argument, this Court held that even assuming that New York law would apply absent the contractual choice of law provision, the parties' choice of Maryland law was proper under Restatement § 187(2) because the "transaction ... ha[d] sufficiently substantial contacts with Maryland to permit the parties effectively to have chosen Maryland law to apply * * * [and] decision of the ... issue under Maryland law would not be contrary to a fundamental policy of New York." Kronovet, 288 Md. at 46, 415 A.2d at 1105-06; see also Finch v. Hughes Aircraft Co., 57 Md. App. 190, 231, 469 A.2d 867, 887 (1984) (enforcing the parties' choice of California law to control the interpretation of a license agreement in Maryland because "California ha[d] a substantial relationship to the parties ... and the application of California law [would] not offend any fundamental policy of the State of Maryland"), cert. denied, 469 U.S. 1215, 105 S.Ct. 1190, 84 L.Ed.2d 336 (1985).
Applying Restatement § 187(2) to the instant case, we shall assume that Pennsylvania has a substantial relationship to the parties and the transaction and that there was a reasonable basis to choose Pennsylvania law. See Restatement § 187(2)(a). We, nevertheless, hold that the waiver of mechanic's lien provision, albeit valid in Pennsylvania, still should not be enforced in Maryland. See Restatement § 187(2)(b).
We initially note that Maryland law would be applicable had the parties failed to include a choice of law provision in their contract. Generally, the law of the state where the real property is located governs the creation of a mechanic's lien. See 2 Joseph H. Beale, A Treatise on the Conflict of Laws, § 230.1, at 949 ("[a] mechanic's ... lien on a building is governed by the law of the state of location of the building on which work has been done or materials used"); see also Nuclear Corporation of America v. Hale, 355 F. Supp. 193, 196 (N.D.Tex.) ("[a] materialman's lien is a creature of the law of the state where the real property, benefited by the materials, is situated and that law governs the mode of its operation"), aff'd, 479 F.2d 1045 (5th Cir.1973). In fact, J.C. Penney concedes that "if the Subcontract in question did not expressly provide for a choice of law ... then the law of the state where the real property is located, Maryland, would govern the operation of mechanic's liens." Thus, because the law where the real property is located governs the operation of a mechanic's lien and the property that would be subject to a mechanic's lien in the instant case is located in Maryland, Maryland law would govern the present dispute absent the choice of law provision in the subcontract.
Applying Restatement § 187(2)(b), the parties' choice of Pennsylvania law to govern the subcontract will not be enforced if application of Pennsylvania law is contrary to a fundamental policy of Maryland. This Court has held that "merely because Maryland law is dissimilar to the law of another jurisdiction does not render the latter contrary to Maryland public policy and thus unenforceable in our courts. Rather, for another state's law to be unenforceable, there must be `a strong public policy against its enforcement in Maryland.'" Bethlehem Steel v. G.C. Zarnas & Co., 304 Md. 183, 189, 498 A.2d 605, 608 (1985) (quoting Texaco v. Vanden Bosche, 242 Md. 334, 340-41, 219 A.2d 80, 84 (1966)); see also Harford Mutual Insurance Co. v. Bruchey, 248 Md. 669, 674, 238 A.2d 115, 118 (1968). Therefore, we must determine whether Maryland's prohibition against the waiver of the right to claim a mechanic's lien evidences a strong public policy.
Bethlehem Steel is analogous to the present case. In that case, we were required to determine whether Maryland's statutory prohibition against clauses in construction contracts providing for indemnity against the promisee's sole negligence evidenced a sufficiently strong public policy to prevent the application of Pennsylvania law which would have permitted such a provision. The Maryland statute at issue in Bethlehem Steel provided:
"A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relating to the construction, alteration, repair, or maintenance of a building . .. purporting to indemnify the promisee against liability for damages arising out of bodily injury to any person or damage to property caused by or resulting from the sole negligence of the promisee or indemnity, his agents or employees, is against public policy and is void and unenforceable." (Emphasis omitted).
304 Md. at 187, 498 A.2d at 607 (citing Md.Code (1974, 1984 Repl.Vol.), Courts and Judicial Proceedings Art., § 5-305). In determining whether the statute evidenced a strong public policy, we noted that the legislature "has unequivocally told the Maryland judiciary that such a clause `is void and unenforceable'... [and] the General Assembly expressly stated that such indemnity provision `is against public policy.'" Bethlehem Steel, 304 Md. at 190, 498 A.2d at 608 (citation omitted). Thus, we concluded that the legislature's "explicit determination of public policy is sufficient ... to override the lex loci contractus principle."[4]Id.
Our mechanic's lien law, set forth in Md.Code (1974, 1988 Repl.Vol.), Real Property Art., §§ 9-101 et seq.,[5] provides that any contractual provision attempting to waive the right to claim a mechanic's lien is void. Section 9-113 of the Real Property Article, as it existed at the time of the dispute in question, provided:
"(a) In general. An executory contract between a contractor and any subcontractor that is related to construction, alteration, or repair of a building, structure, or improvement may not waive or require the subcontractor to waive the right to:
(1) Claim a mechanic's lien; or
(2) Sue on a contractor's bond.
(b) Provisions void. Any waiver provision of a contract made in violation of this section is void." (Emphasis added).
Section 9-113 was subsequently amended by the legislature in 1994.[6] The amended § 9-113 reads:
"(a) In general. An executory contract between a contractor and any subcontractor that is related to construction, alteration, or repair of a building, structure, or improvement may not waive or require the subcontractor to waive the right to:
(1) Claim a mechanic's lien; or
(2) Sue on a contractor's bond. * * * *
(c) Void provisions. Any provision of a contract made in violation of this section is void as against the public policy of this State." (Emphasis added).
Thus, this amended statute provides clear legislative indication that any provision attempting to waive the right to a mechanic's lien is void "as against the public policy" of Maryland. The amendment to § 9-113 is not a substantive change, but is merely a clarification as to why a provision waiving the right to claim a mechanic's lien is void and unenforceable. As this Court stated in Bethlehem Steel:
"[T]his is not a situation where Maryland law is simply different from the law of another jurisdiction. Here, the General Assembly of Maryland has specifically addressed [the contract clause in question] and has unequivocally told the Maryland judiciary that such a clause is `void and unenforceable.' Moreover, ... the General Assembly expressly stated that such ... provision `is against public policy.'"
304 Md. at 190, 498 A.2d at 608 (citing Md.Code (1974, 1984 Repl.Vol.), Courts and Judicial Proceedings Art., § 5-305). The Maryland General Assembly has unequivocally told the Maryland judiciary that a contractual provision waiving the right to claim a mechanic's lien is void as against public policy. In accord with this Court's holding in Bethlehem Steel, § 9-113 evidences Maryland's strong public policy prohibiting the waiver of the right to claim a mechanic's lien. Thus, application of Pennsylvania law to the instant case, which permits the waiver of the right to claim a mechanic's lien, would violate a fundamental policy of Maryland.
The only remaining inquiry under Restatement § 187(2)(b) in determining whether the parties' choice of Pennsylvania law may be applied in Maryland is whether Maryland has a materially greater interest in the determination of the issue than Pennsylvania. In the instant case, it is clear that Maryland has a materially greater interest in the determination of this issue than Pennsylvania. The central issue in the instant case focuses on whether a contractual provision waiving the right to claim a mechanic's lien on Maryland property for work performed in Maryland can be enforced in Maryland. In addition, the party to be protected by the mechanic's lien is a Maryland corporation which has furnished services on the property located in Maryland. In contrast, Pennsylvania's sole interest in the determination of the issue in the instant case is that the general contractor, Hess, who is not even a party to this action, is incorporated and located in Pennsylvania.[7] The Maryland statute's purpose is the protection of materialmen. See Riley v. Abrams, 287 Md. 348, 357, 412 A.2d 996, 1000 (1980); Reisterstown Lumber Co. v. Reeder, 224 Md. 499, 507, 168 A.2d 385, 389 (1961). Thus, because Maryland has a strong public policy protecting subcontractors against contractual provisions waiving the right to claim a mechanic's lien and because the property on which the Maryland subcontractor seeks to establish a mechanic's lien is located in Maryland, it is evident that Maryland's interest in the determination of the issues in the present case is materially greater than that of Pennsylvania.
In conclusion, we hold that because the parties' choice of Pennsylvania law fails to meet the requisites of Restatement § 187(2)(b), Pennsylvania law cannot be applied to resolve the dispute in the instant case. Thus, the contractual provision waiving the right to claim a mechanic's lien is unenforceable in Maryland.
III.
In holding that the trial court should not have dismissed NGI's petition to establish a mechanic's lien, we need not determine whether, after remand, the proper course of action would be to stay the show cause hearing if a petition for a stay pending arbitration is filed. The contract between Hess and NGI contains an arbitration clause, but J.C. Penney is not a party to that contract. We also note that under our mechanic's lien law, should a petition for a mechanic's lien be stayed pending arbitration, NGI will be protected to the extent that the filing of the lien petition will serve as notice to subsequent purchasers "of the possibility of a lien being perfected." See § 9-102(e); see also In re Ian Homes, Inc., 126 B.R. 933, 934-35 (Bankr.D.Md. 1991).
IV.
Because the parties' choice of Pennsylvania law cannot validate the prohibited provision waiving the right to file a mechanic's lien, the trial court's dismissal of NGI's petition was in error.
JUDGMENT OF THE CIRCUIT COURT FOR CHARLES COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE J.C. PENNEY PROPERTIES, INC.
NOTES
[*] McAULIFFE, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.
[1] Hess is currently a debtor in Chapter 7 bankruptcy protection.
[2] For a detailed explanation of the proceedings below, see National Glass v. J.C. Penney, 329 Md. 300, 619 A.2d 528 (1993).
[3] See Pa. Stat. Ann. tit. 49, § 1401 (1965) (providing that "[a] contractor or subcontractor may waive his right to file a claim by a written instrument signed by him or by any conduct which operates equitably to estop such contractor or subcontractor from filing a claim").
[4] The lex loci contractus principle requires a strong public policy to override application of the law of the place of making of the contract. Restatement (Second) Conflict of Laws § 187(2)(b) (1971, Supp. 1989) also requires a strong public policy to override application of the parties' choice of law. Thus, a determination of whether a contractual provision violates a strong public policy to override either the lex loci contractus principle or the parties' choice of law is analogous.
[5] Unless otherwise specified, all references to §§ 9-101 et seq. are to Maryland Code (1974, 1988 Repl.Vol.), Real Property Article.
[6] The amendments to § 9-113 went into effect on October 1, 1994.
[7] Given that the parties have produced no conclusive evidence establishing in which state the contract in question was formed, it cannot be said that Pennsylvania has an interest based on the fact that the contract was formed in that state. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263715/ | 25 Md. App. 458 (1975)
336 A.2d 145
WILLIAM EVERDELL
v.
JOHN LEE CARROLL ET UX.
No. 478, September Term, 1974.
Court of Special Appeals of Maryland.
Decided April 3, 1975.
*459 The cause was argued before MOYLAN, MENCHINE, DAVIDSON and MELVIN, JJ.
Roger D. Redden, with whom were Francis X. Wright and Robert R. Price, Jr., on the brief for appellant.
Howard Wood and James D. Wright for appellees.
MENCHINE, J., delivered the opinion of the Court.
Time was that the private lane commencing at Tilghman's Neck Public Road (now DeCoursey Thom Road) served without incident the 590 acre tract through which it ran to the farthest reaches of the land. Nor was its course impeded, save by farm buildings that forced in part a snake-like course, by intersecting lanes and by 90 degree turns. While the tract was singly owned, its users traversed the lanes in seeming harmony, their free passage unobstructed by gates, the speed of their travel limited only by the caution induced by its described design, by the screening effect of natural and planted trees and shrubs and by the signs posted by its owners to indicate its hazards. Unhappily, this harmony, this heaven's first law, changed to discord when the owners of the entire tract disposed of parts of the estate.
The entire tract, known as Blakeford Farm, had been in the ownership of Clarence W. Miles and wife (Miles). The southern and western borders of Blakeford Farm, in Queen Anne's County, Maryland, extended to the waters of Queenstown Creek and of the Chester River, respectively. By deed dated March 13, 1958, Miles conveyed to Potter a tract *460 of 18.113 acres situate and lying at the actual confluence of the two bodies of water at the southwest corner of the whole tract. That deed contained the following clauses:
"TOGETHER with the buildings and improvements thereupon erected, made and being, and all and every the rights, roads, ways, waters, privileges, appurtenances and advantages to the same belonging or in anywise appertaining; and TOGETHER WITH the right of ingress to and egress from the above described property in common with the said Clarence W. Miles and Eleanor A. Miles, his wife, their assigns, the survivor of them, his or her heirs and assigns, over the private lane leading from the Tilghman's Neck Public Road into and through the farm building area of Blakeford Farm, and thence by a farm lane to the northerly end of a twenty-foot Right-of-Way surveyed by Shew & Bartlett on July 29, 1957, and thence by said twenty-foot Right-of-Way to the land hereinabove described and hereby conveyed."[1]
On June 15, 1970 Potter conveyed the entirety of the 18.113 acre tract to the appellant, William Everdell (Everdell). The latter deed contained the following clause:
"TOGETHER with the buildings and improvements thereupon erected, made or being and all and every the rights, roads, ways, waters, privileges, appurtenances and advantages to the same belonging or in anywise appertaining; and especially together with the right of ingress to and egress from the above described property in common with Clarence W. Miles and Eleanor A. Miles, his wife, their assigns, the survivor of them, his or her heirs and assigns, over the private lane leading from the Tilghman's Neck Public Road by the route fully described in said deed; * * *"
*461 It was purchased at a cost of $185,000.00.
On June 30, 1970 Miles conveyed to appellee, John Lee Carroll[2] (Carroll) a 266.256 acre tract from the remaining acreage. That deed contained the following clauses:
"* * * TOGETHER with a perpetual easement of ingress and egress at all times by all means and for all purposes, upon, over and across the existing entrance lane thirty (30) feet wide leading from the public road now known as the DeCoursey Thom Road, formerly known as the Tilghman's Neck Public Road in a generally southerly direction to the real estate hereinabove described and hereby conveyed, in common with the said Clarence W. Miles and Eleanor A. Miles, his wife, their heirs and assigns.
SUBJECT NEVERTHELESS to the legal effect of the easements granted to Virginia B. Potter, her heirs and assigns, by the said Clarence W. Miles and Eleanor A. Miles, his wife, by deed dated March 13, 1958, and recorded among said land records in Liber T.S.P. No. 40, folio 23; * * *."
The Carroll tract enveloped all land boundaries of the Everdell tract, extending from Queenstown Creek to the Chester River.
The previously recited clause in the deed from Miles to Potter, coupled with that in the subsequent deed from Potter to Everdell, had the legal effect of making the remaining property of Miles and ergo, the property of Carroll, servient to the dominant right of Everdell to the extent of the interest thereby created and conveyed. Desch v. Knox, 253 Md. 307, 310, 252 A.2d 815, 817.
In the subject litigation Everdell, owner of the dominant estate, sought to enjoin Carroll, owner of the servient estate, from maintaining allegedly unlawful obstructions within *462 the right-of-way. The answer of Carroll admitted placement of "bumps" and barriers along the lane, but maintained in substance that they did not impinge upon Everdell's reasonable use of the lane and were within Carroll's dominion as reasonably necessary for his enjoyment of the fee through which the lane ran. The answer also alleged that Everdell was estopped to seek injunction because he had made "representations that he would join in such experimentation." Carroll also filed a counterclaim, alleging agreement by Everdell to relocate the 20 foot right-of-way leading from the Everdell property to the east-west leg of the farm lane. The trial court denied Everdell's claim for injunction and dismissed Carroll's counterclaim.
Although both Everdell and Carroll entered appeals from the decree of the trial court, the brief of Carroll declares: "The denial of the Counterclaim is not a subject of this appeal." Such denial will, accordingly, not be considered in this opinion.
We hold that the recited clause in the deed from Miles to Potter, supra, granted a right-of-way only. The deed evidenced a clear intent to retain in Miles such other rights or benefits of his fee simple estate as were not inconsistent with such grant.
In 1829 it was declared in Bosley v. Susquehanna Canal, 3 Bland 63, 67:
"A right of way, whether public or private, is essentially different from a fee simple right to the land itself over which the way passes. A right of way is nothing more than a special and limited right of use; and every other right or benefit derivable from the land, not essentially injurious to, or incompatible with the peculiar use called the right of way, belongs as absolutely and entirely to the holder of the fee simple as if no such right of way existed. He is, in fact, for every purpose considered as the absolute owner of the land, subject only to an easement or servitude; he may recover the land so charged by ejectment; he may *463 bring an action of trespass against any one who does any injury to it, not properly incident to an exercise of the right of way; he has a right to the trees growing upon it; to all minerals under its surface; he may carry water in pipes under it; and the freehold with all its profits, not inconsistent with the right of way, belong to him."
There has been no departure from that rule of law. Desch v. Knox, supra.
The deed from Miles to Carroll granted and conveyed by metes and bounds description all the right, title, interest and estate in the 266.256 acre tract, subject only to the right-of-way previously granted by the Potter deed. Contained within that description was that part of the bed of the farm lane involved in the subject proceeding. Thus Carroll became seized and possessed of the fee simple estate therein except to the extent that the same had become servient to the right-of-way previously granted by Miles to Potter. All rights of Potter, of course, by mesne conveyance had been granted and conveyed to Everdell.
We find that our decision is controlled by the rules of law laid down in Baker v. Frick, 45 Md. 337. Although an action at law,[3]Baker v. Frick is a leading case, applicable to and cited with approval in injunction cases. This case first enunciated in Maryland the rules of law under which the respective rights of the owners of dominant and servient estates are to be determined in disputes relating to modification of rights-of-way. At page 340, et seq., it was said:
"The road in question is a private way over the defendant's lands. `Nothing passes as incident to such a grant, but that which is necessary for its reasonable and proper enjoyment.' 3 Kent, 419, 420.
"What is necessary for such reasonable and *464 proper enjoyment of the way granted, and the limitations thereby imposed on the use of the land by the proprietor, depends upon the terms of the grant, the purposes for which it was made, the nature and situation of the property subject to the easement, and the manner in which it has been used and occupied.
"As said by Marshall, C.J., in Maxwell v. McAtee, 9 B. Mon. 21, `Notwithstanding such a grant, there remains with the grantor the right of full dominion and use of the land, except so far as a limitation to his right is essential to the fair enjoyment of the right of way which he has granted. It is not necessary that the grantor should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him, because they are not granted. And for the same reason, the exercise of any of them cannot be complained of by the grantee, who can claim no other limitation upon the rights of the grantor, but such as are expressed in the grant, or necessarily implied in the right of reasonable enjoyment.'
"In that case it was decided that `the grant of a right of way over or through the lands of an individual, does not imply that the grantor may not erect gates at the points, where the way enters and terminates.' That decision has been approved by courts of high authority in other States. Bean v. Coleman, 44 N.H. 539; Garland v. Farber, 47 N.H. 301; Hoopes v. Alderson, 22 Iowa, 161; Bakeman v. Talbot, 31 N.Y. 366, 370, 371; Huron v. Young, 4 Lansing, 63."
The Court added at 343:
"The questions whether under all the circumstances of the case, as disclosed by the testimony, the gates were necessary to the defendant for the useful and beneficial occupation *465 of his land, looking to the situation of his property; and whether the particular gates complained of, were usual and proper under the circumstances, and the further question whether their existence upon the road interfered with the reasonable use of the right of way by the plaintiff, considering the situation of his property and the manner in which it was occupied, and the interest of the parties as to the mode in which the right of way was to be used; these were all questions proper to be decided by the jury, upon the evidence in the case. On all these questions testimony was offered, legally sufficient to be submitted to the jury.
"`The doctrine that the facilities for passage where a private right of way exists, are to be regulated by the nature of the case, and the circumstances of the time and place, is very well settled by authority. Hemphill v. Boston, 8 Cush. 195; Cowling v. Higinson, 4 M. & W. 245. The last case determines in effect, that the extent of the privilege created by the dedication of a private right of passage, depends upon the circumstances and raises a question for the determination of the jury.' Bakeman v. Talbot, 31 N.Y. 370. We refer also to Hawkins v. Carbine, 3 Exch. 914, and Huron v. Young, 4 Lansing, 64."
In substance, Baker v. Frick had stated the proposition that, unless the terms of the grant itself prohibited such a course, or the purposes for which the grant was made, and the nature and situation of the property subject to the easement and the manner in which it has been used and occupied, implied such prohibition, the installation of a gate at the terminii of the right-of-way would be permissible if:
1. Its installation was necessary for the useful and beneficial occupation of the land of the servient estate; and
2. The particular gates complained of, were usual and proper under the circumstances; and
*466 3. The installation did not interfere with the reasonable use of the right-of-way by the dominant estate.
We address ourselves to the threshold question, namely, whether the right of the servient owner to make any modification of the right-of-way is prohibited either by the specific terms of the grant or by necessary implication.
The granted right-of-way did not in express terms deprive Carroll of the right to erect gates and thus did not expressly grant to Everdell an open road without gates. The purpose for which the grant was made is apparent from its very terms, namely, "the right of ingress to and egress from the [Everdell] property in common with the [fee owner]."
The nature, situation, use and occupation of the property subject to the easement at the time of its creation, however, is not capable of such easy definition. That part of the total right-of-way with which the present litigation is concerned was not the subject of a metes and bounds description, the document of its creation delineating it merely as a "private lane leading from the Tilghman's Neck Public Road into and through the farm building area of Blakeford Farm and thence by a farm lane to [a fully described twenty foot right-of-way].[4] The lane, replete with 90° turns, literally divided the Miles (now Carroll) tract into segments of various shapes and sizes. Movement, either afoot or by vehicle, from segment to segment of the servient estate, compelled continuing passage along or across its irregular route by its owner in the daily use of the lands through which it passed. Numerous dwellings, garages, sheds, silos and other farm buildings in close proximity to the lane were in such positions along its serpentine course that their utilization compelled movements into, across and along its path.
We are persuaded that a necessary modification of the right-of-way by the owner of the servient estate was not *467 explicitly or implicitly forbidden by the grant in the subject case. This conclusion simply means that the threshold requirement of Baker v. Frick has been met and we are required to pass to the elements essential to the application of its doctrine, namely, whether the evidence shows: (a) that modification of the right-of-way was necessary for the useful and beneficial occupation of the servient estate; (b) that the installations were usual and proper under the circumstances; and (c) that the installations did not interfere with the reasonable use of the right-of-way by Everdell.
Both Everdell and Carroll had rented their respective homes for about two years prior to their purchase. No traffic devices had been installed during that period. There was testimony to the effect that speeding vehicles on the lane had been a problem since 1956 with three or four accidents. None of the accidents had occurred at the points where "bumps" or barricades had been placed by Carroll. Both Carroll and Everdell are seasonal users of their respective properties.
The installation by Carroll of a series of "bumps" was a forerunner to the subject litigation. Although their installation initiated the Carroll-Everdell dispute, no substantial role was played by the "bumps" in continuing complaints by Everdell against Carroll or in the testimony of the witnesses. Indeed, the record tends to suggest that a decrease in the elevation of the "bumps" had created conditions whereby they no longer presented objectionable deterrent to the movement of traffic.
While the dispute concerning the "bumps" was raging between Everdell and Carroll and their respective counsel, discussions turned to possible use of some type of barricade to accomplish speed reduction of vehicles using the lane, in lieu of the "bumps". Everdell acknowledged such discussions, but protested vehemently when Carroll, without further notice, caused to be constructed and installed six gate-like wooden barricades, each approximately of the same size and shape, with a length approximately one half the width of the lane. The six partial barricades were set up in three pairs. These pairs, described by the witnesses as *468 barricades 1, 2 and 3, were installed in the lane in that progressive order from the direction of the public road toward the Everdell property. Placed on opposite sides of the lane, each half-gate of the pair would be set up at varying distances from its companion. We have reproduced a portion of plaintiff's Exhibit D showing the passage of the lane through the Carroll property with locations of the "bumps" and barriers indicated upon it.[5]
Barricade No. 1 was set up at a point where the lane began its passage through the first turn in the farm building area, with its first barrier being set up on the north side of the lane and the other barrier set up at a point near the stable on the opposite side. The outer wings of the respective barriers were 24 feet apart.
Barricade No. 2 was installed at the southernmost end of the farm building area with its first barrier placed at a point in the lane near the side of a garage and the other barrier set up beyond it on the opposite side. The outer wings of the respective barriers were 25 feet apart.
Barricade No. 3 was set up along the east-west course of the lane with its first barrier placed on the south side of the lane in approximate line with a hedge row 6 feet high at the end of a field planted in corn. Both the hedge row and the growing corn served to restrict visibility at the point. Its second barrier was placed on the opposite side of the lane in front of a garage or tool shed and shop. The outer wings of these respective barriers were 20 feet apart. For reasons that will hereafter become manifest, barricade No. 3 is at once the principal vexation of Everdell and the indispensable requisite of Carroll. The separate wings of barricade 3 are the closest of any. We have reproduced, in part, plaintiff's Exhibit D-3, a plat showing the point of placement in the lane.[6]
The barricades initially were constructed in the form of half gates standing upon small attached platforms at either end. Later the first two barricades were hinged to metal *469 rods inserted in pipes driven into the ground at or near the edge of the road. The third barricade was hinged to wooden posts but installed in such a way that swinging movement was limited by copper tubing so fixed upon the barrier that it could be moved up or down into or out of a pipe sunk into approximately the center of the right-of-way.
Carroll's reasons for the placement of the "bumps" and barricades are substantially fully articulated in the following quotation from his testimony:
"We gave this a good deal of thought and decided there were three real bad places, one at this corner of the farm yard, at the south corner of the farm yard, and in this work shed area just north of our house, those seem to be the three main danger points. The reason for the latter was cars would come out here at the north end of Mr. Everdell's described right-of-way and they would build up whatever, according to the type of car they had, whatever speed they could and really come in this turn with quite a bunch of speed. All of a sudden there was a very straight road and a very settled area and we felt we had to have some way of slowing them down at this place."
In further reference to barricade No. 3 Carroll said: "In order to get from our house to any main enjoyment of our living area of the farm we have to cross this road, and we do it continually."
Motion picture films showing the movement of vehicles through the several barricades formed part of the evidence presented in the trial court. Those films were shown also in this Court during the argument on appeal. The films showed the movement of: (a) a passenger vehicle and (b) a truck through the barricades in each direction. Such movements could be made at slow speed through barricades 1 and 2 without leaving the established course of the lane, although those barricades did occupy a portion of the bed of the existing lane. The passage of the vehicles through barricade 3 could be accomplished only at slower speed and by leaving *470 the established course of the lane. The trial judge described this condition as follows:
"The film shown by Defendant of this area [Barricade No. 3] indicates a modest weave of a vehicle of less than 50 degrees for a distance of less than 25 feet."
Our view of the films indicated that the vehicles shown were compelled to leave the established lane and to encroach upon the lands of Carroll, the truck to a greater extent than the passenger vehicle.
Everdell summarized his basic objection to the barricades as follows: (1) they forced vehicles to leave the established way; (2) they operated to delay heavy equipment that could produce very serious harm or inconvenience; (3) they may not be movable in the event of snow; (4) they forced motor vehicles onto the wrong side of the lane, thereby placing them in the path of oncoming traffic, and (5) at night, people unfamiliar with their existence were endangered by their presence.
Leonard Yates, a realtor, testifying as an expert witness for Everdell, said that the "bumps" and barricades reduced the value of the Everdell property. He explained that prospective purchasers would ask themselves, "If this can be constructed what else can be done to this right-of-way?" He said that close inquiry normally is made by prospective buyers about rights-of-way. On the other hand, Robert Sharp, a real estate broker called by Carroll, testified that in his opinion the "bumps" and barricades had no depreciating effect upon the value of the Everdell property. The rhetorical question asked by Yates points up the dangers inherent in unilateral modification of a right-of-way particularly here, where it is conceded that actual collisons have occurred on other parts of the lane but never within the areas of the subject modifications.
Two witnesses, one the Chief of Police of Centreville, called by Everdell, thought that barricade No. 3 would constitute an added danger because of its screening effect *471 upon the movement of small children across the lane. No other lane in Queen Anne's County had such barricades.
The garbage truck could pass through the barricades only by swinging them upon their hinges. The fire chief of the nearby Volunteer Fire Department testified that fire equipment consisting of an "aerial platform" and an "800 gallon pumper" went through the first two barricades "without much difficulty, the third one we did have to slow down and move the gate."[7] He doubted whether the tank wagon and the tractor trailer of the fire department "could get through that barn area * * * even without the gates there."
That the trial judge gave great weight to the testimony of Steven D. Peterson, an expert witness produced by Carroll, is apparent from this excerpt of the court's opinion:
*472 "The Court also places great weight and confidence in the testimony of Steven D. Peterson, a traffic engineer who qualified as an expert in the field, employed by the Carrolls to make a study of the right-of-way and recommend traffic control devices for the safety of those residing on the property and all who use the right-of-way.
"Mr. Peterson stated that Defendants were warranted in their fear of traffic accidents at two blind zigzag corners where traffic might go 25 m.p.h. if not slowed; and also there is a danger spot in the area of the machinery shed. This is a 3/10 mile straightway that traffic could approach at a high rate of speed unless controlled in some manner.
"Mr. Peterson recommended the traffic controls now in use and feels that they are proper to control the traffic in the areas considered dangerous on the right-of-way. He also recommended warnings to the public of the location of the barricades, as well as trimming of the shrubbery where it might obscure parts of the roadway for travelers.
"Mr. Peterson also stated that there had been no substantial number of accidents, but close calls; and that he estimated there were not over 100 vehicles a day on the property, around 30 in the farm building area, and around 5 to 7 go through and use the third barricade."
Although Baker v. Frick dealt with a case involving gates placed at the terminii of the right-of-way, we do not limit application of its rule to such cases. Indeed, in Frank v. Benesch, 74 Md. 58, 21 A. 550, where the Court approved modification along the course of the right-of-way by the owner of the servient estate, Baker v. Frick was cited with approval. Nor is there any doubt that the rule of Baker v. Frick continues viable. It was cited with approval in Simon Distributing Corp. v. Bay Ridge Civic Association, 207 Md. 472, 114 A.2d 829, and in Reddick v. Williams, 260 Md. 678, 273 A.2d 153, although the right of the servient estate to *473 modify the right-of-way was denied in both. It was denied in Simon because the proof did not even meet the threshold question the purpose of the grant itself implied a prohibition against gates. It was denied in Reddick because the installation of a gate interfered with the reasonable use of the right-of-way by the dominant estate.
In the subject case the trial judge, declaring that he was "impressed by the manner and seriousness with which Mr. Carroll * * * addressed himself to the dangerous traffic problem on the right-of-way" found that Carroll "has not done anything unreasonable in making an effort to control traffic on the right-of-way through his 266+- acre property, for the protection of those living there as well as others using the right-of-way," and "that the offset barricades are not an unreasonable interference with plaintiff's right of common use of the right-of-way for ingress and egress and are necessary for the safe and normal use of the right-of-way by defendants and others." Determination of those questions where the facts are in dispute, is a matter for the trier of facts. Baker v. Frick, supra, at 343; Gillett v. Van Horne, 36 S.W.2d 305 (1931 Tex. Civ. App.); Annotation, 52 A.L.R.3d 9, et seq. We cannot say that the conclusion of the trial judge is clearly erroneous as to barricades no. 1 and no. 2. Maryland Rule 1086.
Barricade no. 3, however, stands in a different legal position. The testimony is uncontroverted that in the movement of vehicles through the barriers forming this barricade, they are compelled to leave the established right-of-way. A right-of-way may not be relocated without the consent of the owners of both the dominant and servient estates. Millson v. Laughlin, 217 Md. 576, 588, 142 A.2d 810, 816.
We hold accordingly, that the appellant is entitled to an injunction requiring removal of barricade no. 3 in its present form unless barred by estoppel.
Estoppel
Carroll urges that in any event, Everdell is estopped by conduct from obtaining the relief he seeks. Conversations *474 and correspondence concerning the right-of-way had been carried on between Carroll and Everdell and their respective counsel. Initially they related to protests by Everdell because Carroll had installed, without prior agreement, two "bumps" in the area of the farm buildings. Everdell's objections were disregarded and additional "bumps" were installed by Carroll in the east-west section of the lane after notice to, but again without the consent of Everdell. The latter installation infuriated Everdell because of the severe jolting effect upon vehicles and their passengers upon approaching and leaving his dwelling. The "bumps" were scaled down following meetings between Carroll and Everdell, but even then were left at an elevation regarded as too high by Everdell. Everdell continued to protest. Meetings followed at which discussions were had concerning introduction of a new right-of-way to eliminate the need for the "bumps." As heretofore stated, Carroll did not press his appeal from the decree rejecting his claim that agreement upon a new right-of-way had been reached by the parties. It was during such meeting that experimentation with barricades was discussed. The trial judge said that he could not find that the parties had reached a meeting of the minds on an agreed location for barricades. We cannot say that his conclusion was clearly erroneous. Rule 1086.
J.F. Johnson Lumber Co. v. Magruder, 218 Md. 440, 147 A.2d 208; Vogler v. Geiss, 51 Md. 407; and Millson v. Laughlin, supra, all cited by the appellees on the estoppel issue, do not aid them. In Johnson, the Court declared at 448 [212] that the doctrine "* was educed to prevent the unconscientious and inequitable assertion of rights or enforcement of claims which might have existed or been enforceable, had not the conduct of a party, including his spoken and written words, his positive acts and his silence or negative omission to do anything, rendered it inequitable and unconscionable to allow the rights or claims to be asserted or enforced." Everdell's protests, early and late, negate estoppel. He had expressed willingness to negotiate, but this seems to have been followed only by unsatisfactory unilateral action presenting him with a fait accompli. In *475 Vogler, the Court reversed because evidence tending to show agreement to an easement change had been ruled inadmissible. That case offers no guide to our decision. In Millson, (589 [817]) the record showed that "[t]here was evidence from which the conclusion could be drawn that the defendant had abandoned the old road when she never used it after acquiescing in the construction of the new straighter road and had never protested the closing of the old road." All are patently distinguishable from the subject case. Here there was a mere agreement to experiment. We urge continuation of experimentation in efforts to reach agreement. We can find in this record, however, no action or inaction by Everdell such as operated to bar his right to claim relief in the subject litigation.
Reversed in part and affirmed in part and case remanded for issuance of an injunction as to barricade No. 3.
Costs to be divided.
*476
*477
NOTES
[1] Detailed description of the last mentioned right-of-way is omitted because it does not affect, save in a quite collateral way, the present dispute between the parties.
[2] By deed of even date, John Lee Carroll conveyed an undivided one-half interest in the tract to his wife, Cornelia T. Carroll. She was joined as a party defendant and is an appellee in this Court.
[3] The precise nature of the proceedings is obscure, the opinion stating at page 338: "The case was docketed by consent, and all errors of pleadings and questions of jurisdiction were waived by agreement."
[4] The fully described right-of-way leading from the last mentioned farm lane to the Everdell residence has undergone no change. It thus plays no part in this aspect of the litigation. It does bear collaterally upon an alleged estoppel urged by Carroll. This will be discussed infra.
[5] Attached hereto in Appendix.
[6] Attached hereto in Appendix.
[7] The record shows the following testimony concerning barricade 3 as it existed at the time of trial:
"`Mr. Carroll has just modified the final set of barricades by swinging them on posts and hinges so that they swing very freely. Each of these gates is held in place in the roadway by a short piece of three-eighths inch copper tubing inserted through a staple on the gate into a pipe socket in the ground. It would take hardly any force to break any such tubing. Therefore, Mr. Carroll wanted me to notify you that the fire truck should just bump the gate open without any need to stop and lift it aside as formerly.'
Q. Now, assuming the description in my letter is accurate in this final modification this would mean, would it not, that your equipment could go all the way to Mr. Everdell's house without having to stop, is that right?
A. That is correct."
The trial court then inquired:
"THE COURT: What would be the effect of a snow on this Mr. Starkey?
THE WITNESS: I would say we would have to stop and open them up if it was any amount at all.
THE COURT: In the meantime, the Everdell's house could burn down?
THE WITNESS: If we couldn't get there, this is true, right."
The ancient manor house on the land had been destroyed by fire in 1970 during the ownership of Miles.
There was other evidence that it was the imposed duty of a tenant farmer engaged by both Carroll and Everdell, to keep the lane clear of snow and that the barriers furnished no impediment to its removal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263718/ | 336 A.2d 219 (1975)
Charles R. ROCK and Joan M. Rock, Defendants below, Appellants,
v.
Clifford Stanley SHORT, Sr., and Mildred R. Short, Plaintiffs below, Appellees.
Supreme Court of Delaware.
Argued February 14, 1975.
Decided March 6, 1975.
Harold Schmittinger and I. Barry Guerke, Schmittinger & Rodriguez, Dover, for defendants below, appellants.
James H. Hughes, III, Dover, for plaintiffs below, appellees.
Before HERRMANN, C. J., and DUFFY and McNEILLY, JJ.
*220 DUFFY, Justice:
This appeal from the Superior Court puts in issue the effect of 10 Del.C. § 3912 on provisions in a bond and mortgage assessing counsel fees of five percent upon judgment for the mortgagees.
I
On December 27, 1973 the mortgagees filed a praecipe and a copy of the bond with the Prothonotary and the mortgagors were notified that judgment would be confessed against them on January 18, 1974 (under a warrant of attorney given in the bond). Four days prior to the latter date the mortgagors sold the property and on January 16, 1974 tendered the principal amount due with accrued interest.
The bond contained a provision for counsel fees, as follows:
"... [I]t is hereby expressly provided and agreed that if any action, suit, matter or proceeding be brought for the enforcement of this bond and if the plaintiffs or the lien holders in said action, suit or proceeding shall recover judgment in any sum, such plaintiffs or lien holders shall also recover as reasonable counsel fees five per centum of the amount decreed for principal and interest, which said counsel fees shall be entered, allowed and paid as a part of the decree or judgment in said action, suit or proceeding."
Defendants objected to the reasonableness of a five percent fee, arguing that there had been no levy, execution or public sale; but, relying on our opinion in Clark v. Equitable Life Assurance Society, Del.Supr., 316 A.2d 554 (1974), the Court entered judgment for counsel fees at the five percent rate in the amount of $1,222.
II
10 Del.C. § 3912 provides in pertinent part:
"In all causes of action, ... brought for the enforcement of any note, bond, mechanics lien, mortgage, or other *221 instrument of writing, if the plaintiff... recovers judgment in any sum, he may also recover reasonable counsel fees, which shall be entered as a part of the judgment in the action, .... Such counsel fees shall not in any such action, ... exceed five per cent of the amount adjudged for principal and interest. Such counsel fees shall not be entered as a part of such judgment unless the note, bond, mortgage, or other instrument of writing sued upon, by the terms thereof, expressly provides for the payment and allowance thereof ..."
In Clark we held that the statute violated neither public policy nor the Equal Protection Clause. The case did not involve any issue as to reasonableness of fees nor the proper procedure under a § 3912 agreement. In short, Clark does not control this action.
The statute permits recovery of counsel fees but, we emphasize, only those which are "reasonable." The five percent authorized by § 3912 is a maximum not a routine amount and certainly not a minimum. When an agreement is made, obviously the extent and expense of collection efforts are unknown. The statute contemplates that the debtor may be called upon to assume such expenses as long as they are "reasonable" and do not exceed five percent.
This is the construction of the statute which was stated years ago by the Superior Court in Petitions of Warrington, Del.Super., 179 A. 505 (1935) and we approve it. In Warrington Chief Justice Layton found that a fee of five percent specified in a judgment note was unreasonable under the circumstances and ordered it reduced from $370 to $50. Warrington makes clear that mere inclusion of a specified percentage upon default in an instrument does not give creditors the license to "... constitute themselves the judges of the reasonableness of the counsel fee provided for in the obligation." Rather, the reasonableness of fees, when properly put in issue, is for "... the judgment of the court upon the facts and in the circumstances proved."[*] We endorse that principle and the rule of procedure stated perceptively by the Chief Justice:
"Prima facie, the counsel fee agreed upon by the parties to an obligation will be regarded as reasonable, but subject, nevertheless, to the control of the court which, upon proper objection and showing, will permit only the payment of a reasonable sum measured by the facts and circumstances."
Compare Great American Indemnity Co. v. State, Del.Supr., 32 Del.Ch. 562, 88 A.2d 426 (1952). See also In re Ebert, D.Del., 140 F.Supp. 597 (1956).
This view of the statute aligns Delaware with those jurisdictions which hold that the reasonableness of a stipulated attorney's fee is a matter of affirmative defense. See Annot. 18 A.L.R.3d 733. An agreed-on fee within the statutory limit is thus presumed to be reasonable; a defendant has the burden of rebutting that presumption and is entitled to an evidentiary hearing for that purpose.
Since the mortgagors did not have a hearing, it follows that the judgment must be reversed under a mandate for further proceedings not inconsistent herewith.
NOTES
[*] The Court found this to be the clear legislative purpose of Rev.Code 1915 § 4204, which is the predecessor to 10 Del.C. § 3912 and substantially identical to it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338709/ | 204 Ga. App. 432 (1992)
419 S.E.2d 522
BANK SOUTH, N.A.
v.
ROSWELL JEEP EAGLE, INC.; and vice versa.
A92A0266, A92A0267.
Court of Appeals of Georgia.
Decided June 3, 1992.
Kilpatrick & Cody, Thomas C. Harney, Timothy H. Kratz, for appellant.
John C. Bach, Robert J. Hulsey, for appellee.
CARLEY, Presiding Judge.
Over a period of several weeks, appellee-plaintiff Roswell Jeep Eagle, Inc. (RJE) sold five used cars to Heritage Auto Leasing, Inc. and accepted as payment therefor five documentary drafts. These documentary drafts were deposited with RJE's bank and forwarded to appellee-defendant Bank South (Bank) for payment, but they were eventually returned for insufficient funds. Thereafter, RJE brought suit in several counts, seeking to recover for the Bank's alleged mishandling of the five documentary drafts. The case was tried before a jury and a verdict in favor of RJE was returned. In Case No. A92A0266, the Bank appeals from the judgment entered on the jury's verdict and, in Case No. A92A0267, RJE cross-appeals.
Case No. A92A0266
1. Pursuant to OCGA § 11-4-302 (a), a payor bank, such as the Bank in the instant case, may be liable if it fails to pay, return or give notice of the dishonor of a demand item, other than a documentary draft, by "its midnight deadline." However, the five "items" at issue in the instant case are "documentary drafts" as defined in OCGA § 11-4-104 (1) (f). Accordingly, the Bank's potential liability for its handling of the five documentary drafts must be determined under OCGA § 11-4-302 (b). That statute provides that a payor bank must act "within the time allowed for acceptance or payment of [a properly payable] item." Thus, if the documentary drafts were "properly payable," the Bank was not required to act by "its midnight deadline" under OCGA § 11-4-302 (a), but was required to act "within the time allowed" under OCGA § 11-4-302 (b).
The "time allowed" for a payor bank to accept or pay a "properly payable" documentary draft that has been presented to it under a letter of credit is as provided in OCGA § 11-5-112 (1). However, the five documentary drafts at issue in the instant case were not presented to the Bank under a letter of credit. OCGA § 11-5-112 (1) does not, therefore, establish the "time allowed for acceptance or payment" by the Bank.
"Presumably the time allowed [a payor bank to act with regard to documentary drafts not presented under a letter of credit] could be specified, but more likely it is to be found in the practice and behavior *433 of the parties to the transaction or the persons in the trade." 1 White & Summers, Uniform Commercial Code, § 17-6, p. 856 (3d ed. 1988). In the instant case, there was no definite specification of "the time allowed" for the Bank to act on the five documentary drafts presented to it for payment. Compare Union Bank of Benton v. First Nat. Bank in Mt. Pleasant, 621 F2d 790, 796 [10] (5th Cir. 1980). The only specification was to the effect that the documentary drafts presented to the Bank were "sight drafts." At most, this denominates the documentary drafts as being "demand" items. As previously noted, however, where a demand item is also a documentary draft, the payor bank need not comply with the midnight deadline that is established for other demand items by OCGA § 11-4-302 (a). Accordingly, the mere denomination of a documentary draft as a "sight draft" would not otherwise serve to establish any definite "time allowed" for the payor bank to act pursuant to OCGA § 11-4-302 (b). "It is clear that the `midnight deadline' applicable to the handling of checks and other demand items is not applicable to the handling of documentary drafts. Banking institutions are permitted a reasonable or `seasonable' time within which to present, remit or return. [Cit.]" Memphis Aero Corp. v. First American Nat. Bank, 647 SW2d 219, 224 [4] (Tenn. 1983) (wherein documentary drafts were denominated merely as "sight drafts").
It follows that the trial court erred in giving the following charge: "Instruments payable on demand include those payable at sight or on presentation and those in which no time [for] payment is stated. If you find that the drafts in this case were not sight drafts, then the payor bank must pay or return the instrument within a reasonable time or a seasonable time." (Emphasis supplied.) This charge, in effect, erroneously instructed the jury that the bank was entitled to a reasonable or seasonable time within which to act only if the documentary drafts were not sight drafts. In truth, the bank was entitled to a reasonable or seasonable time within which to act notwithstanding that it had been presented sight documentary drafts for payment. See Memphis Aero Corp. v. First American Nat. Bank, supra at 224 [4].
2. The refusal to give the following request to charge is enumerated as error: "Under the Uniform Commercial Code, [the Bank] is not accountable for the amount of any of [RJE's] drafts unless you find that the drafts were presented to [the Bank] and that the drafts were properly payable. If you find that the drafts were presented and were properly payable, [the Bank] still is not accountable for the amount of any of the drafts unless you also find that [the Bank] did not act on the drafts within a reasonable time. A reasonable time is determined by the nature of the instrument, any usage of banking or trade, and the facts of the particular case."
*434 This request constitutes an accurate statement of the applicable law. A payor bank "has liability under [OCGA § 11-4-302] (b) only for [documentary drafts that are] `properly payable.' [A documentary draft] is not properly payable unless there are sufficient funds in the account to pay it.... [Also the] payor bank may hold [a documentary draft] for `the time allowed.' [Where, as here, there is no definite specification as to the "time allowed,"] [t]hat time may be quite long." 1 White & Summers, Uniform Commercial Code, § 17-6, pp. 856-857 (3d ed. 1988). The charge as given by the trial court did not otherwise instruct the jury on these accurate and applicable legal principles. It follows that the trial court erred in refusing to give it.
3. Of the five documentary drafts in the series, the last two had been returned for insufficient funds almost immediately after presentment to the Bank. RJE does not contend that these last two documentary drafts were not otherwise returned by the Bank "within the time allowed." Instead, RJE urges that its recovery under OCGA § 11-4-302 (b) for the last two documentary drafts would be authorized under an estoppel theory. According to RJE, the Bank is estopped to deny liability on the last two documentary drafts because it did not comply with OCGA § 11-4-302 (b) as to the first three.
Liability under OCGA § 11-4-302 (b) "is not liability on the document itself but is liability for the mishandling (delay in giving notice or return) of the item." (Emphasis omitted.) Memphis Aero Corp. v. First American Nat. Bank, supra at 222. Accordingly, if the Bank did not "mishandle" the last two of the five documentary drafts, it incurs no liability thereon pursuant to OCGA § 11-4-302 (b). See generally Pennsylvania Nat. Turf Club v. Bank of West Jersey, 385 A2d 932, 935 [2] (N.J. Sup. Ct. App. Div. 1978). It follows that the trial court erred in denying the Bank's motion for a directed verdict as to its non-liability under OCGA § 11-4-302 (b) for the last two documentary drafts. "Although a party can by estoppel waive a defense, it cannot create a right of action in another party. [Cit.]" Southern R. Co. v. A. O. Smith Corp., 134 Ga. App. 219, 222 (3) (213 SE2d 903) (1975). RJE has no independent right of action under OCGA § 11-4-302 (b) for the "mishandling" of the last two documentary drafts and estoppel cannot be relied upon to create one.
4. There appears to be no jury issue as to whether the five documentary drafts were "presented" to the Bank for payment, the only dispute being whether the Bank acted thereon within the "time allowed" after presentment. Accordingly, although it would not have been error to give the Bank's requested charge on "presentment," it was not reversible error to fail to give that charge.
5. As an alternative theory of the Bank's liability, RJE relied upon OCGA § 11-3-419 (1) (a, b), which provides: "An instrument is converted when: A drawee to whom it is delivered for acceptance refuses *435 to return it on demand; or [a]ny person to whom it is delivered for payment refuses on demand either to pay or to return it... " The trial court's denial of the Bank's motion for a directed verdict as to its non-liability under this conversion theory is enumerated as error.
"The detention of an instrument voluntarily delivered is not wrongful unless and until there is demand for its return. Demand for a return at a particular time may, however, be made at the time of delivery; or it may be implied under the circumstances or understood as a matter of custom.... `Refuses' is meant to cover any intentional failure to return the instrument, including its intentional destruction. It does not cover a negligent loss or destruction, or any other unintentional failure to return." 6 Anderson, Uniform Commercial Code, § 3-419:1 (2), p. 418 (3d ed. 1984).
No explicit or implicit demand for the return of the documentary drafts by any particular time was made at the time of their delivery to the Bank. Compare New Ulm State Bank v. Brown, 558 SW2d 20, 24 [1] (Tex. Civ. App. 1977) (specific instruction not to hold the item after maturity or for the convenience of the payor). The only specification here was the denomination of the documentary drafts as "sight drafts." Standing alone, this might be sufficient to classify the documentary drafts as "demand" items pursuant to OCGA § 11-3-108. Because the five demand items were also documentary drafts, however, the Bank was specifically authorized pursuant to OCGA § 11-4-302 (b) to accept, pay or return them within a reasonable or seasonable time rather than required to do so within the time limit generally applicable to other demand items. Memphis Aero Corp. v. First American Nat. Bank, supra at 224 [4]. It is OCGA § 11-4-302 (b), not OCGA § 11-3-108, which governs as to the "time allowed" the Bank for responding to the original presentment of the documentary drafts to it for payment. OCGA § 11-4-102 (1). Accordingly, an otherwise untimely failure on the part of the Bank to accept, pay or return the documentary drafts pursuant to their original specification merely as "sight drafts" may be actionable as a failure to comply with OCGA § 11-4-302 (b), but could not constitute an intentional "refusal" to comply with a demand for payment or return so as to be actionable as a conversion under OCGA § 11-3-419. Compare New Ulm State Bank v. Brown, supra at 24 [1].
It is undisputed that, when subsequent inquiry was made as to why the documentary drafts had yet to be paid or returned, the Bank responded by returning them for insufficient funds. Thus, in response to the first demand for payment or return that was ever made after the original presentment of the documentary drafts for payment, the Bank returned them. In so doing, the Bank may have acted untimely and incurred liability under OCGA § 11-4-302 (b), but it did not incur *436 liability under OCGA § 11-3-419 for conversion of the documentary drafts. It follows that the trial court erred in denying the Bank's motion for a directed verdict as to its non-liability under a conversion theory.
6. RJE had no direct dealings whatsoever with the Bank and was not its customer. Compare First Ga. Bank v. Webster, 168 Ga. App. 307, 308 (1) (308 SE2d 579) (1983). The Bank was merely the payor bank as to documentary drafts which had been made payable to RJE. OCGA § 11-4-101 et seq. constitutes a comprehensive compilation of the legal duties imposed upon the Bank as to items presented to it for collection in its capacity as the payor bank. "Action or inaction approved by [OCGA § 11-4-101 et seq.] ... constitutes the exercise of ordinary care and, in the absence of special instructions, action or nonaction consistent with clearing-house rules and the like or with a general banking usage not disapproved by [OCGA § 11-4-101 et seq.], prima facie constitutes the exercise of ordinary care." OCGA § 11-4-103 (3). Accordingly, if the Bank violated OCGA § 11-4-302 (b), it violated the applicable standard of ordinary care for a payor bank and would be liable to RJE. Conversely, if it complied with OCGA § 11-4-302 (b), it complied with the applicable standard of ordinary care for a payor bank and would not be liable to RJE. It follows that the trial court erred in denying the Bank's motion for a directed verdict as to its non-liability under a common law negligence theory. "[W]here[, as here,] the [Uniform Commercial] Code provides a comprehensive remedy for parties to a transaction, a common law action would be barred. [Cit.]" First Ga. Bank v. Webster, supra at 308 (1). See also Brannon v. First Nat. Bank of Atlanta, 137 Ga. App. 275, 278 (3) (223 SE2d 473) (1976).
7. There is no evidence which would authorize a finding of the Bank's liability for punitive damages or attorney's fees. Accordingly, assuming without deciding that punitive damages and attorney's fees can ever be recovered in an action against a payor bank predicated upon an alleged violation of OCGA § 11-4-302, the trial court erred in failing to grant the Bank's motion for a directed verdict as to its non-liability for those elements of damage in the instant case.
8. The judgment is reversed with direction that the trial court enter judgment in accordance with the Bank's motions for a directed verdict and that a new trial be conducted as to the limited issue of the Bank's liability under OCGA § 11-4-302 (b) for the face amount of the first three documentary drafts.
Case No. A92A0267
9. RJE's enumerations have been considered and found to be without merit or moot.
*437 Judgment in Case No. A92A0266 reversed with direction. Judgment in Case No. A92A0267 affirmed. Pope and Johnson, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338647/ | 199 Va. 273 (1957)
PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY
v.
ALICE KEGLEY.
Record No. 4699.
Supreme Court of Virginia.
September 6, 1957.
J. L. Camblos, for the plaintiff in error.
R. C. Shannon, for the defendant in error, submitted on brief.
Present, All the Justices.
Defendant insurer had issued a policy of group life insurance to the company which employed plaintiff's hasband and as of February 1, 1953, issued to him a certificate of coverage under this policy. The group policy provided for termination of coverage upon termination of employment but gave the employee the right to take out a policy without medical examination within thirty-one days after termination of employment, said policy to become effective at the end of this thirty-one day period. Insured's employment was terminated on October 2, 1954; he applied for and obtained a policy whose stated effective date was November 2, 1954, naming plaintiff as beneficiary; and committed suicide in April, 1955. The policy limited the company's liability to return of premiums if suicide occurred within two years from its effective date. Plaintiff sued for the face amount. Under the circumstances and the terms of the policy there was no merit to plaintiff's contention that the new policy was but a continuation of the group insurance and the true effective date therefore was November 1, 1953. The suit was upon a new and different policy and its provisions as to suicide would be given effect.
Error to a judgment of the Circuit Court of Wise county. Hon. George Morton, judge presiding. The opinion states the case.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
Alice Kegley brought this action to recover on a life insurance *274 policy, in which she was the beneficiary, issued to her husband, Claude Kegley, by the defendant, Provident Life and Accident Insurance Company. The company denied liability beyond the total of the premiums paid for the policy on the ground that the insured had committed suicide and a clause in the policy limited its liability in that event to the amount of the premiums. The case was submitted to the court for decision without a jury on an agreed statement of facts. The court found for the plaintiff and entered judgment against the defendant for $1,000, the amount of the policy, and the defendant has appealed.
Prior to February 1, 1953, the defendant issued its group life policy and its group accident and disability policy to Stonega Coke & Coal Company for the benefit of its employees. Claude Kegley was an employee of that company. On February 1, 1953, the defendant issued to Claude Kegley a certificate stating that he was insured for the benefits described therein, including life insurance in the sum of $1,000, subject to the terms and conditions of the group policies, and naming his wife, Alice Kegley, as beneficiary.
These group policies (which are not in evidence) provided, as set forth in this certificate, that the insurance thereunder with respect to the employee would terminate, inter alia, when active employment of the employee with the employer terminated. The policies and the certificate also contained this provision:
"Conversion -- Upon termination of insurance under the group policy, because of termination of employment with the Employer, any Employee shall be entitled to have issued by the Insurance Company, without medical examination, a policy of life insurance in any one of the forms customarily issued by the Insurance Company, except term insurance, upon written application made to the Home Office of the Insurance Company within thirty-one days after the termination of employment and upon payment of the premium applicable to the class of risk to which the Employee belongs and to the form and amount of policy at the Employee's then attained age. Any individual policy issued in accordance with this provision shall become effective at the expiration of the thirty-one day period during which the Employee was entitled to make application for the individual policy. The amount of the individual policy shall not exceed the amount of the Employee's life insurance in force at the beginning of such thirty-one day period."
The group policies, as the certificate stated, further provided that *275 if an employee died during the thirty-one day period the insurance company would pay his beneficiary the amount of his life insurance in force at the beginning of that period, whether or not the individual policy had been applied for or the first premium paid.
Claude Kegley's employment with Stonega Coke & Coal Company terminated on October 2, 1954. Under the conversion provision above quoted he applied to the insurance company for a $1,000 life policy and pursuant thereto the company issued to him its policy No. 193335, agreeing to pay the maturity value thereof to the insured on the maturity date if the insured was then living and all premiums had been paid, or to pay the face amount to the beneficiary upon proof of the death of the insured while the policy was in force. Alice Kegley, the wife of the insured, was named the beneficiary of this policy and its effective date was November 2, 1954. It contained this clause:
"If the Insured shall die as a result of suicide, whether sane or insane, within two years from the Effective Date of this policy, the amount of insurance payable shall be limited to the premiums paid in cash for this contract." See Code, | 38.1-437.
Claude Kegley committed suicide on April 23, 1955, less than six months from the effective date of the policy. The plaintiff brought this action on this policy No. 193335, and it is stipulated that if the suicide provision does not bar her recovery she is entitled to the full sum of $1,000. The defendant tendered to her the sum of $29.52 as the amount due under the policy, being the total of the premiums paid thereon in cash.
It is the contention of the plaintiff that the policy sued on was not a new contract but merely a continuation of the insurance provided for by the group policies and certificate, and hence that the two-year period with respect to suicide should be reckoned from the date of the certificate, February 1, 1953, and not from the date of the policy sued on, November 2, 1954. She relies on Philadelphia Life Ins. Co. Erwin, 165 Va. 469, 182 S.E. 209, to support that contention.
The facts of the present case clearly distinguish it from the Erwin case and from the cases cited in support of that decision. See Neilsen General American Life Ins. Co., 89 F.2d 90, 110 A.L.R. 1133.
In the Erwin case the insurance company had issued to Erwin a five-year term policy with disability benefits, dated January 20, 1927. On October 1, 1931, while this policy was in force, Erwin became *276 totally disabled. In December, 1931, he applied for the disability benefits to the company's agent and requested that the term policy be converted at its expiration to an ordinary life policy with disability benefits. The agent advised him to wait until the new policy was issued before putting in his claim for disability. Accordingly the 1927 policy was exchanged for an ordinary life policy, dated January 20, 1932, issued on the application for the 1927 policy, on the same medical examination and bearing the same number, which application formed a part of the new policy. The new policy covered only disability occurring after its date.
Erwin sued for his disability, filing with his motion for judgment the 1932 policy which he alleged had been issued to him on his surrender of the 1927 policy, which was in force when he was totally disabled.
The company contended that the plaintiff's action was based entirely on the 1932 policy, under which it was not liable for the disability which occurred prior to its date. Erwin contended that his disability occurred while the 1927 policy was in force, that he had simply exchanged that policy for the 1932 policy and the latter was but a continuation of the 1927 policy.
The court held, two Justices, including the present Chief Justice, dissenting, that the plaintiff had substantially alleged that his disability had occurred under the 1927 policy; that the evidence was amply sufficient to show that the new policy was but a continuation of the old and not a separate and independent contract, and that since the only defense offered was based on the technical ground that the plaintiff declared on the 1932 policy alone, which the record did not sustain, the judgment for the plaintiff should be affirmed.
The facts in the present case are materially different. There was no contention here that this was a suit on the group policies. It was based explicitly on the new policy alone. There was no exchange of policies here. The group insurance pursuant to which the certificate of February 1, 1953, was issued to Kegley had completely terminated as to him on October 2, 1954, the date when his employment with the coal company terminated. Collins Metropolitan Life Ins. Co., 163 Va. 833, 178 S.E. 40; Duval Metropolitan Life Ins. Co., 82 N.H. 543, 136 A. 400, 50 A.L.R. 1276. He then had only the right to convert his death benefit under the group policies to an individual policy as provided by the conversion clause above quoted. Thereupon, according to the terms of the group *277 policies and the certificate, he was entitled to have issued to him without medical examination a policy in one of the forms customarily issued by the company, except term insurance, upon application made with thirty-one days after termination of his employment and upon payment of the premium applicable to his class of risk and to the form and amount of the policy at his then attained age, and to become effective at the expiration of the 31-day period during which he was entitled to make the application.
By a written application dated November 30, 1954, attached to the new policy, Kegley applied for "the conversion of my death benefit under the Group Policy described below to an individual Life Policy on the Endowment at 85 Plan, or on the Select Risk Ordinary Life Plan if I am eligible." The number of the group life policy, the number of his certificate and the amount of $4.25 paid therefor were stated. The date of this application was in fact 59 days after the termination of his employment but pursuant thereto the company issued the policy sued on, which is a life policy in the sum of $1,000 on the endowment at 85 plan, as applied for, the effective date of which was November 2, 1954, and which contained the suicide provision above quoted. The premium rate was $14.76 quarterly.
A clause in this policy also provided: "This policy has been issued in consideration of the application, a copy of which is attached to and made a part of this policy, and of the payment of premiums as provided herein. This policy and the application for it constitute the entire contract. * * *."
By no valid method may this policy be construed as a continuation of the group policies and the certificate of February 1, 1953, which provided for life insurance, accidental dismemberment and disability benefits as well as family funeral benefits only during the time that the insured continued in the employment of the coal company. As stated, his employment terminated and the insurance under the group policies terminated at the same time. Within thirty-one days after that termination date he could, if he wished, apply for and have issued to him, without medical examination, a new policy in any one of the forms customarily issued by the company, upon payment of the applicable premium. On his application there was issued to him the type of policy for which he applied, for which he paid a different rate of premium, which contained different terms and which covered only one of the risks embraced in the group policies. This was a new and different contract and it must be construed according *278 to its terms. "'* * * They are plain and clear and we are bound to adhere to them as the only authentic expression of the intention of the parties.'" Collins Metropolitan Life Ins. Co., supra, 163 Va. at 839, 178 S.E. at 43.
In Gans Aetna Life Ins. Co., 214 N.Y. 326, 329, 108 N.E. 443, the company issued a term policy dated April 5, 1907, insuring the life of the insured for five years and no longer except "* * * (b) upon any anniversary of its date it might 'be exchanged without medical re-examination for a new policy upon any plan then in use by said company on payment of the premium required for such new policy for the insuring age then attained by the insured,' * * *." On April 3, 1912, the insured made under the quoted option a written application to the company for a new policy and therein agreed that the statements and answers in the application for the term policy should be the basis for the new policy, except that the kind of policy, the amount and the premium should be as specified. In accord with the application a policy was issued dated April 5, 1912, and providing, as did the term policy of 1907, that if the insured committed suicide within a year from its date, which he did, the policy would be void. It was contended by the beneficiary of the 1912 policy, that the two policies formed a single contract and hence the suicide clause was inoperative because the suicide was not within one year after the date of the first policy. Holding to the contrary, the court said:
"The intent of the insured and the company existing April 5, 1912, as expressed, binds and obligates both of the parties. Presumptively, their intent is expressed by the natural and ordinary meaning of their language referable to it and such meaning cannot be perverted or destroyed by the courts through construction. Where the parties by their words have left no fair reason for doubt, there is no just or defensible excuse for construction. * * *." 214 N.Y. at 330, 108 N.E. at 444.
In Lineberry Security Life & Trust Co., 238 N.C. 264, 77 S.E.2d 652, the facts were quite similar to those of the case in judgment. The insurance company on July 31, 1944, issued a group policy insuring the lives of a mill company's employees, one of whom was Dr. Lineberry, and issued to him a certificate, both providing that the insurance terminated at the end of the month in which the employment terminated and containing a conversion provision to the same effect as the one above quoted. The group policy also contained a one-year incontestable clause but no suicide clause. Dr. Lineberry *279 terminated his employment and on his application there was issued to him an ordinary life policy dated July 28, 1948, containing a clause that if he committed suicide within two years of that date, the limit of recovery would be the premiums paid; and also a clause that the policy and the application constituted the entire contract. Dr. Lineberry committed suicide on June 30, 1950, and the question presented was whether the group policy and certificate and the policy of July 28, 1948, constituted a sigle contract so that the one-year incontestability clause of the group policy nullified the suicide clause in the 1948 policy.
The court held that the conversion provision merely granted the insured the right, at his option, to convert his certificate into a separate and independent contract of insurance, without medical examination, and for the premium applicable to his then attained age, and that when the three instruments -- the group policy, the certificate and the new policy -- were considered in the light of settled rules of construction, it was clear that the insurance policy sued on was a separate, distinct and independent contract, unmodified in any respect by the group policy or the certificate. "The language used by the parties is unambiguous. Its meaning is clear. There is no room for judicial construction. As the parties contracted, so are they bound. * * * 'It is there in plain English.' * * *." 238 N.C. at 269, 77 S.E.2d at 655-6.
It was likewise plainly written in the policy on which this suit is based that if the insured committed suicide within two years from the effective date of that policy, which was November 2, 1954, the amount of insurance under the policy was limited to the premiums. This is clear language. There is no ambiguity, and we cannot use the office of construction to make for the parties a contract different from the one they made for themselves. The judgment here can be for no more than the parties agreed the defendant should pay, being the total of the premiums, which sum it has tendered to the plaintiff.
Reversed and final judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265149/ | 262 N.J. Super. 23 (1993)
619 A.2d 1024
PERFORMANCE LEASING CORP., PLAINTIFF-RESPONDENT,
v.
IRWIN LINCOLN-MERCURY, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued November 30, 1992.
Decided February 2, 1993.
*24 Before Judges PETRELLA, LONG and D'ANNUNZIO.
Scott J. Basen argued the cause for appellant (Mehr & LaFrance, attorneys).
Douglas M. Calhoun argued the cause for respondent (Calhoun & Brady, attorneys).
The opinion of the court was delivered by LONG, J.A.D.
Defendant, Irwin Lincoln-Mercury, appeals from a judgment entered upon a jury verdict in favor of plaintiff, Performance Leasing Corp., in connection with the complaint plaintiff filed against defendant alleging, among other things, breach of contract, violation of the Consumer Fraud Act (N.J.S.A. 56:8-1 to -60), common law fraud and tortious interference with prospective economic advantage. Specifically, defendant contends that the trial judge erred in denying its motion for a new trial because the verdict was against the weight of the evidence; that the trial judge abused her discretion in awarding prejudgment interest; and that she erred in awarding counsel fees under the Consumer Fraud Act. We have carefully reviewed this record in light of these contentions and have concluded that an affirmance is in order.
I
Performance Leasing Corporation (plaintiff) is an automobile leasing company. Irwin Lincoln-Mercury, Inc. (defendant) is an automobile dealership. In 1987, plaintiff entered into a lease with a customer, Coated Sales, Inc., for a 1988 Lincoln Continental, *25 Signature Series with certain specified options. In December, 1987, plaintiff and defendant entered into an agreement under which plaintiff was to buy a new 1988 Lincoln Continental, Signature Series from defendant for $26,900 under a fleet-user arrangement with Ford Motor Company. This permitted plaintiff (a fleet-user) to buy a Ford automobile from a Ford franchise dealership (such as defendant) for $100 over the wholesale price charged by Ford to the dealership. In May, 1988, when Ford delivered the automobile to defendant, defendant refused to deliver it to plaintiff for the agreed-upon sale price.
Defendant claimed that plaintiff had only ordered a base-model 1988 Lincoln Continental, not the up-graded (and higher-priced) Signature Series. Before it would deliver the automobile to plaintiff, defendant demanded a sum in addition to the contract price. Plaintiff refused and, after settlement negotiations broke down, defendant sold the car to a retail buyer for $30,328.00. Plaintiff then filed this action. A jury found that the contract between the parties was as plaintiff had claimed and awarded plaintiff $12,500 in compensatory damages.
Plaintiff moved for an award of prejudgment interest and submitted a certification in support of counsel fees. Defendant opposed both applications and moved for a new trial, challenging the damage award but not the underlying liability finding. Although the record is silent on that issue, the trial judge apparently rejected defendant's new trial motion. On May 17, 1991, she entered an "order for judgment" against defendant "for the sum of $12,500.00, plus prejudgment interest in the sum of $2,587.33, plus attorneys fees in the sum of $6,000.00, plus costs of suit." Although defendant's notice of appeal indicates that it is from the judgment of May 17, 1991, because the motion for a new trial never addressed the underlying liability issue, (and as defendant conceded at oral argument) that issue is not cognizable on this appeal. R. 2:10-1. Battista v. Olson, 213 N.J. Super. 137, 516 A.2d 1117 (App.Div. 1986). *26 Thus, this appeal is limited to damages, prejudgment interest and counsel fees.
II
We turn first to defendant's challenge to the damages award. The facts adduced at trial relevant to this issue are as follows: Bruce Blum testified that he was plaintiff's president and also the executive vice-president of Performance B.M.W. According to Blum, Performance Leasing Corp. and Performance B.M.W. were affiliated corporations, in that they did business as a B.M.W. dealership together with a leasing company. Blum stated that, before plaintiff entered into its sale contract with defendant, it had entered into a "lease" with Coated for a 1988 Lincoln Continental (Signature Series) with certain additional options. Based upon plaintiff's purchase price of dealer's cost plus $100 (i.e., about $26,900), plaintiff contracted with Coated for a 48-month lease which, over the 48-month period, would yield plaintiff an anticipated profit of about $3,000.00.
Blum also indicated that, "at the end of the [48-month] lease," plaintiff anticipated the car would be worth $3,500 more than was owed to the bank which meant an additional profit of about $3,500 to plaintiff on the lease. In other words, Blum indicated that it anticipated earning a total profit of about $6,500 had the 48-month lease gone to completion.
Blum went on to testify that, after plaintiff's sales agreement with defendant "blew up" in May, 1988, plaintiff was not able to purchase the specified automobile with the options required by Coated from another Ford dealer because, in May, 1988, this was a "hot" car (i.e., a very desirable car at the time). In addition, no other Ford dealer would sell such a car (even if it had one in its then-present stock) at a fleet-user purchase price for immediate delivery. In other words, to purchase the same type of car that defendant was supposed to sell to plaintiff in May, 1988 for about $26,900, plaintiff would have *27 had to place another fleet-user purchase order with a different Ford dealer and then wait another five months for delivery.
Plaintiff searched for alternatives to satisfy Coated and, finally, persuaded Coated to accept a comparable substitute vehicle (a luxury car with the options Coated specified) which was a 1988 B.M.W. 735. According to Blum, in May, 1988, the demand for a 1988 B.M.W. 735 was also large and this model was in relatively short supply. Also, unlike Ford, B.M.W. had no fleet-user sale program and, as a result, plaintiff could not buy a 1988 B.M.W. 735 on any kind of a wholesale basis.
Therefore, plaintiff purchased a 1988 B.M.W. 735 from its affiliated corporation (Performance B.M.W.) for about $48,000, which was about $3,000 over the dealer cost to Performance B.M.W. of about $45,000. According to Blum, the prevailing retail price for a 1988 B.M.W. 735 was about $54,000. Thus, Blum indicated that, if Performance B.M.W. had sold the car to a retail customer instead of to plaintiff, Performance B.M.W. would have sold it for the prevailing market price which was about $54,000.
After purchasing the 1988 B.M.W. 735 from Performance B.M.W., plaintiff leased it to Coated under a 48-month lease. Blum testified that a profit of about $3,000 was built into that lease, but that, "in order to make the monthly [lease] payments come into line with what the Lincoln [lease] was," plaintiff "had to estimate ... the residual value" of the used B.M.W. "at the end of the lease" at an amount about $4,000 "more than what those estimates were." In other words, while the B.M.W. lease, on paper in May, 1988, had a built-in "profitability" of about $3,000 to plaintiff, it also carried the "potential to lose $4,000 at the end of that [48-month] lease." Therefore, instead of a profit of about $3,000 on the B.M.W. lease, plaintiff anticipated incurring a net loss of about $1,000 "over the whole term of the lease counting the residual value." Finally, Blum was asked about the effect of plaintiff's lease of the 1988 B.M.W. 735 to Coated upon Performance B.M.W. Blum replied that, by selling *28 the B.M.W. to plaintiff in May, 1988 for about $48,000, Performance B.M.W. was left with one less B.M.W. 735 which it could have sold to a retail customer for about $54,000. In other words, in 1988, Performance B.M.W. sold out its entire allocation of B.M.W. 735's and, therefore, it would have sold the B.M.W. 735 that it sold to plaintiff "one way or the other." Thus, Blum estimated that Performance B.M.W. lost a profit of about $6,000 in selling the B.M.W. 735 to plaintiff for about $48,000, instead of selling it to a retail customer for about $54,000.
In light of this testimony, plaintiff's attorney asked Blum this question: "And so is it fair to say that the inability to obtain this [Lincoln Continental] vehicle [from defendant] not only caused you to have the loss of the $6,500 profit that you would have had on the Lincoln lease [but] you lost another $1,000 ultimately on the B.M.W. lease and you lost another $6,000 on not having that one [B.M.W.] vehicle in your allocation ... ? ... So your total damages as a result of the failure [of defendant] to deliver this [Lincoln Continental] vehicle is $13,500?" To this question, Blum replied: "Yes."
On cross-examination, Blum noted that, in June or July of 1988 (i.e., about a month or two after plaintiff and Coated entered into the 48-month B.M.W. lease in May, 1988), Coated went into bankruptcy. As a result, in July, 1988, plaintiff repossessed the B.M.W. and re-leased it, as a used car, to a third party. Finally, at trial, Blum conceded that he had no proof indicating how much (if any) profit plaintiff had made upon its post-Coated-bankruptcy re-lease of the used B.M.W.
Defendant argues that on this evidence, the jury could not have reached the $12,500.00 damage figure. We disagree. In fact, the evidence of plaintiff's lost profits coupled with a portion of the cost plaintiff was required to incur as cover amply supported the jury verdict. R. 2:11-3(e)(1)(B). See 1 White & Summers, Uniform Commercial Code § 6-4 at 294-295 (3d ed. 1988). (The general principle behind 1-106, in the *29 case of a seller's breach of the sale contract, is to put the buyer in as good a position as if the seller had fully performed the contract, and no more); N.J.S.A. 12A:2-712(1) ("the buyer may `cover' by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller"); N.J.S.A. 12A:2-712(2) ("The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (12A:2-715), but less expenses saved in consequence of the seller's breach"); N.J.S.A. 12A:2-715(2) ("Consequential damages resulting from the seller's breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise ...") Given these standards and the evidence adduced at trial, it is clear that there is no warrant for our intervention as to the damages award which could have been reached on this record.
III
We turn next to defendant's challenge to the award of prejudgment interest. In support of this claim, defendant relies solely on our decision in Jardine Estates v. Donna Brook Corp., 42 N.J. Super. 332, 126 A.2d 372 (App.Div. 1956) for the proposition that "[prejudgment] interest should not be allowed where the damages are unliquidated and not capable of ascertainment by mere computation, or where a serious and substantial controversy exists as to the amount due under a contract...." Id. at 340-41, 126 A.2d 372. The problem with defendant's argument is that the Jardine rule has effectively been superseded.
In Busik v. Levine, 63 N.J. 351, 307 A.2d 571, appeal dismissed 414 U.S. 1106, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973), the Supreme Court stated that prejudgment "interest is payable *30 on a liquidated claim when liability is denied, even in good faith." 63 N.J. at 358, 307 A.2d 571. Likewise in Ellmex Constr. Co., Inc. v. Republic Ins. Co., 202 N.J. Super. 195, 494 A.2d 339 (App.Div. 1985), certif. den. 103 N.J. 453, 511 A.2d 639 (1986), we held that, in deciding whether to award prejudgment interest, the question "[w]hether the claim be liquidated or not is, under the Busik rationale, of no realistic importance." 202 N.J. Super. at 213, 494 A.2d 339. In circumstances where "the equities favor plaintiff," prejudgment interest "should be awarded." Ibid. Further, in Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 478, 541 A.2d 1063 (1988), the Supreme Court held that it was "settled that prejudgment interest may be awarded on contract claims" and, citing Ellmex, added that the "rule that limited prejudgment interest awards to cases where damages were liquidated or clearly ascertainable in advance has been significantly eroded." Ibid. Finally, in Swatek, Inc. v. North Star Graphics, Inc., 246 N.J. Super. 281, 587 A.2d 629 (App.Div. 1991), we recently stated that the "rule emerging from Ellmex is that prejudgment interest can be awarded whether either liquidated or unliquidated damages are recovered and the equities are in the injured party's favor." Id. at 288, 587 A.2d 629.
Thus, defendant's reliance on Jardine Estates as an absolute bar to the award of prejudgment interest in these circumstances is misplaced. No other argument having been advanced and there being nothing to warrant the conclusion that the award constituted an abuse of discretion, it is affirmed.
IV
We turn finally to defendant's contention that the trial judge was without power to award counsel fees pursuant to the Consumer Fraud Act. This argument is based upon the jury's responses to the verdict form:
1. Did a contract exist between plaintiff Performance Leasing
Corporation and defendant Irwin Lincoln Mercury?
Yes X No ____ 6-0
*31 2. If you answered, "Yes" to Question No. 1, did defendant
Irwin Lincoln Mercury breach the contract?
Yes X No ____ 6-0
3. If you answered "Yes" to Question No. 2, what amount
of money would fairly and reasonably compensate plaintiff
for its losses?
$12,500 No ____ 6-0
4. Did defendant Irwin Lincoln Mercury commit an unconscionable
commercial practice in its dealing with plaintiff
Performance Leasing Corporation?
Yes X No ____ 5-1
5. If you answered "Yes" to Question No. 4, what is the fair
and reasonable amount of damages sustained by plaintiff
Performance Leasing Corporation?
$ 0 6-0
Defendant argues that the negative answer to question 5 precludes the assessment of counsel fees pursuant to the Consumer Fraud Act, which provides:
Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act or the act hereby amended or supplemented may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit [N.J.S.A. 56:8-19].
As the verdict form reveals, while the jury found that defendant "committed an unconscionable commercial practice" (a "violation" of the Consumer Fraud Act), it also found that plaintiff sustained no damages as a result. Based on these facts and upon the decision in Martin v. American Appliance, 174 N.J. Super. 382, 416 A.2d 933 (Law Div. 1980), defendant *32 argues that, because the jury had awarded "no damages with reference to the unconscionable commercial practice," there "can be no statutory attorney's fees awarded." In Martin, a Law Division judge ruled that "a plaintiff who is the victim of consumer fraud but who sustains no ascertainable loss of moneys or property as a result thereof" has no entitlement to an award of reasonable attorneys' fees and reasonable costs of suit pursuant to N.J.S.A. 56:8-19. Id. at 383-86, 416 A.2d 933.
Subsequent to Martin, a number of cases have been decided which have undercut its continuing viability. In Skeer v. EMK Motors, Inc., 187 N.J. Super. 465, 455 A.2d 508 (App.Div. 1982), we noted that the Consumer Fraud Act contains two basic forms of remedy, the first requiring the intervention of the Attorney General and the second providing a private cause of action. Id. at 470, 455 A.2d 508. Because one reason behind the second remedy was "providing an incentive for an attorney to take a [consumer fraud] case and ... encouraging private parties to bring their own actions instead of turning to the Attorney General", we held that "it is highly likely that the Legislature intended to mandate payment of attorneys' fees and treble damages." Id. at 472, 455 A.2d 508:
When the two remedies are considered together, it makes sense to conclude that treble damages and attorneys' fees are mandated in a private action. If the Attorney General investigates and directs that the citizen be repaid, the citizen need not pay counsel fees and costs, having had access to the resources of the Attorney General's office. However, if citizens bring private actions, they will have to pay attorneys' fees and incur potentially considerable expense for a small recovery. [Id. at 470-71, 455 A.2d 508].
Having said this, we concluded with the statement that, "to the extent inconsistent with our ruling today, the recently reported case of Swiss v. Williams, 184 N.J. Super. 243, 445 A.2d 486 (Cty.D.Ct. 1982), is overruled." Id. 187 N.J. Super. at 473, 455 A.2d 508. (Swiss held the treble damages and attorneys fees provisions of the Consumer Fraud Act to be discretionary rather than mandatory). See also Huffmaster v. Robinson, 221 N.J. Super. 315, 319, 534 A.2d 435 (Law Div. 1986) ("assessment of treble damages and attorney's fees is mandatory when a violation of the Consumer Fraud Act has been proved."); *33 Wisser v. Kaufman Carpet Co., 188 N.J. Super. 574, 458 A.2d 119 (App.Div. 1983) ("appropriate attorney's fees under the [Consumer Fraud] Act may be allowed without regard to the amount involved in the underlying dispute.")
In Coleman v. Fiore Brothers, Inc., 113 N.J. 594, 552 A.2d 141 (1989), the Supreme Court noted that the fee-shifting provision in N.J.S.A. 56:8-19 advanced the Act's policy of ensuring that plaintiffs with bona fide claims are able to find lawyers to represent them and encouraging counsel to take on private cases involving an infringement of statutory rights. Id. at 598, 603, 552 A.2d 141. The Court also emphasized that N.J.S.A. 56:8-19 provides "that a successful claimant `shall' recover threefold damages plus [attorneys'] fees and costs." Id. at 598-99, 552 A.2d 141. Finally, the Court stated: "Although we have never held that the counsel fees and treble damages are mandatory under the Act, we have no doubt that there is a strong legislative policy in favor of fees both to make whole the victims of consumer fraud and to deter unconscionable practices." Id. at 599, n. 1, 552 A.2d 141.
Finally, in Chattin v. Cape May Greene, Inc., 243 N.J. Super. 590, 581 A.2d 91 (App.Div. 1990), aff'd o.b. 124 N.J. 520, 591 A.2d 943 (1991), we noted that N.J.S.A. 56:8-19 provides that successful plaintiffs shall be awarded reasonable attorneys' fees and reasonable costs of suit, and that "there is no requirement that an award of attorneys' fees be proportionate to damages." 243 N.J. Super. at 616, 581 A.2d 91.
In our opinion, this continuum of cases implicitly overrules the Law Division decision in Martin insofar as that decision held that a plaintiff who is the victim of consumer fraud but who sustains no ascertainable loss of moneys or property as a result thereof has no entitlement to reasonable attorneys' fees under N.J.S.A. 56:8-19. Martin, supra, 174 N.J. Super. at 383-86, 416 A.2d 933. Where, as here, a jury finds that a defendant has committed an unconscionable commercial practice as defined in the Consumer Fraud Act, no damages attributable to that practice need be found in order to *34 invoke the attorneys' fees provision of the Act. Thus, we approve, as entirely consonant with the Consumer Fraud Act, the award of reasonable attorneys' fees to plaintiff in this case.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725333/ | 226 S.W.2d 816 (1950)
HALLAWAY
v.
THOMPSON, Trustee.
No. A-2399.
Supreme Court of Texas.
January 18, 1950.
Rehearing Denied February 15, 1950.
*817 Collins, Dies, Williams & Garrison, Lufkin, Kemp, Lewright, Dyer & Sorrell, Corpus Christi, W. M. Lewright, Corpus Christi, for petitioner.
Kleberg, Eckhardt, Mobley, Lockett & Weil, Corpus Christi, Leslie S. Lockett, Corpus Christi, Kelley, Mosheim & Ryan, Houston, Robert H. Kelley, Houston, for respondent.
HART, Justice.
The sole question presented in this case is whether the petitioner's action was barred by limitations, as held by both of the courts below.
The petitioner was injured on December 1, 1944, in a collision between a switch engine, on which he was riding, and an automobile. On November 19, 1946, he filed his original petition, complaining of Guy A. Thompson, Trustee for the St. Louis, Brownsville & Mexico Railway Company (hereafter called the Mexico Company), and alleging that he was an employee of this defendant at the time of the injury. The plaintiff's first amended original petition, filed on August 12, 1947, complained of the same defendant in the same capacity. In his second amended original petition, filed on December 12, 1947, the plaintiff still complained of Guy A. Thompson, as Trustee for the Mexico Company, and also complained of him in his capacity as Trustee for the San Antonio, Uvalde & Gulf Railroad Company (hereafter called the Gulf Company). In this petition the plaintiff alleged that the defendant Trustee was appointed as Trustee for the Mexico Company and also for the Gulf Company by the United States District Court in Missouri in a proceeding entitled "In the Matter of Missouri Pacific Railroad Company, in Proceedings for the Reorganization of a Railroad," that as such Trustee he was in possession of all of the properties of the two named railroads, that he was operating them together with other railroads as the Missouri Pacific system, that as Trustee for each railroad he had the same counsel, that the Trustee hired various employees who performed services for each railroad during the same period of time, that it was peculiarly within the knowledge of the Trustee as to when an individual employee was working for him in his capacity as Trustee for one railroad or the other, and that it was practically *818 impossible for the plaintiff to determine whether he was working for the Trustee in one capacity or the other.
On April 22, 1948, the plaintiff filed his third amended original petition, complaining of Guy A. Thompson only in his capacity as Trustee for the Gulf Company. The plaintiff repeated the allegations of his second amended original petition regarding the Trustee's appointment and his operation of the two railroads as stated above, and further pleaded as follows:
"That on the date hereinafter mentioned, plaintiff herein was in the employ of the said defendant Trustee as a switchman, and had been so employed for a considerable period of time prior to the date of his accident, as hereinafter detailed, and at said time the employees, particularly including the engineer and fireman in charge of the locomotive or switch engine hereinafter referred to, were also employees of the defendant Trustee, and were, on said occasion, operating the said switch engine in the course of his employment for said Trustee and in the operation of the aforesaid railway system, engaged in the transportation, switching and handling of freight cars and passengers in and around the City of Corpus Christi, Nueces County, Texas, but it being, as above explained, very difficult for plaintiff to determine whether, at the actual time of the accident involved herein, he was an employee of the defendant in his capacity as Trustee for the St. Louis, Brownsville & Mexico Railway Company or in his capacity as Trustee for the said San Antonio, Uvalde & Gulf Railroad Company, and at the time of the filing of Plaintiff's Original Petition herein, it was the information and belief of plaintiff herein that he was then acting as an employee of the defendant Guy A. Thompson, as Trustee for the St. Louis, Brownsville & Mexico Railway Company, but at the time of the filing of his Second Amended Original Petition herein, as is averred in said petition, plaintiff herein had ascertained that there was some question as to which of the capacities the defendant occupied on the occasion in question, and as to whether plaintiff was or was not an employee of said defendant in his capacity as Trustee for said St. Louis, Brownsville & Mexico Railway Company, rather than in his capacity as Trustee for the San Antonio, Uvalde & Gulf Railroad Company, but plaintiff now respectfully shows unto the Court that he has been informed and believes, and upon such information and belief here avers the facts to be that, on the occasion hereinafter alleged, the switch engine and crew, including plaintiff herein, were operating and running said switch engine for the defendant Trustee in his capacity as Trustee for the San Antonio, Uvalde & Gulf Railroad Company, and, therefore, plaintiff here now seeks judgment, as is hereinafter shown, against the defendant Trustee in his capacity as Trustee for said San Antonio, Uvalde & Gulf Railroad Company."
The defendant, as Trustee for the Gulf Company, specially excepted to the plaintiff's third amended original petition on two grounds: (1) that the plaintiff's cause of action "accrued more than two years prior to the commencement of this suit against this Defendant and more than two years prior to the filing of the Second Amended Original Petition in which this Defendant was made a party for the first time, and that the same is barred by limitations," and (2) that if the plaintiff's cause of action is governed by the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., which was not admitted, it "accrued more than three years prior to the commencement of this action as to this Defendant and more than three years prior to the filing of said Second Amended Original Petition in which for the first time this Defendant was made a party defendant, and that same is barred by the limitation as prescribed in said Act."
The district court sustained both of these special exceptions and, upon the plaintiff's refusing to amend his petition, dismissed the cause. The district court's judgment was affirmed by the Court of Civil Appeals. 222 S.W.2d 702.
The decision of this case turns on the question whether the plaintiff's action against the defendant was commenced when the plaintiff's original petition was *819 filed on November 19, 1946, which was less than two years after the cause of action accrued, or when his second amended original petition was filed on December 12, 1947, which was more than three years after the cause of action accrued. As we have already stated, in the original petition, Guy A. Thompson, as Trustee for the Mexico Company, was named as a defendant, and in the second amended original petition for the first time Guy A. Thompson, as Trustee for the Gulf Company, was named as a defendant.
If the action against the respondent was commenced with the filing of the plaintiff's original petition, then it was not barred by limitation, whether the Texas two-year statute, Article 5526, Vernon's Ann.Civ.St., or the federal three-year statute, 45 U.S.C.A. § 56, applies; on the other hand, if the action against the respondent was not commenced until the second amended original petition was filed, then it would be barred under either statute. However, in determining whether the action against the respondent was commenced when the suit was originally filed or only when he was first sued by amended pleading in the capacity in which he is now sought to be held liable, it is material to decide whether the suit is one governed by state law or the federal statute. If the suit is one under the state law, then of course the provisions of our statutes and the decisions of the Texas courts control. On the other hand, if under this record the suit is based on the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, then the decisions of the Supreme Court of the United States construing this statute, and particularly Section 6, 45 U.S.C.A. § 56, relating to limitation, are controlling. Pope v. Kansas City, M. & O. Ry. Co. of Texas, 109 Tex. 311, 207 S.W. 514; Davis v. Preston, 118 Tex. 303, 16 S.W.2d 117; Texarkana & Ft. S. Ry. Co. v. Casey, Tex. Civ.App., 172 S.W. 729, writ refused.
It is essential to make a case under the Federal Employers' Liability Act, not only that the carrier is engaged in interstate or foreign commerce, but also that the person suffers the injury while he is employed in such commerce, as is expressly provided in Section 1 of that act, 45 U.S. C.A. § 51. Second Employers' Liability Cases, 223 U.S. 1, 32 S. Ct. 169, 56 L. Ed. 327, 38 L.R.A., N.S., 44; Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 33 S. Ct. 648, 57 L. Ed. 1125; St. Louis, S. F. & T. R. Co. v. Seale, 229 U.S. 156, 33 S. Ct. 651, 57 L. Ed. 1129, Ann.Cas.1914C, 156. The plaintiff's petition in the present case alleges that the carrier was engaged in interstate and foreign commerce, but it does not allege that the injury occurred while the plaintiff was employed in such commerce. Since the judgment was based entirely on exceptions to the pleadings, there is nothing by which we can determine the basis of the plaintiff's cause of action except the allegations in the pleadings. On this basis, the plaintiff failed to bring his case under the federal act, and the case must therefore be determined by the construction given by the Texas courts to our statutes of limitation.
There is no Texas statute relating particularly to limitation of actions for personal injuries in suits by employees against railroads, although this kind of action is covered in other respects by Articles 6432-6443, Vernon's Ann.Civ.St. The general two-year statute relating to actions for personal injuries, Article 5526, Vernon's Ann. Civ.St., is therefore applicable, as modified by the provisions of Article 5539b, Vernon's Ann.Civ.St., Acts 1931, 42nd Leg., p. 194, ch. 115, § 1, relating to amended pleadings, which reads as follows: "Whenever any pleading is filed by any party to a suit embracing any cause of action, cross-action, counterclaim, or defense, and at the time of filing such pleading such cause of action, cross-action, counterclaim, or defense is not subject to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability or of defense shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence. Provided, however, when any such amendment or supplement is filed, if any new or different facts are alleged, upon application *820 of the opposite party, the court may postpone or continue the case as justice may require."
There seems to be no decision construing Article 5539b on the point presented by this case, and we must therefore pass on its application as an original proposition. The record in this case shows that the same man, Guy A. Thompson, was named as a defendant, and the same transaction or occurrence was alleged as a basis for the suit, in all of the plaintiff's pleadings. The material change as between the original petition and the second amended original petition is that the capacity in which the defendant is sued is changed. This change is important for some purposes, such as in determining the property from which the plaintiff can collect any judgment which he may recover. In some cases, such a change might also affect the basis of the defendant's liability, as in St. Louis, B. & M. Ry. Co. v. McLean, Tex.Com.App., 253 S.W. 248. However, the particular question to be decided here is whether the amendment regarding the defendant's capacity is such that the plaintiff's action must be said to have been commenced only when the second amendment was filed, rather than when the original petition was filed. The answer to this question must be based on a consideration of the reasons for the statutes of limitation and the effect a decision one way or the other will have on the just enforcement of the policy behind them.
In Harrison Machine Works v. Reigor, 64 Tex. 89, 90, this court said: "The purpose of statutes of limitation is `to compel the settlement of claims within a reasonable period after their origin, and while the evidence upon which their enforcement or resistance rests is yet fresh in the minds of the parties or their witnesses.' Wood on Lim., § 5."
In Hanley v. Oil Capital Broadcasting Ass'n, 141 Tex. 243, 245, 171 S.W.2d 864, 865, the purpose of limitation statutes was stated as follows: "Our decisions seem uniformly to recognize that, although it does so result in some cases, it was never the purpose of the act to permit debtors to escape their obligations. Rather, the evil it sought to remedy `was to prevent demands originally invalid or which had been discharged from being enforced after such a lapse of time as would probably make it impossible for defendants to procure the evidence by which a just defense could be established.'"
Substantially the same thought was expressed in Southern Surety Co. of New York v. First State Bank, Tex.Civ.App., 54 S.W.2d 888, 892, writ refused: "The object of a statute of limitation in requiring the complaining party to assert his claim within a reasonable time is to suppress fraudulent and stale claims from springing up at great distances of time and surprising the other party after the evidence which would sustain a defense has been lost." See, also, 53 C. J. S., Limitations of Actions, § 1, b.
We think that the purpose of the statutes of limitation, as amended by Article 5539b, would be given proper effect by holding that in the present case the plaintiff's action was commenced with the filing of his original petition. The defendant, Guy A. Thompson, was then notified of the nature of the plaintiff's claim and the occurrence or transaction out of which it arose. He and his counsel, who have represented him throughout this litigation in whichever capacity he was sued, were then given timely opportunity to interview witnesses and to obtain such evidence as they deemed advisable to defend the suit. Under the allegations of the plaintiff's petition, which must be taken as true on this appeal, the plaintiff and his fellow workmen were employed sometimes by the defendant in one capacity and sometimes in another, and it was peculiarly within the defendant's knowledge as to whether he was employing the plaintiff as Trustee for one railroad or the other at the time of the injury. While the plaintiff made a mistake in his original petition as to the capacity in which the defendant was acting at that particular time, the defendant was at all times fully cognizant of the facts and could not have been misled as to the basis of the plaintiff's suit by the allegations of the original petition, nor was he placed at any disadvantage in obtaining relevant evidence to *821 defend the suit. Under these conditions, we think it would be a misapplication of the statutes of limitation to hold that the plaintiff's action was barred.
Decisions in similar cases prior to the passage of Article 5539b are not harmonious. The reasoning of some cases lends support to the respondent's contentions. In Henderson v. Kissam, 8 Tex. 46, the suit was brought in Harris County against two defendants and venue was laid there solely on the ground that one of the defendants, A. C. Allen, was the administrator of a decedent's estate which was being administered by the probate court of Harris County. Several years after the suit had been filed, the petition was amended and it was alleged that there was in fact no administration of the decedent's estate and the suit was discontinued as to A. C. Allen as administrator, but the defendant A. C. Allen was for the first time sued in his individual capacity. The court held that the amendment amounted to a discontinuance of the whole suit and that it should have been dismissed, relying to a large extent on the fact that after the amendment there was no basis for maintaining venue in Harris County. However, the court in its opinion points out that in the original suit the object was to subject the property of a decedent's estate to liability, while the amendment had for its purpose to subject A. C. Allen's individual property to liability, and the court further says that before the amendment of the petition the statute had operated as a bar to the suit against A. C. Allen individually. It may be noted that Chief Justice Hemphill expresses regret in his opinion that he could not give the subject "a more extended consideration" because of "the pressure of other causes." 8 Tex. at page 56.
In Morales v. Fisk, 66 Tex. 189, 18 S.W. 495, it was held that, where the plaintiff originally sued in his own right, the statute of limitations continued to run until he filed an amendment in which he sued for the first time as administrator of an estate.
More recent Texas decisions have taken the opposite view in similar cases. In Kopperl v. Sterling, Tex.Civ.App., 241 S.W. 553, 555, writ refused, it was held that where a defendant was originally sued in her individual capacity, an amendment naming her in her capacity as administratrix did not state a new cause of action so as to let in limitation. On this point the court said:
"Where, as here, the parties are the same, being all who could have any interest in the subject-matterthat is, the validity or not of the probate of the will attacked and, independent of the parties, the facts for the cause of action set out in the original and amended petitions, though in slightly different verbiage, are identical, there is no new cause of action, and no limitation is let in, merely because, in event of recovery, the judgment authorized by the amendment would be so enlarged as to become binding upon one of the parties in her representative capacity as well as upon her individually. The right of action averred in both pleadings rested upon the alleged mental incompetency of the testator to make a will at all; it did not, therefore, in either instance depend upon the capacity in which the appellee was designated as a defendant; hence in the transition between the two petitions there was no change in the substance of the suit, but simply one in the capacity in which the same person was sought to be held."
In Davis v. Gant, Tex.Civ.App., 247 S.W. 576, 578, writ refused, the plaintiff originally sued as administratrix and later amended and sued individually and as next friend for her minor children. The court held that the filing of the amendment did not constitute the filing of a new action, saying:
"It is apparently conceded by the appellant, Davis, that under this provision Mrs. Gant could have maintained in Texas a suit for damages in her own right and as next friend for her children, had she filed such a suit within the time prescribed by the Louisiana statute. The contention is that she failed to do this; that her suit as administratrix was one in which she could not have recovered a judgment, and was tantamount to no suit within the meaning of the Louisiana law. Her amendment asserting *822 a claim in her own right and as next friend for the children, it is claimed, was so radical a departure from her former petition that it amounted to a new suit. If that proposition is sound, then the amendment was filed too late. It has been definitely decided by the courts of this state and of the United States that a mere change in the capacity in which the plaintiff brings a suit, the substantive facts being the same, is not the institution of a new suit. That is true, even though the plaintiff could not recover in the capacity assumed in the original petition. Texarkana & Ft. S. Ry. Co. v. Casey, Tex.Civ. App., 172 S.W. 729; Missouri, K. & T. Railway Co. v. Wulf, 226 U.S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann.Cas. 1914B, 134; Bird v. Ft. W. & R. G. Ry. Co., 109 Tex. 323, 207 S.W. 518. In her first petition, while Mrs. Gant sued as administratrix, she fully described the relationship of the deceased, and sought relief for all the beneficiaries entitled to recover under the laws of Louisiana. The mere change in the capacity in which the suit was brought did not constitute the filing of a new and distinct action."
In cases involving federal statutes, this court, following the United States Supreme Court, has held that the change in the capacity in which the plaintiff sues does not constitute bringing a new action so as to let in limitation. Pope v. Kansas City, M. & O. Ry. Co. of Texas, 109 Tex. 311, 207 S.W. 514; Davis v. Preston, 118 Tex. 303, 16 S.W.2d 117.
The rule is stated generally that a change in the capacity in which the defendant is sued does not constitute the institution of a new suit so as to allow limitation to run until the filing of the amendment. 54 C.J.S., Limitations of Actions, § 275; 34 Am.Jur., Limitation of Actions, § 277; 28 Tex.Jur., Limitation of Actions, § 114; Annotation, 74 A.L.R. 1280. Decisions in other states are conflicting, some adopting the view that such an amendment states a new cause of action, as in Bender v. Penfield, 235 Pa. 58, 83 A. 585, and others taking the opposite view, as in Boyd v. United States Mortgage & Trust Co., 187 N.Y. 262, 79 N.E. 999, 9 L.R.A.,N.S., 399, 116 Am. St.Rep. 599, 10 Ann.Cas. 146. We think the reasoning in the latter case is sound and that it is appropriate to the case before us, particularly in view of the language of Article 5539b, quoted above. In the Boyd case the defendant was originally sued as trustee, and later the pleadings were amended so that the defendant was sued individually. The court held that the amendment did not amount to the bringing in of a new party, and that limitations ceased to run against the action when the suit was originally filed and not when the amendment was made. In its opinion, the court first stated the question before it as follows:
"Assuming, as I think we must assume, that the Supreme Court at Special Term possessed authority to permit the amendment of the summons and complaint which was allowed in this case, we are confronted with the much more serious question, in respect to which the members of the court below have differed, as to the effect of that amendment. If its effect was to bring in a new party in the fullest sense of that term that is to say, a defendant who had never before been brought into court in this action for any purposethen as to such defendant the action cannot be deemed to have been commenced until the service of the amended process, and such defendant would not be deprived of the benefit of its plea of the statute of limitations." 187 N.Y. at page 268, 79 N.E. at page 1001.
The court then states the contentions of the parties and the holding of the lower court as follows:
"* * * The argument is that the amendment, in effect, added to the action an entirely new defendant, the purpose of the amendment being not merely to correct a mistake in the name of the defendant so as to continue the action against the party originally intended, but to bring in and render liable a different defendant from the first one sought to be charged. If this view be correct, it manifestly requires a reversal of the judgment in favor of the plaintiff.
"On the other hand, the respondent contends, and the court below has held, that an amendment which changes an action *823 brought against a person in a representative capacity to an action against the same person as an individual does not really bring in a new party defendant. In the prevailing opinion at the Appellate Division, Mr. Justice O'Brien, referring to the argument that a judgment against the United States Mortgage & Trust Company, as trustee, would not be binding upon it individually, declares that this proposition is not determinative of the question, and says: `It is that very fact which makes the amendment necessary, but the result of the amendment was not to bring in a new party. What is controlling in each case is whether or not a new partythat is, a new person or corporation is, by the amendment, made a defendant. Here the mortgage company was served originally and nothing was gained in having it before the court by the new service, but for the proper entry of the judgment against it the designation was upon motion changed by striking out the words "as substituted trustee," etc. It follows that, as it was not subsequently brought in, the statute of limitations would not constitute a bar to the maintenance of the action against it.' Boyd v. United States Mortgage & T. Co., 94 A.D. 413, 417, 88 N.Y.S. 289." 187 N.Y. at page 269, 79 N.E. at page 1001.
The court's conclusion is as follows:
"The question which has given rise to such a difference of opinion in the court below is one of considerable practical importance to the legal profession, and I have, therefore, sought light upon it by the examination of a large number of cases, both English and American, to which no reference has been made either in the briefs or arguments of counsel. As a result of this research, and after a careful consideration of the reasoning in support of the contending views, I am satisfied that the amendment allowed in the case at bar does not really bring in a new party in the sense of making one a defendant who was not in any sense a defendant before the process and pleading were amended. It merely changes the capacity in which the same person is sought to be charged. That person having actually been brought into court by the service of the original process, there seems to be no reason why he should not be required to contest upon the merits any cause of action growing out of the facts alleged in the complaint which the plaintiff may have against him in one capacity rather than in another, provided that he is notified by a timely and proper amendment of the precise capacity in which the plaintiff seeks to hold him liable." (Emphasis added.) 187 N.Y. at page 270, 79 N.E. at page 1001.
The obvious purpose of Article 5539b was to limit the application of the statutes of limitations to amended pleadings. It was evidently intended to modify the previously existing rule for determining whether limitation should apply to an amended pleading, as first announced in Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707. See the comment on a proposed similar statute in the Second Annual Report of the Texas Civil Judicial Council (1930) pp. 17-21, and comments on Article 5539b in 9 Tex.L.Rev. 539; 14 Tex.L.Rev. 400; 15 Tex.L.Rev. 137, 269; 18 Tex.L.Rev. 234. Article 5539b expressly provides that an amendment to a pleading shall not be subject to a plea of limitation where the amendment is not wholly based on or grows out of a new, distinct or different transaction or occurrence. Of course, this rule would not apply to an entirely new defendant who is brought in for the first time by an amendment. However, we think it can be fairly applied under the facts in this case where the amendment names the same defendant, but changes the capacity in which he is sued. The commencement of the plaintiff's action therefore dates from the filing of his original petition, and the special exceptions to the plaintiff's third amended original petition were erroneously sustained. The judgments of the district court and the Court of Civil Appeals are reversed and the cause is remanded to the district court for a new trial.
On Respondent's Motion for Rehearing
In his motion for rehearing, respondent for the first time contends that this is a case under the Federal Employers' Liability Act and is governed by the provisions *824 of the limitations section of that Act, 45 U.S.C.A. § 56, for the reason that "since the petition alleged that the Respondent was engaged in interstate commerce, and that the Plaintiff was working on a switch engine, the allegation brings the case squarely within the Federal Employers' Liability Act."
As we stated in our original opinion, the petitioner pleaded that the respondent was operating the railroad in interstate and foreign commerce, but petitioner failed to allege that he was injured while he was employed by the respondent in such commerce. Petitioner's specific allegations were that he and the rest of his crew were operating a switch engine "engaged in the transportation, switching and handling of freight cars and passengers in and around the City of Corpus Christi, Nueces County, Texas." With the pleadings in this condition we concluded that the petitioner had failed to allege a case coming within the Federal Employers' Liability Act.
Respondent cites Kach v. Monessen Southwestern Ry. Co., 3 Cir., 151 F.2d 400; Atlantic Coast Line R. R. v. Meeks, 30 Tenn.App. 520, 208 S.W.2d 355; Trucco v. Erie R. Co., 353 Pa. 320, 45 A.2d 20; and Maxie v. Gulf, M. & O. R. Co., 356 Mo. 633, 202 S.W.2d 904, to sustain his contention that the petitioner's pleadings bring the case within the Federal Employers' Liability Act, as amended in 1939. While it is true that these cases hold that the 1939 amendment eliminated the necessity of showing that at the very time of the injury the employee was engaged in interstate commerce, still they recognize that the employee must, as the Act provides, show that his duties at least in part are in the furtherance of interstate or foreign commerce or that they affect such commerce directly or closely and substantially. We do not think that the petitioner's pleadings meet this requirement, although we are somewhat in doubt as to the effect of the 1939 amendment to the Federal Act in the absence of an authoritative construction of it by the Supreme Court of the United States.
It is possible that it will be held, as respondent contends the law to be, that practically every employee of a railroad handling interstate business is within the terms of the amended Act. If so, and if pleadings such as those of the petitioner in this case are held to bring the case within the Federal Employers' Liability Act, then we are of the opinion that the petitioner's action would not be barred by the limitations provision of that Act. As this court stated in Pope v. Kansas City, M. & O. Ry. Co. of Texas, 109 Tex. 311, 320, 207 S.W. 514, 517, "the United States Supreme Court appears to have certainly indicated that it would adopt a liberal course in saving substantial rights under the Federal Employers' Liability Act * * * from the bar of limitation." Missouri, K. & T. Ry. Co. v. Wulf, 226 U.S. 570, 33 S. Ct. 135, 57 L. Ed. 355; Seaboard Air Line Ry. v. Renn, 241 U.S. 290, 36 S. Ct. 567, 60 L. Ed. 1006. This court is of course bound to follow the construction of the Act by the Supreme Court of the United States. While the precise question here presented has apparently not been decided by that court, we think that it follows from decisions in analogous cases that the amendment of the petitioner's pleading changing the capacity in which the respondent is sued would not let in limitations under the Federal Act. Missouri, K. & T. Ry. Co. v. Wulf, supra; Seaboard Air Line Ry. v. Renn, supra; 54 C.J. S., Limitations of Actions, § 275.
The respondent's motion for rehearing is overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263771/ | 479 F.Supp. 292 (1979)
Bertell OLLMAN, Plaintiff,
v.
Rowland EVANS and Robert Novak, Defendants.
Civ. A. No. 79-0526.
United States District Court, District of Columbia.
September 26, 1979.
David Rein, Washington, D. C., for plaintiff.
Robert H. Loeffler, Washington, D. C., for defendant.
MEMORANDUM OPINION AND ORDER
AUBREY E. ROBINSON, Jr., District Judge.
Before the Court is Defendant's Motion for Summary Judgment in a defamation action brought by Bertell Ollman against Rowland Evans and Robert Novak. This Court has jurisdiction under 28 U.S.C. § 1332 and Rule 56 of the Federal Rules of Civil Procedure.
The material facts in this case are not in dispute. Plaintiff is a Marxist professor of political science. He was nominated for the position of Chairman of the Department of Government and Economics at the University of Maryland. Defendants Evans and Novak are syndicated columnists. They wrote a scathing article that questioned the nomination. Plaintiff was subsequently denied the above-stated position. He claims that the article damaged his reputation as a scholar, causing great distress and mental anguish.
The alleged defamatory article was published in The Washington Post, The New York Post, and other newspapers throughout the country on May 4, 1978.[1] Plaintiff *293 asserts that the article is defamatory because (1) it denies Ollman's reputation as a scholar and portrays him as a political activist, (2) it states that Plaintiff is widely viewed in his profession as a political activist, (3) it alleges that Ollman is an outspoken proponent of "political Marxism," (4) it asserts that Ollman is a "pamphleteer," and (5) it contends that Plaintiff desires to use the classroom as a tool for preparing what Ollman calls "the revolution." Defendants move for summary judgment on one issue, namely: they claim that the article in question is essentially a statement of opinions and conclusions, and as such no cause of action for defamation arises.
The First Amendment precludes liability based on the utterance of defamatory opinions. As the Supreme Court stated in Gertz v. Welch,[2] "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas."[3] As the Gertz Court noted, however, "there is no constitutional value in false statements of fact."[4] For any statement to be actionable, it must depict false facts in a defamatory light.
The First Amendment requires indefeasible protection of opinion to facilitate the free flow of ideas. Opinion qua opinion cannot provide the basis for an actionable claim. A cause of action will accrue, however, if a statement implies the existence of undisclosed "facts" which are both false and defamatory.[5] According to the Restatement (Second), Torts, § 566.
*294 A defamatory communication may consist of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis of the opinion.
If an author bases his opinion on disclosed facts, the opinion itself does not give rise to a cause of action. Should the underlying facts prove false, they (rather than the opinion) would be actionable. If the author supplies no such facts, but utters a defamatory opinion, a claim arises. It is the libelous underlying "facts," rather than the opinion, that makes the defamatory statement actionable.
This approach strikes a balance between competing legitimate needs. It encourages unfettered inquiry, contemplation, and communication, yet does not preclude redress to individuals for damage to their reputation. This analysis has been adopted in three jurisdictions,[6] and is adopted here.
It is imperative to distinguish between statements of opinion and assertions of fact. While the difference may be hazy at times, this Court finds that "loosely definable, variously interpretable statements . . made inextricably in the context of political, social, or philosophical debate"[7] are opinions. Statements imputing objective reality, uncolored by possible interpretation or bias, are assertions of fact.
This Court has carefully parsed the article in question. While Defendants refer to Plaintiff's writings and speeches, Ollman's statements are selected to reflect Defendants' opinion. Portions contrary to Evan's and Novak's viewpoint are carefully omitted. While this may be thought of as biased journalism, it is afforded the same constitutional protection as writing thought of as "balanced."
Defendants accuse Plaintiff of being a "political Marxist," a "political activist," and a "pamphleteer." These are merely the opinions of two people, couched in obscure words that defy concrete definition. Defendants also submit that Plaintiff lacks a reputation in his field as a scholar. A person's reputation is derived from opinion. Conclusions based on opinion must by definition be opinion. Finally, Defendants' claim that "Ollman's writings candidly profess the desire to use the classroom as an instrument for preparing what he [Ollman] calls the `revolution.'" This statement reflects nothing more than Defendants' interpretation of Plaintiff's writings.
Under Gertz and its progeny, no cause of action arises unless Defendants' opinions imply underlying false and defamatory statements of fact. No such implication is apparent. Rather, Defendants have quoted Plaintiff's writings and speeches, and have cited his campaign for election to the council of the American Political Science Association as "proof" that their allegations are grounded in fact. There is no evidence that any of the data supporting Evan's and Novak's conclusions is false or defamatory. Nor is there any reason to assume that Defendants relied on any other evidence in support of their contentions.
Accordingly, it is by the Court this 26th day of September, 1979,
ORDERED, that Defendants' Motion for Summary Judgment is hereby GRANTED.
NOTES
[1] The article may be summarized as follows:
His [Ollman's] candid writings avow his desire to use the classroom as an instrument for preparing what he calls "the revolution." Whether this is a form of indoctrination that could transform the real function of a university and transcend limits of academic freedom is a concern to academicians who are neither McCarthyite nor know-nothing . ..
While Ollman is described in news accounts as a "respected Marxist scholar," he is widely viewed in his profession as a political activist. Amid the increasingly popular Marxist movement in university life, he is distinct from philosophical Marxists. Rather, he is an outspoken proponent of "political Marxism."
He twice sought election to the council of the American Political Science Association as a candidate of the "Caucus for a New Political Science" and finished last out of the 16 candidates each time. Whether or not that represents a professional judgment by his colleagues, as some critics contend, the verdict clearly rejected his campaign pledge: "If elected . . . I shall use every means at my disposal to promote the study of Marxism and Marxist approaches to politics throughout the profession."
Ollman's intentions become explicit in "On Teaching Marxism and Building the Movement," his article in the Winter 1978 issue of New Political Science. Most students, he claims, conclude his course with a "Marxist outlook." Ollman concedes that will be seen "as an admission that the purpose of my course is to convert students to socialism."
That bothers him not at all because "a correct understanding of Marxism (as indeed of any body of scientific truths) leads automatically to its acceptance." Non-Marxist students are defined as those "who do not yet understand Marxism." The "classroom" is a place where the students' "bourgeois ideology is being dismantled." "Our prior task" before the revolution, he writes, "is to make more revolutionaries. The revolution will only occur, when there are enough of us to make it. . . ."
Ollman's principal scholarly work, "Alienation: Marx's Conception of Man in Capitalist Society," is a ponderous tome in adoration of the master (Marxism "is like a magnificently rich tapestry"). Published in 1971, it does not abandon hope for the revolution forecast by Karl Marx in 1848. "The present youth rebellion," he writes, by "helping to change the workers of tomorrow" will, along with other factors, make possible "a socialist revolution."
Such pamphleteering is hooted at by one political scientist in a major eastern university, whose scholarship and reputation as a liberal are well known. "Ollman has no status within the profession, but is a pure and simple activist," he said. Would he say that publicly? "No chance of it. Our academic culture does not permit the raising of such questions."
[2] 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
[3] Id., at 339-340, 94 S.Ct. at 3007.
[4] Id., at 340, 94 S.Ct. at 3007.
[5] Plaintiff's burden of proof depends upon whether he is a public official, public figure or private person. New York Times v. Sullian, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 139, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Gertz v. Welch, supra. The varying burdens of proof, however, do not determine whether a cause of action has accrued. Herbert v. Lando, 44 U.S. 153 at 175-177, 99 S.Ct. 1635, 60 L.Ed.2d 115.
[6] See Hotchner v. Castillo-Puche, 551 F.2d 910 at 913. (2d Cir. 1977) cert. den. 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95; Buckley v. Littell, 539 F.2d 882 at 893 (2d Cir. 1976) cert. den. 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777; Orr v. Argus-Press Co., 586 F.2d 1108 (6th Cir. 1978) cert. den. 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773; Yerkie v. Post-Newsweek Stations, 470 F.Supp. 91 (D.Md.1979).
[7] Buckley v. Littell, supra, at 895. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263776/ | 24 Cal.App.4th 1050 (1994)
29 Cal. Rptr.2d 518
LITTORAL DEVELOPMENT CO. et al., Plaintiffs and Appellants,
v.
SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION, Defendant and Respondent.
Docket No. A061428.
Court of Appeals of California, First District, Division Five.
May 2, 1994.
*1053 COUNSEL
Bowers, Thomas & Associates, Terry J. Thomas and Sherry B. Bowers for Plaintiffs and Appellants.
Ronald A. Zumbrun and Robin L. Rivett as Amici Curiae on behalf of Plaintiffs and Appellants.
Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Jan S. Stevens, Assistant Attorney General, and Linus Masouredis, Deputy Attorney General, for Defendant and Respondent.
OPINION
PETERSON, P.J.
In order to protect San Francisco Bay from further environmental degradation through filling and development, the Legislature created the San Francisco Bay Conservation and Development Commission (BCDC), and gave BCDC jurisdiction over all areas of the bay subject to "tidal action" which for purposes relevant here the Legislature defined in Government Code[1] section 66610. This statute specifically defined San Francisco Bay, for purposes of BCDC jurisdiction and as here pertinent, as including all sloughs; "marshlands" extending from a seaward line of "mean high tide" of the bay to a landward line five feet above mean sea level; "tidelands" lying between mean high tide and mean low tide; and "submerged lands" lying below mean low tide.
Section 66610 also conferred jurisdiction to BCDC over a "shoreline band." That band is measured 100 feet landward of and parallel with the shoreline of San Francisco Bay. BCDC contends that the "shoreline" of San Francisco Bay, comprising the seaward boundary of the 100-foot "shoreline band" under its jurisdiction, is coterminous with the level of the highest tide recorded since 1965, when BCDC was formed. In this case, it has sought to regulate the use of appellant's land accordingly.
We reject BCDC's contention and hold that the "shoreline" of San Francisco Bay, comprising the seaward boundary of the 100-foot shoreline *1054 band under BCDC's jurisdiction, is the line of mean high tide of the bay, which only in marshlands is extended landward to a line 5 feet above the line of mean sea level.
We thus reverse part of the trial court's decision, which validated BCDC's assertion of its jurisdiction over upland portions of a previously developed and filled parcel, littoral to the bay, which was not shown to lie within the 100-foot shoreline band of BCDC's jurisdiction. We affirm the portion of the trial court's decision which validated BCDC jurisdiction over a small salt marsh on the bayward one-third of the parcel, which was within BCDC's statutory jurisdiction over marshlands.
I. FACTS AND PROCEDURAL HISTORY
The bayshore parcel in question here has a long and interesting history. For present purposes, we summarize the relevant facts as follows.
The parcel in issue lies in Sausalito, in a low-lying area next to the Richardson Bay portion of San Francisco Bay. Around 1936, while the Golden Gate Bridge was being constructed, some of the spoils excavated in the construction of the bridge were used to fill the landward one-third of the parcel. Over the succeeding decades, successive fillings extended this area bayward. The land continually subsides due to the settling of the underlying bay mud and sediments. As a result, the actual elevation of the land has varied; its height at any particular past time is somewhat difficult to determine.
In the early 1960's, the previous owner of the parcel filled it out to the bayward limits of the parcel. The height of the parcel after this filling is a matter in dispute; the prior owner believed he had filled it himself to a height of about seven feet, but professional surveys done after the filling mostly show heights in the range of four to five feet.
In 1965, BCDC was given jurisdiction over the bay by a legislative grant, the terms of which we will explore in the succeeding section of this opinion. One relevant fact for purposes of this case is that BCDC has regulatory power over any parcel which was within the limits of its jurisdiction in 1965, or which became so thereafter; filling subsequent to 1965 would not divest BCDC of this jurisdiction.
In 1976, appellants Littoral Development Co. and Diversified Realty Services, the new owners of the parcel, filled and fenced the landward two-thirds of the parcel for use as a parking lot. Appellants subsequently *1055 applied for, but did not receive, a BCDC permit for this filling. The parties devote much time and energy to assailing each other's supposed lack of good faith regarding the permit process for this filling and other related matters, but for present purposes their recriminations regarding the 1976 filling and their subsequent disputes are not directly relevant. The filled and fenced portion of the parcel is mostly below 5.5 feet in elevation, measured from mean sea level, but it was not shown to lie below the level of mean high tide, either in its present condition or prior to the 1976 filling. This landward two-thirds of the parcel has historically been inundated by water only in exceptional or record high tides, or during major storms which might occur about once or twice every decade. The upland portion of the parcel is not marshland, and has been used for parking or storage of vehicles and other related uses since at least 1977.
The bayward, unfenced portion of the parcel, however, now constitutes a small parcel of low-lying salt marsh, covered with vegetation of a type which is characteristic of salt marshes around the bay.
Since at least 1976, the question of BCDC's jurisdiction over the parcel has been in dispute. In brief, BCDC contends here that almost all of the parcel is within the shoreline of the bay, or within the shoreline band as BCDC would define it, since it has been inundated in the past by record high tides. Appellants contend no portion of the parcel lying more than 100 feet landward of the line of mean high tide has been subject to BCDC jurisdiction for the period from 1965 to the present.
Appellants desired to construct a hotel on the property. In order to do so, they had to obtain permits both from Marin County, for any portion of the property not within BCDC jurisdiction, as well as from BCDC for the area within its bay and shore zone jurisdictions. Since the dividing line between these respective jurisdictional limits was not known, the county asked BCDC to determine the limits of its jurisdiction over the parcel.
BCDC thereafter followed the recommendation of its staff, and ruled that almost all of the parcel (excepting only one small portion of a corner on the landward side) was within the shoreline of the bay. The BCDC decision reasoned that the parcel lay almost entirely within the bay because its elevation was beneath the level of the highest recorded high tide since 1965, which was about 5.5 feet above sea level.
Appellants brought this action, seeking a writ of mandate from the superior court overturning the BCDC decision. The superior court denied the petition. Appellants ultimately filed a timely appeal from a resulting judgment.
*1056 Later, BCDC also issued a cease-and-desist order which would require appellants to remove the fill placed on the landward two-thirds of the property in 1976 without a BCDC permit. Appellants brought a separate action in the superior court contesting the cease-and-desist order, which is the subject of a separate appeal (Littoral Development Co. v. San Francisco Bay Conservation etc. Com. (A064842)) pending in this court.
II. DISCUSSION
We conclude we must affirm in part, reverse in part, and remand. BCDC and the superior court correctly ruled that the bayward one-third of the parcel was a low-lying salt marsh within BCDC jurisdiction. As we explain, however, the landward two-thirds of the parcel is not part of any marsh, and was filled and developed and used continually since before 1965 when BCDC came into existence, and is not subject to the jurisdiction of BCDC.
A. The Landward Two-thirds of the Parcel
The landward two-thirds of the parcel was not shown to lie less than 100 feet beyond the level of mean high tide at any time from 1965 to the present. (1a) We will invalidate BCDC's attempt to assert jurisdiction based upon record high tides which in the past have occasionally inundated the parcel. For jurisdictional purposes, the shoreline of the bay commences at the line of mean high tide, except in marshlands. BCDC cannot expand its jurisdiction landward by administratively redefining the shoreline of the bay as the line of maximum inundation of bayshore property by occasional and exceptional high tides occurring since 1965.
We begin with the statute. In 1965, the Legislature enacted the McAteer-Petris Act (§ 66600 et seq.), which sets the limits of BCDC's jurisdiction over the bay. (See Acme Fill Corp. v. San Francisco Bay Conservation etc. Com. (1986) 187 Cal. App.3d 1056, 1068 [232 Cal. Rptr. 348]; Mein v. San Francisco Bay Conservation etc. Com. (1990) 218 Cal. App.3d 727, 732 [267 Cal. Rptr. 252].) As originally enacted, section 66610 defined BCDC's jurisdictional limits over the bay in relevant part as follows: "For the purposes of this title, the San Francisco Bay includes the shoals outside the Golden Gate and the water areas from the south end of the bay to the Golden Gate and to the Sacramento River line ... and, specifically, the marshlands (land lying between mean high tide and five feet above mean sea level); tidelands (land lying between mean high tide and mean low tide); and submerged lands (land lying below mean low tide), but excluding from the marshlands, tidelands and submerged lands those lands which are not subject to tidal action." (Stats. 1965, ch. 1162, § 1, pp. 2941-2942, italics added.)
*1057 Certain features of this language bear reemphasis as they have been carried over into the present version of the statute. BCDC is given jurisdiction over the bay proper, that is, the waters of the bay; over marshland lying lower than five feet above mean sea level; over the area between mean high tide and mean low tide; and over submerged lands lying lower than mean low tide. However, all these areas must be subject to "tidal action"; that is, if a low-lying area otherwise within one of the enumerated categories is not open to the bay and, therefore, does not experience tidal flows, then it is not within BCDC's jurisdiction.
As section 66610 was amended in 1969 (Stats. 1969, ch. 713, § 5, p. 1399), the present statutory language has been reorganized as follows, in relevant part, without changing its meaning for present purposes: "For the purposes of this title, the area of jurisdiction of [BCDC] includes: [¶] (a) San Francisco Bay, being all areas that are subject to tidal action from the south end of the bay to the Golden Gate ... and to the Sacramento River line ..., including all sloughs, and specifically, the marshlands lying between mean high tide and five feet above mean sea level; tidelands (land lying between mean high tide and mean low tide); and submerged lands (land lying below mean low tide). [¶] (b) A shoreline band consisting of all territory located between the shoreline of San Francisco Bay as defined in subdivision (a) of this section and a line 100 feet landward of and parallel with that line...." (Italics added.)
As it is now written, the present statute also uses the line of "mean high tide" to define the shoreline of the bay, except in marsh areas, where a line based upon elevation is used. In this action, it is uncontested that BCDC has a shore zone jurisdiction of 100 feet landward of the shoreline of the bay, as specified in section 66610. The dispute here concerns the drawing of the jurisdictional line representing that shoreline[2] under subdivision (a) of section 66610, from which the 100-foot shoreline band is determined.
BCDC by administrative action, and in the decision under review here, has adopted the position that its jurisdiction over tidal land which is not marshland reaches to the highest high tide which is ever experienced in the bay after 1965, not merely to the line of "mean high tide" as specified in section 66610. To this end, BCDC relied upon a methodology which determined the "Line of Highest Tidal Action" (LHTA) on the parcel, which BCDC then used as its jurisdictional boundary.
BCDC relies here upon a record high tide or LHTA which occurred in 1973 of 5.5 feet above sea level, and contends it has jurisdiction over all that *1058 portion of the parcel in question here which lies below this highest tide level since 1965; and implicitly that the seaward boundary of the 100-foot shoreline band subject to its jurisdiction is coterminous with the point of this highest tide level, rather than the line of mean high tide. Appellants, and the amicus curiae Pacific Legal Foundation, contend that BCDC has thereby arrogated to itself jurisdiction over infrequently flooded dry upland, which is not part of the bay and which the Legislature never intended to place under BCDC jurisdiction.
(2) On this issue of statutory interpretation, we exercise de novo review; we are not bound by the agency's own interpretation of its jurisdiction as specified by legislation, since "the courts are the ultimate arbiters of the construction of a statute." (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 11 [270 Cal. Rptr. 796, 793 P.2d 2].) "Administrative regulations that alter or amend the statute or enlarge or impair its scope are void and courts not only may, but it is their obligation to strike down such regulations." (Morris v. Williams (1967) 67 Cal.2d 733, 748 [63 Cal. Rptr. 689, 433 P.2d 697]; see also Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1388-1389 [241 Cal. Rptr. 67, 743 P.2d 1323] (Dyna-Med).) We conclude that appellants and the amicus curiae are correct as to the meaning of the statute.
(1b) The relevant principles of statutory construction all support this result. First, from a reading of the statute, its plain meaning clearly appears to be that (except as to marshlands, where a specified line of elevation is used) the shoreline of the bay shall be set with reference to the specified level of "mean high tide"; the statute nowhere uses the term "highest tide" or any equivalent term which would support BCDC's argument. The wording of the statute according to its "plain meaning" thus leaves little room for BCDC's inapposite construction. (See California Assn. of Psychology Providers v. Rank, supra, 51 Cal.3d at pp. 12-14.)
BCDC contends the term "subject to tidal action" might be taken to apply to areas up to the level of the highest tide ever recorded. This argument is at variance with the plain meaning of the statute, when considered as a whole. It would attach an unusual new meaning to the term "subject to tidal action" which in its traditional and plain meaning merely is an alternative legal description of tidelands, the area lying between mean low tide and mean high tide and subject to the usual reflux of the tides. (See City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 518-519, fn. 1 & 534 [162 Cal. Rptr. 327, 606 P.2d 362].) The term "tidal action" (italics added) also connotes a regularity of tidal ebb and flow, not a one-time event such as the highest recorded high tide.
*1059 Further, the "tidal action" component in the statutory definition is properly used to exclude those areas which are otherwise within the definition by measurement of elevation, yet are not part of the bay. For instance, if an enclosed reservoir were dug in the center of a city on the bay landward of the 100-foot shoreline band, in order to store drinking water, BCDC would not acquire jurisdiction over the reservoir even if its bed were below the line of mean high tide, since the reservoir would not be subject to the "tidal action" of the bay. The interpretation offered by BCDC attempts to bootstrap the words "tidal action," for lack of which property outside the shoreline band was intended to be excluded from BCDC jurisdiction, into a positive grant of such jurisdiction, conflicting with the line of "mean high tide" specified elsewhere in the statute.
BCDC has promulgated a regulation, printed in California Code of Regulations, title 14, section 10123 (regulation 10123), which purportedly defines the statutory term "subject to tidal action" as used in section 66610: "`Subject to tidal action' means touched by tidal waters at any time on or after September 17, 1965...." BCDC mistakenly relies upon this regulation it promulgated as giving it jurisdiction over all areas above mean high tide, up to the level of the highest recorded high tide and for 100 feet landward of that level. However, the line of mean high tide itself is always, by definition, a line "subject to tidal action"; BCDC's interpretation would render surplusage the Legislature's specification of the term "mean high tide" and would substitute the unwritten term "highest recorded high tide." We must reject this approach: The Legislature obviously meant what it said when it used the term "mean high tide"; we should not adopt an interpretation which renders this term mere surplusage. (See Dyna-Med, supra, 43 Cal.3d at p. 1397; accord, Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 51 [276 Cal. Rptr. 114, 801 P.2d 357].) In short, we read the statute literally as well as littorally.
This statutory reading is also the only one consistent with application of the maxim of jurisprudence, "`Expressio unius est exclusio alterius ....'" (See Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 410 [267 Cal. Rptr. 589, 787 P.2d 996]; Miller v. Superior Court (1990) 221 Cal. App.3d 1200, 1210 [270 Cal. Rptr. 766].) The Legislature has specified that the line of mean high tide shall be used to determine the shoreline of the bay, except upon marshland where a rule based upon elevation (five feet above mean sea level) is applied. If the Legislature had wished to expand this exception to cover the entire bay shoreline, not simply marshland, it presumably would have done so. Moreover, specification of the 5-foot level for marshland obviously undercuts BCDC's argument for a level of 5.5 feet *1060 determined by elevation in all areas. The BCDC interpretation would either render the exception for marshlands entirely surplusage, or would result in the absurd result that marshlands were protected only up to the level of 5 feet, even though other areas were protected up to the level of 5.5 feet. Such clearly was not the legislative intent; the exception for marshlands was obviously intended to provide more, not less protection for the vital salt marshes of the bay, which generally lie above the level of mean high tide. We should not adopt an interpretation which either renders parts of the statute surplusage, or leads to such an absurd result. (See Dyna-Med, supra, 43 Cal.3d at pp. 1392, 1397.)
This interpretation is also the only one consistent with the statutory construction principles of ejusdem generis and noscitur a sociis. (See Dyna-Med, supra, 43 Cal.3d at p. 1391 & fns. 12 & 14.) The term "subject to tidal action" has been itself defined by the Legislature in the statute, as applying to tidal areas below mean high tide and marshes below five feet in elevation. The Legislature would not have so defined these areas in the statute if it had wished instead to accord a much more all-encompassing meaning to the phrase "subject to tidal action." (See ibid.) Reading the statutory terms as a whole and in proper context, we cannot reach any other conclusion.
Moreover, an examination of the case law concerning California tidelands shows that, if the Legislature had wished to enact BCDC's position, it would not have specified the common law boundary of the tidelands, which is mean high tide, but could instead have specified the civil law boundary, which reaches to the point of the highest water. (3) As Mr. Chief Justice Hughes put it in Borax, Ltd. v. Los Angeles (1935) 296 U.S. 10, 22-23 [80 L.Ed. 9, 18, 56 S.Ct. 23], while contrasting the common law measure of the tidelands derived from England, and the civil law measure derived from the Byzantine recodification of Roman law under the Emperor Justinian: "The tideland extends to the high water mark. [Citations.] This does not mean, as petitioners contend, a physical mark made upon the ground by the waters; it means the line of high water as determined by the course of the tides. By the civil law, the shore extends as far as the highest waves reach in winter. Inst. lib. 2, tit. 1, § 3; Dig. lib. 50, tit. 16, § 112. But by the common law, the shore `is confined to the flux and reflux of the sea at ordinary tides.' [Citation.] It is the land `between ordinary high and low-water mark, the land over which the daily tides ebb and flow. When, therefore, the sea, or a bay, is named as a boundary, the line of ordinary high-water mark is always intended where the common law prevails.' [Citation.]"
Thus, California law has always and consistently adopted the common law measure of the tidelands, the area subject to tidal action, as delineating the *1061 area below mean high tide, not the area covered by exceptional floods or record high tides. In County of Lake v. Smith (1991) 228 Cal. App.3d 214, 225 [278 Cal. Rptr. 809], Division Two of this district traced this principle of California law back "at least" as far as the case of Rondell v. Fay (1867) 32 Cal. 354, 363, which reached this very result with reference to the state's ownership of the shore of San Francisco Bay. Five years after Rondell, the Legislature codified this common law presumption in Civil Code section 830 ["Except where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tidewater, takes to ordinary high-water mark...."], and in Code of Civil Procedure section 2077, subdivision Five ["When tide water is the boundary, the rights of the grantor to ordinary high-water mark are included in the conveyance."].
(1c) Whenever the tidal waters of California have been in issue, the Legislature and the courts have always determined that the boundaries of any parcel, the boundaries of the state's sovereign ownership, or the boundaries of the state's trust powers over the shore zone, are all decided with reference to ordinary high tide or mean high tide; no California case or statute has ever used the civil law measure of highest high water urged by BCDC. (See, e.g., United States v. Pacheco (1864) 69 U.S. (2 Wall.) 587, 590 [17 L.Ed. 865], 866] [A parcel bounded by San Francisco Bay was limited by the line of ordinary high tide: "When, therefore, the sea, or a bay, is named as a boundary, the line of ordinary high-water mark is always intended where the common law prevails." (Citing 3 Kent, 427.)]; Rondell v. Fay, supra, 32 Cal. at p. 363; Knight v. U.S. Land Association (1891) 142 U.S. 161, 186 [35 L.Ed. 974, 983, 12 S.Ct. 258] [The tidelands of the bay do not extend into the City and County of San Francisco to the line of highest water: "`The lands which passed to the State upon her admission to the Union were not those which were affected occasionally by the tide, but only those over which tide water flowed so continuously as to prevent their use and occupation.'"]; Borax, Ltd. v. Los Angeles, supra, 296 U.S. at pp. 22-23 [80 L.Ed. at pp. 17-18]; People v. Wm. Kent Estate Co. (1966) 242 Cal. App.2d 156, 159 [51 Cal. Rptr. 215] [A boundary must be determined by the line of mean high tide, not the highest wave or line of water.]; Aptos Seascape Corp. v. County of Santa Cruz (1982) 138 Cal. App.3d 484, 505-506 [188 Cal. Rptr. 191] [There is no public trust right or servitude over land above the level of mean high tide to "the highest high water line" on a tidal parcel, since California now generally follows the common law, not a postulated civil law standard derived from Spanish and Mexican law.].)
(4) It is also significant that in passing the McAteer-Petris Act to safeguard the bay, and in specifying the common law boundary based upon *1062 mean high tide, the Legislature was acting as the "trustee of the tidelands" in California. (City of Berkeley v. Superior Court, supra, 26 Cal.3d at pp. 531-532.) In California, the tidelands and resulting area of state trust rights extend, by definition, only to the level of mean high tide. (See id. at p. 518, fn. 1.) The state is not the trustee of the uplands, and has never purported to grant to BCDC jurisdiction over upland parcels which might occasionally be covered by a tidal wave or other rare event.
(1d) Our review of the case law indicates that, whatever the historic civil law rule may have been, since statehood, whenever the California Legislature or our courts have dealt with boundaries and titles to shoreline property subject to the ebb and flow of tides (and concomitant issues based thereon), the law has defined those seaward boundaries as measured by the line of mean high tide, not as measured by the line of tidal water at the flood or other extraordinary occasional high, or historical highest, tidal level. There is absolutely no indication in the language of the statute or the legislative history of section 66610 that the Legislature intended to enact, sub silentio, a jurisdictional measure based instead upon Roman law principles suited to the relatively tideless enclosed sea of the Mediterranean, rather than the common law measure derived from areas littoral to oceanic waters, as the boundary and baseline demarcating the point from which BCDC's jurisdiction over a 100-foot shoreline band commences. To the contrary, the Legislature specifically enacted the common law measure based upon mean high tide.
BCDC's arguments to the contrary are unpersuasive, and its authorities cited in favor of those arguments fail to support them. BCDC urges primarily that its position is supported by reading out of context certain dicta contained in two decisions by Division Four of this district, Blumenfeld v. San Francisco Bay Conservation etc. Com. (1974) 43 Cal. App.3d 50 [117 Cal. Rptr. 327] (Blumenfeld), and People ex rel. San Francisco Bay etc. Com. v. Gianulias (1986) 188 Cal. App.3d 520 [233 Cal. Rptr. 621] (Gianulias). However, neither of those decisions dealt with the issue presented in this case, i.e., whether BCDC's jurisdiction follows the line of mean high tide, as the Legislature said, or the line of highest tide, as BCDC says.
Blumenfeld decided that certain low-lying land connected to the bay only by a culvert, which culvert lacked a tidal gate and allowed tides to ebb and flow across the subject property, was "subject to tidal action" by artificial means and, therefore, within BCDC jurisdiction. (43 Cal. App.3d at pp. 56-57.) Blumenfeld is, of course, entirely consistent with our conclusion that the phrase "subject to tidal action" in section 66610 was intended to exclude *1063 from BCDC jurisdiction those low-lying areas which are not connected with the bay not to expand BCDC's jurisdiction beyond the line of mean high tide. Otherwise, the case is not on point as it did not deal with the question before us; indeed, the landowner in Blumenfeld conceded the property was subject to tidal action, but contended there should be an implied exception for property connected to the bay through artificial means. (43 Cal. App.3d at p. 54.) That is not the issue here.
Gianulias also did not deal with the question before us. It only held that low-lying land which had previously been separated from the bay by a levee, had later once again become "subject to tidal action" and, therefore, within BCDC jurisdiction, after the levee failed and the land in question was "inundated" which the court noted is "a situation that continues to exist today." (Gianulias, supra, 188 Cal. App.3d at p. 523.) Such is obviously also not the case here; the land here never was permanently "inundated" by the sudden failure of a levee. It is interesting to note that in Gianulias appellants and BCDC had stipulated to a jurisdictional line which established the shore of the bay as including "any portion [of the parcel] lying waterward of the line of mean high tide." Thus, the record of the Gianulias case, of which we take judicial notice (Evid. Code, § 452, subd. (d)), certainly does not support BCDC's argument here.
It is true that Gianulias, supra, 188 Cal. App.3d at page 526, footnote 4, and Blumenfeld, supra, 43 Cal. App.3d at page 57 did cite and approve BCDC's regulation 10123, which provided: "`Subject to tidal waters' means: touched by tidal waters at any stage of the tide at any time on or subsequent to September 17, 1965...." We also see nothing wrong with the actual meaning of this regulation. As interpreted in Blumenfeld and Gianulias, it provides that when, after BCDC's creation in 1965, certain low-lying land which was separated from the bay, but which would be below the line of "mean high tide" as specified in section 66610 (or marshland beneath five feet in elevation), later becomes part of the bay, through artificial connection via a culvert or inundation as by destruction of a levee, the land may come within BCDC's jurisdiction. This is entirely consistent with our interpretation of the phrase "subject to tidal action" as excluding from BCDC's jurisdiction those areas (such as a reservoir in the middle of San Francisco) which are low lying but not tidal. If the regulation were taken to have the meaning BCDC suggests, that BCDC jurisdiction does not generally follow mean high tide and instead follows highest high water, we would reject the regulation as in conflict with the clear wording of section 66610. (See Dyna-Med, supra, 43 Cal.3d at pp. 1392, 1397.)
Certainly, neither Blumenfeld nor Gianulias nor any other reported decision has ever approved of BCDC's attempt to establish its jurisdiction over *1064 lands which are above the level of mean high tide, by BCDC's reliance upon infrequent flooding during storm or flood tides, or record high tides exceeding the level of mean high tide. From the case law, it appears that this is the first time BCDC has attempted to assert jurisdiction over land by relying upon this unusual theory.[3] The statutory language and all existing California authority is clearly to the contrary BCDC's jurisdiction over land which is not marshland is limited by section 66610 to measurement landward for 100 feet from the level of mean high tide. The Legislature having failed to enact BCDC's view of its jurisdiction by amending section 66610, we must deal with the statute as it currently exists.[4]
Our conclusion, therefore, is that the line of mean high tide, not highest high tide, is the statutory seaward boundary of BCDC's 100-foot shoreline band jurisdiction, except in marshlands. Thus, we reject BCDC's argument that the upland two-thirds of appellants' parcel was within the bay. It was simply never shown to lie beneath the level of mean high tide. Lacking evidence that such portion of the parcel lay beneath mean high tide or was within the 100-foot shoreline band measured landward therefrom, BCDC simply relied upon its theory that the inundation of the parcel during rare floods or extraordinary high tides, coupled with the application of its regulation 10123, moved its jurisdiction further landward. We reverse this portion of the trial court's judgment approving the BCDC determination, as it is inconsistent with section 66610.
B. The Bayward One-third of the Parcel
(5) However, a different result obtains as to the bayward one-third of the parcel. As BCDC explicitly found, this unfenced portion of the parcel is a *1065 salt marsh, and came within the statutory definition of "marshland" lying lower than five feet above mean sea level. There is uncontradicted evidence that this portion of the parcel is covered by distinctive species of plants which are characteristic of salt marshes; and the land, even when it is not underwater, is covered with salt deposits, indicating regular tidal inundation. It also appears from the surveys done in the middle and late 1960's and thereafter that this portion of the parcel, up to the fence separating it from the upland portion filled in 1976, has always been below five feet in elevation. Section 66610, thus, provides that the bayward portion of the parcel is within BCDC jurisdiction. We affirm this portion of the ruling below.
C. Other Issues Mooted
Our resolution of the case moots many of the remaining issues, and we need not address them. In particular, we need not address the argument of appellants and the amicus curiae that BCDC jurisdiction determined by the level of the highest high tide would constitute an unconstitutional taking. Among other things, the taking issue is also not ripe for review; there is no final decision taking any land. (See Sierra Club v. California Coastal Com. (1993) 12 Cal. App.4th 602, 617-619 [15 Cal. Rptr.2d 779], review den.; see also Moerman v. State of California (1993) 17 Cal. App.4th 452, 459 [21 Cal. Rptr.2d 329], review den.) The issue presently before us is simply one of determining where BCDC's jurisdiction over private property lies, and our reversal of the judgment as to the upland portion of the parcel considerably blunts the taking argument as well as appellants' contentions that BCDC's decision is arbitrary because their littoral neighbors were treated more leniently, since the neighbors' land was not subjected to BCDC jurisdiction up to the line of the highest tide. (Cf. Lucas v. South Carolina Coastal Council (1992) 505 U.S. ___, ___ [120 L.Ed.2d 798, 112 S.Ct. 2886].) Finally, we perceive no abuse of discretion by the trial court in striking from evidence certain voluminous and irrelevant documents which were not part of the administrative record before BCDC; in any event, we do not believe their admission into evidence as part of the administrative record would have led to a different result. (Cf. Citizen Action to Serve All Students v. Thornley (1990) 222 Cal. App.3d 748, 756, fn. 3 [272 Cal. Rptr. 83].)[5]
*1066 III. DISPOSITION
The portion of the judgment which establishes the shoreline of San Francisco Bay for purposes of BCDC jurisdiction at the LHTA rather than the line of mean high tide, thereby including upland fenced portions of appellants' parcel more than 100 feet from the mean high tide line, is reversed. The portion of the judgment which establishes BCDC shoreline jurisdiction as including the marshland portion of appellants' land lying below five feet above mean sea level, and generally comprising the bayward unfenced portion of the parcel, is affirmed. The matter is remanded to the trial court for the granting of a writ of mandate consistent with, and for further proceedings in accordance with, the views expressed in this opinion. All parties shall bear their own costs on appeal.
King, J., and Haning, J., concurred.
A petition for a rehearing was denied May 26, 1994, and respondent's petition for review by the Supreme Court was denied July 28, 1994.
NOTES
[1] Unless otherwise indicated, all subsequent statutory references are to the Government Code.
[2] Hereafter, we will use the term shoreline as it is defined in section 66610, to signify the line of mean high tide, except in marshlands.
[3] At oral argument, counsel for BCDC was asked whether BCDC jurisdiction would be established over portions of downtown San Francisco if an unusually high tide, on one occasion, covered a substantial portion of Market Street. BCDC's position, relying on regulation 10123, would be that such a unique tidal event would indeed establish its jurisdiction over the portion of downtown San Francisco thus flooded as part of the bay. We find no legislative intent to grant oversight and development protection to BCDC of such areas in such situations.
[4] We also reject BCDC's suggestion that the Legislature's reenactment of the statutes in issue here, after BCDC promulgated regulation 10123 which was later discussed in Blumenfeld and Gianulias, indicated a legislative endorsement of the "highest high tide" theory here propounded. Regulation 10123, properly construed, does not embody such a theory; neither Blumenfeld nor Gianulias dealt with or endorsed such a theory when discussing regulation 10123. Further, in the Gianulias case, BCDC stipulated in pertinent part to the use of the line of mean high tide, not highest high tide, as the jurisdictional boundary. This prior stipulation by BCDC in Gianulias appears to be inconsistent with BCDC's present interpretation of regulation 10123 and, in any event, demostrates that this issue certainly was not before the court in Gianulias.
[5] BCDC theorizes that a rise in sea level of several inches, due to possible global warming, somehow supports its assertion of jurisdiction up to the level of the highest high water. It is impossible to understand how this case has anything to do with global warming. If the sea level does rise, so will the level of mean high tide. BCDC's jurisdictional limit might in the future move marginally landward. However, this is no justification for using a measure not found in the statute as a means of presently asserting jurisdiction over the parcel in issue here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263798/ | 24 Cal.App.4th 1544 (1994)
30 Cal. Rptr.2d 10
In re JOSHUA C. et al., Persons Coming Under the Juvenile Court Law.
SAN JOAQUIN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
v.
WAYNE C., Defendant and Appellant.
Docket No. C016398.
Court of Appeals of California, Third District.
May 11, 1994.
*1545 COUNSEL
Theodore S. Goodwin for Defendant and Appellant.
John S. Cheadle, County Counsel, Steven B. Bassoff and Carol Dahle Stiles, Deputy County Counsel, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
*1546 OPINION
RAYE, J.
In this appeal we address the question of whether dismissal of a dependency action at the dispositional hearing renders the case moot, preventing review of findings upon which continuing orders for custody and visitation are based. We conclude it does not.
Wayne C., the minors' father, appeals from juvenile court orders following a dispositional hearing establishing custody and visitation and terminating the dependency case. The dependency petitions alleged appellant sexually abused his daughter, Stacey (Welf. & Inst. Code, § 300, subd. (d)), and that her twin brother, Joshua, was at substantial risk of suffering similar harm. (Welf. & Inst. Code, § 300, subds. (d), (j).)
Appellant contends there was insufficient evidence to support the jurisdictional findings as to Joshua and the juvenile court erred by refusing to grant certain discovery orders thereby denying him due process. Respondent contends these issues cannot be reached as dismissal of the dependency action rendered the appeal moot.
FACTS
Following filing of the dependency petitions, the 10-year-old children were detained and placed in the custody of their mother who had previously separated from appellant in their pending divorce.
Appellant moved to compel the children to submit to psychiatric examinations. He argued the examinations were necessary to support his claim the children's mother coerced them into accusing him of molestation and to assess whether their diagnosed posttraumatic stress disorder was a result of molestation or the dissolution. Unconvinced the proposed expert testimony would aid its decision on the issue of coercion, the juvenile court found appellant had not established good cause for the examination. The court denied appellant's motion without prejudice to renew but ordered reports and other information from the children's therapist be provided to appellant's expert, Dr. Katz.
At the contested jurisdictional hearing, Stacey testified appellant began engaging in sexually abusive behavior about the time her parents separated. Appellant's activities included provocative photographs of Stacey, and inappropriate touching and showering and sleeping with her. Joshua corroborated Stacey's testimony but reported no overt sexual behavior by appellant directed at him. Appellant admitted he had slept with the children and had washed them while showering together but denied any sexual behavior.
*1547 Dr. Katz testified there was sexually provocative behavior between appellant and his children which could be considered sexual grooming, i.e., manipulation of a child for sexual exploitation. Nevertheless, Dr. Katz believed appellant had only exercised poor judgment and did not fit the profile of a child molester. Dr. Katz further testified the children suffered stress from the divorce and it was possible Stacey, for various reasons, had falsely accused appellant of sexual abuse.
In reaching his conclusions, Dr. Katz reviewed police reports, interviews with appellant's witnesses and one letter from the children's therapist. He also examined and tested appellant. At the court's request, Dr. Katz spoke with the children's therapist during a recess in the jurisdictional hearing. After that conversation, Dr. Katz was inclined to believe the alleged sexual abuse had occurred.
The juvenile court found the jurisdictional facts were established, i.e., appellant had sexually abused Stacey, and her sibling, Joshua, was in danger of being sexually abused.
At the dispositional hearing, the juvenile court awarded sole physical and legal custody of the minors to their mother, with whom they had been living throughout the dependency proceedings, restricted appellant's visitation, and terminated dependency jurisdiction. Appellant promptly filed a notice of appeal challenging the jurisdictional findings.
DISCUSSION
I
(1a) Respondent, citing In re Michelle M. (1992) 8 Cal. App.4th 326 [10 Cal. Rptr.2d 64], contends the appeal is moot because the dependency action was terminated. Respondent argues appellant must first challenge the juvenile court's order terminating jurisdiction before raising issues attacking its jurisdiction.
(2) "As a general rule, `an appeal presenting only abstract or academic questions is subject to dismissal as moot.' [Citation.]" (In re Jody R. (1990) 218 Cal. App.3d 1615, 1621 [267 Cal. Rptr. 746].) However, where a judgment dismissing the dependency action is challenged on appeal the case "is not moot if the purported error is of such magnitude as to infect the outcome of [subsequent proceedings] or where the alleged defect undermines the juvenile court's initial jurisdictional finding. Consequently the question of mootness must be decided on a case-by-case basis." (In re Kristin B. (1986) 187 Cal. App.3d 596, 605 [232 Cal. Rptr. 36], fn. omitted.)
*1548 (1b) Upon termination of the dependency proceedings, the juvenile court entered continuing orders relating to custody and visitation. Relief from, or modification of, these orders is based on the best interest of the child and may be sought either in a pending family law action or, if none is pending, a new action based solely on the orders. (Welf. & Inst. Code, § 362.4; Fam. Code, §§ 3011, 3020 et seq., formerly Civ. Code, §§ 4600, 4608; In re Sarah M. (1991) 233 Cal. App.3d 1486, 1504 [285 Cal. Rptr. 374] [continuing jurisdiction over the child exists in family law court after termination of the dependency proceedings].)
Because the jurisdictional issues were actually litigated in the dependency proceeding, appellant is collaterally estopped from relitigating those issues in the family law court. (Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 724-725 [285 P.2d 636]; In re Marriage of Guardino (1979) 95 Cal. App.3d 77, 87 [156 Cal. Rptr. 883] [paternity determination conclusive in later action].) Thus, while appellant may, upon a showing of changed circumstances, secure modification of the custody and visitation orders in the family law court, such proceedings do not provide a forum for challenging errors made in the jurisdictional hearings in juvenile court. (Cf. In re Linda P. (1987) 195 Cal. App.3d 99, 105 [240 Cal. Rptr. 474].) Even were such an attack available in the collateral action (7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 277, p. 717.), the indirect proceedings would be far more cumbersome than a direct appeal from the dependency action and potentially traumatic to the children. As the jurisdictional findings are the basis for the restrictive visitation and custody orders, error in the former undermines the foundation for the latter.
The fact that the dependency action has been dismissed should not preclude review of a significant basis for the assertion of jurisdiction where exercise of that jurisdiction has resulted in orders which continue to adversely affect appellant. If the jurisdictional basis for orders restricting appellant's visitation with, and custody of, Joshua is found by direct appeal to be faulty, the orders would be invalid. Moreover, refusal to address such jurisdictional errors on appeal by declaring the case moot has the undesirable result of insulating erroneous or arbitrary rulings from review.
Michelle M., relied upon by respondent, is factually distinguishable. In that case, the contested jurisdictional hearing occurred two years before the dependency action was terminated. (In re Michelle M., supra, 8 Cal. App.4th at p. 328.) The appellant in Michelle M. had ample opportunity to challenge the basis of the juvenile court's assertion of jurisdiction prior to termination. Here, appellant challenged the juvenile court's jurisdiction at the first opportunity. (Welf. & Inst. Code, § 395; In re Megan B. (1991) 235 Cal. App.3d *1549 942, 950 [1 Cal. Rptr.2d 177].) In these circumstances, attack on the validity of the dismissal of the juvenile court proceedings is not required.
II, III[*]
.... .... .... .... .... .... .... .
DISPOSITION
The judgment (order) is affirmed.
Sims, Acting P.J., and Scotland, J., concurred.
Appellant's petition for review by the Supreme Court was denied August 25, 1994.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 977(a), this opinion is certified for publication with the exception of parts II and III.
[*] See footnote, ante, page 1544. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263803/ | 24 Cal.App.4th 310 (1994)
29 Cal. Rptr.2d 326
RICHARD B. CORCORAN, Plaintiff and Respondent,
v.
ALBERT AROUH et al., Defendants and Appellants.
Docket No. B067754.
Court of Appeals of California, Second District, Division Four.
April 21, 1994.
*312 COUNSEL
Gary Brown for Defendants and Appellants.
Alfred M. Cedro for Plaintiff and Respondent.
OPINION
HASTINGS, J.
Appellant, Cyrus Mayers (Mayers), appeals from a denial of a motion to vacate judgment and quash writ. Appellants, Cyrus Mayers and Albert Arouh (Arouh), both appeal from an award of sanctions granted after the trial court denied the motion to vacate. We find that the trial court lacked jurisdiction over Mayers and that counsel's appearance on his behalf in the suit was unauthorized. We also find that sanctions were improperly ordered against both appellants. We therefore reverse the ruling of the trial court with regard to appellants.
FACTS
On March 25, 1990, Attorney Alfred M. Cedro (Cedro), on behalf of Richard B. Corcoran (respondent), filed a lawsuit for fraud, breach of contract and common counts against defendants Dick Capen (Capen), Albert Arouh, individually and doing business as A.C. Home Loans, and doing business as Gold Coast Home Loan, Inc.; Cypress Mayers;[1] and Does 1 to 50. The suit sought damages for a loan allegedly made to defendants for investment in a second trust deed.
On June 28, 1991, a "Stipulation for Entry of Judgment Judgment Payable in Installments" was filed with the court. This document was signed by Cedro on behalf of respondent, by Attorney Jeff A. Mann (Mann) purporting to represent all defendants including Mayers, by respondent, by Capen, by Arouh, and purportedly by Cypress Mayers. The judgment was for the sum of $31,480 to be paid in installments unless there was a payment *313 due more than five days late, and then the entire amount would become due. On June 28, 1991, a judgment was entered based upon the stipulation.
Respondent apparently attempted to collect on the judgment against Mayers and on December 26, 1991, Mayers caused to be filed a "Notice and Motion to Vacate Judgment and Quash Writ," alleging that he had no knowledge of the judgment, that he was never served with process, and that he never gave authority to Mann to represent him or make an appearance on his behalf. The motion was supported by a declaration from Mayers which stated as follows: "2. On November 20, 1991, for the first time, I became aware of the existence of a lawsuit brought by Richard Corcoran naming me as a defendant. I was shown a copy of a document entitled `Stipulation for Entry of Judgment Judgment Payable in Installments' which is attached as Exhibit `A' to this declaration. I had never seen that document before, never knew of the existence of that document before, never signed that document and never authorized anyone to sign on my behalf. I was utterly shocked and surprised to learn not only of the existence of the lawsuit, but also ... of the existence of a judgment purporting to be against me. [¶] 3. I have never met Jeff A. Mann, Esq., have never spoken with him, have never authorized anyone to retain him on my behalf, and until shown the document attached as Exhibit `A', never knew he purported to represent me. [¶].... [¶] 6. I have never been served with the summons and complaint in this matter."
The motion was opposed by respondent on the grounds: (1) proper substituted service had been obtained on Mayers by service on Capen; and (2) that respondent relied upon the ostensible authority of Mann to act on behalf of Mayers. In connection with the opposition, Cedro attached his own declaration which stated, in part: "2. On or about June 26, 1990, I caused the Complaint to be served on Defendant MAYERS. Said service was by substituted service upon co-defendant DICK CAPEN.[[2]] [¶] 3. Subsequent to such service I received an answer to the Complaint filed by attorney JEFF A. MANN. Said Answer was filed on behalf of ALL DEFENDANTS. [¶] 4. At no time did Mr. MANN state or indicate in any way that he did not represent Defendant Mayers. In fact, all pleading[s] on file herein will indicate that Mr. MANN expressly represented Defendant Mayers. [¶] 5. It should also be noted that the three individual defendants are Officers of Defendants Corporation GOLD COAST HOME LOAN, INC. and that their attorney JEFF A. MANN IS A DIRECTOR OF SAID CORPORATION. A copy of the Statement by Domestic Stock Corporation filed with the Secretary of State is attached hereto as *314 Exhibit `B' and incorporated by reference herein. [¶] 6. It is clear that all of the defendants are intimately involved in a business together and in fact were involved with their prior counsel in business. It is therefore nonsensical to believe that somehow ONE of these defendants had no knowledge of the events and existence of this suit, the Judgment, etc. [¶] 7. At no time did Defendants' Counsel, Jeff A. Mann, ever contend that no service was made on Defendant Mayers, nor was it represented that Mr. Mann only represented Defendants Capen and Arouh."
Ultimately, the matter was heard and testimony was taken regarding the authority of Mann to act on behalf of Mayers.[3] Mann testified that he spoke with and relied upon instructions given to him by Arouh and it was his understanding that he was representing Mayers; that he prepared and sent the stipulation to Arouh for signatures; that when he received it back he assumed Mayers had signed it but that he had not seen him sign it. Mayers testified that he did not sign the document. He further stated that "I am not a principal, or have any vested interest in that company. And I never signed any checks. I was just a hired employee." Arouh testified that Mayers did not sign the document but that he, Arouh, signed the stipulation on behalf of Mayers and that he, Arouh, assumed he had authority to sign on behalf of Mayers because "Mr. Mayers is the broker for my company, and we have a longstanding business relationship.... [¶] It was my understanding that we had an agreement that I could." (Italics added.) On cross-examination by Mayers, Mann stated that he knew Mayers was "just acting as a broker for Mr. Arouh."
At the end of the hearing the court denied the motion stating: "The stipulated judgment is going to stand. I am not going to void it, and I am not going to set it aside. [¶] There is at least ostensible agency for anything that was done against Mr. Mayers. He is involved to the same extent of it." The court then issued sanctions against defendants, including Mayers, with the following statement: "The Court is shocked at some of the conduct that has gone on. I have had to Mirandize to make sure that people weren't ultimately telling me a fib, for want of a better word. [¶] I reserve [sic] sanctions on all counsel, including the plaintiff's counsel, for some time. [¶] You are going to pay $500 personally, sanctions to Mr. Corcoran and his attorney. And the other two will each pay $500. That's it." The minute order reflects the *315 following regarding sanctions: "Mr. Mann, Mr. Arouh, and Mr. Mayers each are ordered to pay the sum of $500 to plaintiff and his counsel as and for sanctions."
This appeal was timely filed.
DISCUSSION
A. The question of service:
(1) Respondent contends that he obtained valid substituted service over Mayers. Attached to his opposition was the proof of service indicating service by delivery to Dick Capen at 5451 Laurel Canyon Boulevard, North Hollywood, California. (See fn. 1, ante.) However, also attached to the opposition as exhibit "B" was the statement of Domestic Stock Corporation for Gold Coast Home Loan indicating "Secretary Cyrus S. Mayers, 928 N. San Vicente, Los Angeles, CA 90069." None of the addresses in the statement match the address for Laurel Canyon Boulevard. There is no indication in the record that Mayers had any connection with that address.
It is crucial that a connection be shown between the address at which substituted service is effectuated and the party alleged to be served. (Zirbes v. Stratton (1986) 187 Cal. App.3d 1407, 1416-1417 [232 Cal. Rptr. 653].) There is no indication in the record to tie in Mayers to the address where he was allegedly served. The statement of Domestic Stock Corporation does not identify Capen as being connected with Gold Coast Home Loan, Inc., and the Laurel Canyon address is not identified on this form. Even assuming that Capen is a business colleague of Mayers, there is no indication that service on Capen would give notice to Mayers. (Zirbes v. Stratton, supra, 187 Cal. App.3d 1407.) We find that the alleged substituted service was ineffective to give notice to Mayers.
B. Authorization of Mann to act on behalf of appellant:
(2) The evidence is uncontradicted that Mann had no express or actual authority from Mayers to make an appearance on behalf of him. He "understood" from Arouh that he was to appear for all defendants. Arouh felt that because he had a longstanding relationship with Mayers and because Mayers was the broker for his business that he could bind Mayers. There is no evidence in the record that Mayers was involved in the particular transaction giving rise to the suit. There is no evidence in the record that anyone ever spoke with Mayers about the suit. In fact, the uncontradicted evidence is that Mayers was not aware of the suit. Therefore, the only evidence that exists to *316 support the court's finding of ostensible agency is the fact that Mann made an appearance on behalf of Mayers and Arouh's conclusion that he felt he could act to bind Mayers. As a matter of law, this evidence does not support the court's finding of ostensible agency to bind Mayers.
It is true that, absent evidence of lack of authority, an ostensible agency may be found to exist when counsel makes an appearance for and purports to act on behalf of a litigant. (Phelps v. Kozakar (1983) 146 Cal. App.3d 1078, 1082-1083 [194 Cal. Rptr. 872].) However, contrary to the showing in Phelps, supra, Mayers did present to the court uncontradicted evidence directly disputing any authority of Mann to act on his behalf in this case. Also, Arouh's belief that he had authority to act on behalf of Mayers was insufficient to confer authority to retain Mann to act on behalf of Mayers individually. (Zirbes v. Stratton, supra, 187 Cal. App.3d at p. 1414, citing Promotus Enterprises, Inc. v. Jiminez (1971) 21 Cal. App.3d 560, 565-566 [98 Cal. Rptr. 571].)
C. The sanctions:
(3) The trial court made no mention of the legal authority upon which sanctions were based. The proceeding before the court did not relate to discovery, and the order was not in favor of the county; therefore, we conclude that the court purported to act based upon California Code of Civil Procedure section 128.5 as compared to the Discovery Act or Code of Civil Procedure section 177.5.
Code of Civil Procedure section 128.5, subdivision (c) requires that "[a]n order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order." In that regard, the court's minute order states: "Mr. Mann, Mr. Arouh, and Mr. Mayers each are ordered to pay the sum of $500 to plaintiff and his counsel as and for sanctions." The minute order fails to recite the conduct or circumstances justifying sanctions. Therefore it is defective. Reference to the reporter's transcript is not helpful. It merely states a conclusion: "The Court is shocked at some of the conduct that has gone on. I have had to Mirandize to make sure that people weren't ultimately telling me a fib, for want of a better word." The court fails to delineate the conduct with specificity and we can only conclude that the court was referring to the subject matter of the motion. We have found that the motion was well taken. Certainly, as to Mayers, the sanctions cannot stand.
The evidence reflects that Arouh felt that he had authority to act on behalf of Mayers. He so advised Mann. Mann acted on the authority given to him by Arouh. While it may have been more appropriate to obtain some indicia *317 from Mayers that Arouh was authorized to speak for Mayers, we cannot find that either Arouh or Mann acted frivolously or in bad faith as those terms are used in Code of Civil Procedure section 128.5. We find that the record reflects no conduct which justifies sanctions.
DISPOSITION
The order of the trial court denying Mayers's motion to vacate the judgment and to quash the writ and granting sanctions against Mayers and Arouh is reversed. The matter is remanded to the trial court with orders to enter a new order granting the motion vacating the judgment as to Mayers only, and vacating the order relating to sanctions as to Mayers and Arouh. Costs are awarded to appellants.
Woods (A.M.), P.J., and Klein (Brett), J.,[*] concurred.
NOTES
[1] The complaint and all legal documents filed in the case refer to Cypress Mayers. This includes documents prepared by Mayers's supposed counsel as well. Mayers advises that his true name is Cyrus Mayers.
[2] Attached as exhibit A to his declaration is a proof of service for "CYPRESS MAYERS" indicating delivery on "DICK CAPEN ... 5451 LAUREL CANYON BLVD., NORTH HOLLYWOOD, CA 91607." This document is not referenced in his declaration but it is apparently proof of the substituted service relied upon by respondent.
[3] The matter was continued a number of times and finally heard on April 28, 1992. The court was concerned regarding perjury and apparently advised all parties of their Fifth Amendment right not to testify. Also, counsel for Mayers, Gary Brown, had called the court to indicate that he would be late, approximately 2 p.m., instead of 1:30. At the appointed hour Mr. Brown was still not present so the court proceeded without him and took testimony from Mayers, Mann and Arouh. Brown apparently arrived at approximately 2:11 but the court concluded the matter without allowing him to participate.
[*] Judge of the Municipal Court for the Los Angeles Judicial District sitting under assignment by the Chairperson of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263811/ | 24 Cal.App.4th 1750 (1994)
30 Cal. Rptr.2d 217
RICHARD D. NORTON, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; ZACK EIN et al., Real Parties in Interest.
Docket No. B079742.
Court of Appeals of California, Second District, Division Seven.
May 19, 1994.
*1753 COUNSEL
Hawkins, Schnabel, Lindahl & Beck, George M. Lindahl and Allison D. Cato for Petitioner.
No appearance for Respondent.
Ruben, Crispi & McGonigle, Steven J. Ruben and Patrick F. Reynolds for Real Parties in Interest.
OPINION
JOHNSON, J.
In this action, plaintiffs are suing petitioner for legal malpractice in the settlement of their suit for property damage against the City of Palos Verdes (hereafter the City). Petitioner demanded production of all documents containing the terms and conditions of plaintiffs' recovery from their own insurer for the same property damage that was the subject of the suit against the City. Citing the collateral source rule and other grounds, plaintiffs refused to produce the requested documents. The trial court denied petitioner's motion to compel production. Petitioner seeks a writ of mandate directing the trial court to vacate its ruling and to issue an order compelling plaintiffs to comply with his discovery demand.
We will issue a writ ordering the trial court to vacate its ruling and to reconsider the question whether the demanded material could be admissible or could reasonably lead to the discovery of admissible evidence and, if it could, to order plaintiffs to produce the material.
*1754 FACTS AND PROCEEDINGS BELOW
Plaintiffs Zack and Ellen Ein, real parties in interest, owned a home in the City. A series of landslides did substantial damage to the Eins' home and they brought an inverse condemnation action against the City. Defendant Richard Norton, petitioner, represented the Eins in the Palos Verdes lawsuit.
While the Palos Verdes lawsuit was pending, the Eins brought an action against State Farm Insurance Company for failing to indemnify them for the same property damage at issue in the Palos Verdes suit. A different attorney represented the Eins in the State Farm lawsuit.
In October 1989, the Eins settled their suit against the City by transferring title to the property to the City in return for $1.85 million and a "limited life estate." In May 1990, the Eins settled their lawsuit against State Farm for an undisclosed sum.
Following settlement of their suits against the City and State Farm, the Eins initiated the present legal malpractice action against Norton. The Eins allege Norton was negligent in negotiating the settlement terms with the City resulting in adverse tax consequences and that he pressured the Eins into accepting the amount of the settlement.
Norton served a demand for production of documents on the Eins. (Code Civ. Proc., § 2031.) The demand called on the Eins to produce "any and all documents, including but not limited to a complete copy of the settlement agreement, setting forth the terms and conditions of settlement of the [State Farm lawsuit]."
The Eins response to this demand for production stated the only document containing the terms and conditions of the settlement agreement was the agreement itself and that they would not produce this document. They based their refusal to produce the document on the following grounds: (1) the settlement agreement with State Farm is irrelevant to any matter in the present malpractice action against Norton; (2) the settlement agreement will not lead to the discovery of any admissible evidence in this action; (3) discovery of the Eins' private financial information contained in the settlement agreement would violate their right to privacy; and (4) discovery of the settlement agreement is barred by the attorney-client privilege and the attorney work product rule.[1]
Norton moved for an order compelling production of the State Farm settlement agreement. The trial court denied the motion and Norton filed this *1755 petition for writ of mandate. We issued an alternative writ in order to consider the application of the collateral source rule to a legal malpractice action and the question whether the settlement agreement could be discoverable even if the collateral source rule applies.
DISCUSSION
I. The Amount of the Eins' Settlement With State Farm Is Not Admissible for the Purpose of Mitigating the Damages the Eins Would Otherwise Recover From Norton.
Code of Civil Procedure section 2017, subdivision (a) provides in relevant part, "[A]ny party may obtain discovery regarding any matter not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (1) Thus, in order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending action, and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.
(2a) Although Norton's discovery demand was for documents containing the "terms and conditions" of the Eins' settlement with State Farm, the parties have primarily focused on the narrow question whether the amount of the settlement would be admissible at trial and, therefore, discoverable.
The Eins contend evidence of the amount of their settlement with State Farm is inadmissible in the present action under the collateral source rule. (3) The collateral source rule provides "... if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor." (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6 [84 Cal. Rptr. 173, 465 P.2d 61, 77 A.L.R.3d 398].) Thus, under the collateral source rule, evidence of compensation from an independent third party is not admissible to mitigate damages. (Acosta v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 19, 25-26 [84 Cal. Rptr. 184, 465 P.2d 72].)[2] (2b) No reported decision in *1756 California has decided the question whether the collateral source rule applies to prevent the mitigation of damages in a legal malpractice action.[3]
In Helfend v. Southern Cal. Rapid Transit Dist., supra, our Supreme Court engaged in an extensive review of the policy arguments for and against the collateral source rule and reaffirmed its adherence to the rule as it has developed in California. In the context of insurance payments for medical treatment, where the rule is most frequently applied, the court stated the collateral source rule "embodies the venerable concept that a person who has invested years of insurance premiums to assure his medical care should receive the benefits of his thrift. [¶] If we were to permit a tortfeasor to mitigate damages with payments from plaintiff's insurance, plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. Defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance." (2 Cal.3d at pp. 9-10.) The court also noted insurance policies increasingly provide for either subrogation or refund of benefits upon recovery from the tortfeasor thus transferring the risk from the victim's insurer to the tortfeasor by way of the victim's tort recovery. (Id. at pp. 10-11.) The court explained that viewed from this perspective the collateral source rule does not permit the plaintiff a double recovery as critics of the rule have charged. (Ibid.) The court concluded its analysis of the rule by stating: "We therefore reaffirm our adherence to the collateral source rule in tort cases in which the plaintiff has been compensated by an independent collateral source such as insurance, pension, continued wages, or disability payments for which he had actually or constructively ... paid or in cases in which the collateral source would be recompensed from the tort recovery through subrogation, refund of benefits, or some other arrangement." (Id. at pp. 13-14.)
Norton does not dispute the fact the collateral source rule would have barred the City from introducing evidence of the Eins' insurance proceeds to mitigate the City's damages in the underlying lawsuit. He argues, however, *1757 the policy reasons which bar the City from introducing evidence of the Eins' insurance settlement do not apply to the introduction of such evidence on the issue of damages in the present legal malpractice action. The Eins, he points out, were insured against the risk of property damage. They were not insured against the risk of damages from their attorney's negligence. Thus, the insurance benefits the Eins received were not as a result of their "providence" and foresight in protecting themselves against the risk of attorney malpractice. (Cf. Helfend v. Southern Cal. Rapid Transit Dist., supra, 2 Cal.3d at pp. 9-10.) Furthermore, he argues, the subrogation rationale for the collateral source rule is not applicable here as there is no showing the Eins' recovery from Norton will be passed-through to State Farm.
Norton's argument has some merit. The "subrogation" rational relied on by the court in Helfend may not apply here. (But see post, pp. 1761-1762.) We also find in Helfend a note of caution against expanding the collateral source rule beyond its settled applications. The court stated, "We agree with Professor Fleming's observation ... that `double recovery is justified only in the face of some exceptional, supervening reason, as in the case of accident or life insurance, where it is felt unjust that the tortfeasor should take advantage of the thrift and prescience of the victim in having paid the premium.' ..." (2 Cal.3d at p. 10, citation omitted.) Furthermore, the court expressly declined to "consider or determine the appropriateness of the rule's application in the myriad of possible situations which we have not discussed or which are not presented by the facts of this case." (2 Cal.3d at p. 6, fn. 3.)
On the other hand, it can be argued Norton interprets the scope of the collateral source rule too narrowly. Surely, the rule as it is commonly stated is broad enough to cover the payments the Eins received from their insurer. That payment constituted "compensation for injuries" from a "source wholly independent of the tortfeasor." (See Helfend v. Southern Cal. Rapid Transit Dist., supra, 2 Cal.3d at p. 6; and see Rest.2d Torts (1977) § 920A.) The proceeds the Eins received from their insurer did represent a return on investment. (2 Cal.3d at p. 10.) Furthermore, not every case in which a California court has applied the collateral source rule involved insurance payments from the plaintiff's insurer or even anticipation of the injury which occurred. In Lewis v. County of Contra Costa (1955) 130 Cal. App.2d 176 [278 P.2d 756], the court held the collateral source rule prohibited evidence that at the time of the accident plaintiff had accumulated sufficient sick leave to cover the period of his disablement. In Philip Chang & Sons Associates v. La Casa Novato (1986) 177 Cal. App.3d 159 [222 Cal. Rptr. 800] the court held the collateral source rule barred evidence that under its Federal Housing Authority mortgage plaintiff could raise its tenants' rents to recover damages caused by a leaky roof.
*1758 Be that as it may, we have concluded the application of the collateral source rule to this case turns not on policy but on practicality. As we shall explain more fully below, due to the unique nature of a legal malpractice action, being the trial of a "suit within a suit," the defendant attorney stands in the shoes of the underlying tortfeasor insofar as the collateral source rule is concerned. Thus, the collateral source rule applies indirectly in a way which makes evidence of payments from a collateral source irrelevant on the question of damages.
(4) In a legal malpractice action, the attorney is liable for all the damages proximately caused by the negligent act or omission. (Smith v. Lewis (1975) 13 Cal.3d 349, 362 [118 Cal. Rptr. 621, 530 P.2d 589, 78 A.L.R.3d 231].) Where the attorney's negligence does not result in a total loss of the client's claim, the measure of damages is the difference between what was recovered and what would have been recovered but for the attorney's wrongful act or omission. (Lally v. Kuster (1918) 177 Cal. 783, 791 [171 P. 961]; Sprigg v. Garcin (1980) 105 Cal. App.3d 869, 874 [164 Cal. Rptr. 677]; 2 Mallen & Smith, Legal Malpractice (3d ed. 1989) § 24.36, p. 520.)
Thus, in a legal malpractice action, if a reasonably competent attorney would have obtained a $3 million recovery for the client but the negligent attorney obtained only a $2 million recovery, the client's damage due to the attorney's negligence would be $1 million the difference between what a competent attorney would have obtained and what the negligent attorney obtained.
(2c) The amount of damages remains the same even if the client received an insurance payment from its insurer covering some or all of the injury in the underlying action. This is because, under the collateral source rule, the insurance payment could not have been used to reduce the recovery from the tortfeasor in the underlying action. Since the insurance payment is not taken into account in determining the award of damages in the underlying action, the client in the above example would still have lost $1 million the difference between the $3 million the competent attorney would have recovered and the $2 million the negligent attorney recovered.
To see how the collateral source rule relates to the computation of damages in the present case, assume the Eins can prove that if they had gone to trial on their claim against the City a reasonably competent attorney would have obtained a judgment for $3 million but because of Norton's negligence in settling the case they only received $2 million. The Eins' recovery in their action against the City would not have been affected by the *1759 fact they received a $1 million insurance settlement from State Farm. Therefore, the Eins' damages in the present legal malpractice action would be $1 million: the difference between what they would have recovered through competent legal representation and what they in fact received because of Norton's negligent representation. In the example given above, the Eins could have kept the $1 million insurance settlement and still have received the full $3 million judgment against the City compared to the $2 million settlement arranged by Norton: a loss of $1 million.
As the foregoing examples illustrate, the loss suffered by the clients for purposes of a malpractice claim is the same whether or not they received an insurance payment covering some or all of the loss they suffered in the underlying action. Therefore, evidence of such a payment is logically irrelevant to the determination of damages in the malpractice action.[4]
It could be argued the result we reach in this case would allow the plaintiff in a legal malpractice action a "double recovery."[5] We disagree. To the extent there is a double recovery in this action, it is the result of the fact the plaintiffs in the underlying action against the City would have been permitted by the collateral source rule to retain the full amount of the damage award without an off-set for any benefits paid by their insurer. The result we reach in this case merely allows the plaintiffs in a legal malpractice action to be made whole. The plaintiffs receive no more and no less than they would have received if there had been no malpractice.
II. The Trial Court Should Determine Whether the Terms and Conditions of the Settlement Agreement Are Admissible in Evidence or Whether Their Discovery Appears Reasonable Calculated to Lead to the Discovery of Admissible Evidence.
(5a) Our holding the amount of the Eins' insurance settlement is not admissible for purposes of reducing their damages only eliminates one *1760 possible theory supporting discovery. We must still determine whether the terms and conditions of the settlement agreement, including the amount of the settlement, are discoverable under some other theory. (6) The answer to this question depends on whether the terms and conditions of the settlement agreement are relevant to the subject matter of the pending action and whether they are directly admissible or could reasonably lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017, subd. (a).)
Relevancy to the subject matter of the litigation is a much broader concept than relevancy to the precise issues presented by the pleadings. (Pacfic Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172 [84 Cal. Rptr. 718, 465 P.2d 854].) "The `subject matter of the action' is the circumstances and facts out of which the cause of action arises; it is the property, contract, or other thing involved in the dispute; it is not the act or acts which constitute the cause of action, but describes physical facts in relation to which the suit is prosecuted." (Darbee v. Superior Court (1962) 208 Cal. App.2d 680, 688 [25 Cal. Rptr. 520].) Information is "relevant to the subject matter" if its discovery will tend to promote settlement (Pettie v. Superior Court (1960) 178 Cal. App.2d 680, 688 [3 Cal. Rptr. 267]) or assist the party in preparing for trial (Davies v. Superior Court (1984) 36 Cal.3d 291, 301 [204 Cal. Rptr. 154, 682 P.2d 349]). (5b) Clearly, discovery of the terms and conditions of State Farm's settlement of the Eins' property damage claim could assist in reaching a settlement or preparing for trial in the present action. Therefore, the first prong of the discoverability test is met.
The second prong of the discoverability test can be satisfied by showing the information sought to be discovered is itself admissible in evidence.
The admissibility of evidence often turns on the purpose for which it is offered. A well-known example is the distinction between evidence of an out-of-court statement offered to prove the truth of the matter stated and an out-of-court statement offered to prove some other fact. The former statement is inadmissible unless it comes within an exception to the hearsay rule; the latter statement is admissible unless barred by some other rule of evidence. Similarly, in cases where the collateral source rule bars evidence of insurance benefits for the purpose of mitigating damages it does not necessarily bar introduction of such evidence for some other purpose. (Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 733 [94 Cal. Rptr. 623, 484 P.2d 599, 47 A.L.R.3d 224].)
(7) Furthermore, in a discovery dispute over admissibility of evidence, the issue is the admissibility of the evidence vel non. The possibility evidence otherwise admissible might be excluded at trial under Evidence *1761 Code section 352 or some other evidentiary objection is not a relevant consideration for purposes of ruling on a discovery motion. (Davies v. Superior Court, supra, 36 Cal.3d at p. 301.)
(8) Information which is not directly admissible in the action is nevertheless discoverable if it is reasonably calculated to lead to the discovery of admissible evidence.
In accordance with the liberal policies underlying the discovery procedures, California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. (Pacific Tel. & Tel. Co. v. Superior Court, supra, 2 Cal.3d at p. 172; Pettie v. Superior Court, supra, 178 Cal. App.2d at p. 687.) As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. (Pacific Tel. & Tel. Co., supra, 2 Cal.3d at p. 172.) Furthermore, California's liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. (Id. at p. 173.) In doing so, the courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party's case or to efficacious settlement of the dispute. (See 2 Hogan, Modern Cal. Discovery (4th ed. 1988) § 11.2, p. 11; and see Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376 [15 Cal. Rptr. 90, 364 P.2d 266].) The courts have also taken the view that wherever possible objections to discovery should be resolved by protective orders addressing the specific harm shown by the respondent as opposed to a more general attack on the "relevancy" of information the proponent seeks to discover. (Pacific Tel. & Tel., supra, 2 Cal.3d fn. 11 at p. 171; Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at p. 392; West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418 [15 Cal. Rptr. 119, 364 P.2d 295].)
(5c) Bearing these principles in mind, we conclude it is possible the terms and conditions of the State Farm settlement agreement could be, or could lead to, admissible evidence. The requested information could result in evidence of the extent of the Eins' injury from the alleged malpractice, their motive in bringing the malpractice action, or their bias and credibility as witnesses. For example, the settlement agreement might provide State Farm would make a future payment to the Eins up to a certain amount depending on the amount they recover from Norton. In the settlement with State Farm the Eins might acknowledge the two settlements together constitute a complete satisfaction for all their injuries. Or, the settlement agreement might *1762 provide that in return for State Farm's payment of their property damage claim the Eins agree to sue Norton for malpractice in obtaining an inadequate settlement with the City and to subrogate State Farm to that claim or turn over the proceeds of any recovery to State Farm.[6]
Not having seen the settlement agreement we can do no more than suggest hypotheticals in which the agreement would be discoverable. However, the trial court did not view the document either and therefore could not make an informed decision about whether some or all of it was discoverable. The appropriate remedy, we believe, is to remand this matter to the trial court with directions to review the State Farm settlement agreement in camera and determine, consistent with the views expressed in this opinion, whether some or all of it should be produced to Norton and under what restrictions, if any.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its ruling denying petitioner's motion to compel production of documents and ordering the court to reconsider its ruling in light of the views expressed in this opinion and an in camera inspection of the settlement agreement between respondents and the State Farm Insurance Company and to determine whether some or all of said settlement agreement should be ordered produced to petitioner and under what conditions or restrictions, if any.
Lillie, P.J., and Woods (Fred), J., concurred.
NOTES
[1] The Eins did not urge the latter two grounds in the trial court or here.
[2] We discuss in part II the extent to which such payments may be admissible to prove some other fact.
[3] In Kirtland & Packard v. Superior Court (1976) 59 Cal. App.3d 140, 145 [131 Cal. Rptr. 418], the court held the collateral source rule did not apply to a legal malpractice action in which the plaintiff was a defendant in the underlying action because he failed to establish he was an "injured party" and the insurance company which made the payment at issue was not "wholly independent" of the defendant attorneys.
Two courts in other jurisdictions have addressed this issue. In Houghton v. Leinwohl (1977) 135 Vt. 380 [376 A.2d 733, 737], the court, without discussion, held the rule applied. Horn v. Moberg (1993) 68 Wn.App. 551 [844 P.2d 452, 458], expressed the same view in dictum.
In Bourke v. Warren (1982) 118 Mich. App. 694 [325 N.W.2d 541, 543], an attorney was allowed to introduce evidence the plaintiffs had suffered no injury as a result of his alleged malpractice because they recovered the value of their loss in a separate suit against their own property insurer. However, the opinion does not mention the collateral source rule.
[4] We recognize there could be situations, not present here, in which a collateral source payment might be relevant in a legal malpractice action based on negligence in negotiating a settlement. If, for example, the payment was received while settlement negotiations were underway in the underlying action, receipt of that payment might well influence what the parties were willing to offer and accept in settlement. (See 4 Harper et al., The Law of Torts (2d ed. 1986) § 25.22, p. 669.) Similarly, knowledge that the plaintiffs had received an insurance payment covering some or all of their loss might be relevant to the reasonableness of their attorney's evaluations and recommendations regarding the opposing party's settlement offers. (See 2 Mallen & Smith, supra, § 24.36, pp. 520-521.) Note, however, this evidence would be relevant to the question whether the attorney was negligent in negotiating the settlement, not to the question of the amount of damages suffered by the client assuming negligence is established. The foregoing examples are not applicable in the present case because the settlement was negotiated by a different attorney and was not procured until approximately seven months after the Eins settled with the City.
[5] See 1 Mallen and James, supra (supp. 1993) section 16.20, pages 353-354.
[6] Norton argues the terms and conditions of the settlement are discoverable because they could relate to the Eins' state of mind at the time they settled their action against the City. We find this argument unpersuasive. It will be recalled the settlement with the City was consummated approximately seven months before the settlement with State Farm. It is highly unlikely the Eins could have had the State Farm settlement in mind when they entered into a settlement with the City seven months earlier. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263816/ | 461 Pa. 420 (1975)
336 A.2d 609
The PENNSYLVANIA TURNPIKE COMMISSION, Appellant,
v.
SANDERS & THOMAS, INC., Appellee.
Supreme Court of Pennsylvania.
Argued May 22, 1974.
Decided April 17, 1975.
*421 *422 *423 *424 Kenneth M. Cushman, Philadelphia, for appellant.
Gilbert Stein, Marvin Comisky, Blank, Rome, Klaus & Comisky, Alan C. Gershenson, William E. Taylor, III, Philadelphia, for Sanders & Thomas, Inc., appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
POMEROY, Justice.
On June 30, 1969, the Pennsylvania Turnpike Commission [hereinafter the "Commission"] and Sanders & Thomas, Inc. [hereinafter "S & T"] entered into a written contract under the terms of which S & T was to complete plans and specifications in connection with the construction of toll collection facilities at several interchanges on the Pennsylvania Turnpike. The contract contained the following arbitration provision:
"All questions or disputes respecting any matter pertaining to or arising out of this agreement or any part thereof or any breach thereof shall be referred to a Board of Arbitration acting under the provisions of the Act of April 25, 1927, P.L. 381, as amended, consisting of a representative selected by each of the parties hereto and a third Arbitrator selected by them. In the event that the two Arbitrators selected by the parties are unable to agree as to the third Arbitrator, such third Arbitrator shall be designated by the American Arbitration Association."
During the course of performance of the contract disputes arose as to the amount of compensation to which S & T was entitled. These disputes culminated in the refusal of the Commission to pay S & T's final bill of $557,536.14, whereupon S & T demanded arbitration in accordance with the contract. A board of arbitrators was selected, and hearings were conducted by the arbitrators *425 on March 22 and 23, 1973. On the latter date the arbitrators unanimously awarded to S & T the sum of $557,474 together with interest thereon computed at a rate of six per cent. per annum from March 1, 1972.
The Commission then filed in the Commonwealth Court[1] a petition to vacate, or, in the alternative, to modify the award.[2] In this petition the Commission asserted that the arbitrators lacked the authority to decide the matters submitted to them and that the arbitrators had made various errors in conducting the proceedings and in computing the award. The Commonwealth Court resolved all questions against the Commission, affirmed the award and entered judgment in favor of S & T. 12 Pa.Cmwlth. 145, 316 A.2d 127 (1970). This appeal followed.[3]
In this Court the Commission has narrowed its challenge to the arbitration award to two issues: whether the arbitrators had the authority to decide the questions presented to them, and whether the arbitrators erred in fixing March 1, 1972, a date which preceded the award, as the time from which interest on the award would be allowed.
I.
As indicated at the outset, the arbitration here challenged by the Commission was conducted pursuant to a contract to which it was a party,[4] and which provided for arbitration of disputes by "a Board of Arbitration acting *426 under the provisions of the Act of April 25, 1927, P.L. 381, as amended." Notwithstanding that the Commission so agreed, that it cooperated in the naming of arbitrators and that it participated fully in the arbitration hearings, all without any suggestion that the proceeding was in any way questionable, it now seeks to vacate the award on the ground that the proceeding was a nullity and the award void. The Commission asserts that no doctrine of waiver or estoppel is applicable because the defect is one of jurisdiction. This conclusion is based on the proposition that the arbitration act of 1927[5] [hereinafter the "Act of 1927"] was repealed in part when, ten years after its enactment, the legislature adopted the arbitration of claims act of 1937[6] [hereinafter the "Act of 1937"]. The Commission argues further that since S & T did not invoke arbitration by the only permissible method, viz., that provided by the Act of 1937, it is now without remedy of any sort by reason of the Commonwealth's immunity to suit, which the Commission, as an instrumentality of the Commonwealth, shares.[7] Constitution of Pennsylvania, Art. I, Sec. 11, P.S.; see Rader v. Pennsylvaia Turnpike Commission, 407 Pa. 609, 182 A. 2d 199 (1962) (upholding the Commission's immunity from liability in trespass actions arising out of negligence of employees of Commission in maintenance of the highway). The theory has a certain plausibility, but we are persuaded that it is not sound, and in the context of this case is unconscionable; like the Commonwealth Court, we reject it.
*427 The backbone of the Act of 1927 is the flat and unequivocal stipulation of its first section: "A provision in any written contract, except a contract for personal service, to settle by arbitration a controversy thereafter arising out of such contract, or out of the refusal to perform the whole or any part thereof, . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract" (§ 1, 5 P.S. § 161). The remaining provisions of the Act are in aid of that basic section, setting forth enforcement rights and the procedural framework of the arbitrational process. They need not be set out in detail in this opinion. Suffice it to say that the Act of 1927 provides for the ad hoc appointment of boards of arbitrators or an umpire in such manner as the parties shall agree, or, in the absence of an agreement, for appointment of such persons by the court of common pleas (§ 4, 5 P.S. § 164); the courts of common pleas may adopt rules of procedure and practice which shall govern the arbitration proceedings (§ 5, 5 P.S. § 165); the arbitration award may be confirmed, vacated, or modified by the court at any time within one year after the award is made, and judgment thereupon entered in conformity with an order confirming, modifying or correcting an award (§§ 9-14, 5 P.S. §§ 169-174). Of particular importance with respect to contracts entered into by "public bodies" is Section 16, which provides as follows:
"The provisions of this act shall apply to any written contract to which the Commonwealth of Pennsylvania, or any agency or subdivision thereof, or any municipal corporation or political division of the Commonwealth shall be a party." (5 P.S. § 176).[8]
*428 On the face of this Act, therefore, it would appear not only that the Commission was acting within its statutory authority by including the arbitration clause in its contract with S & T and thereafter proceeding to arbitration in accordance with the contract, but also that the Commission was statutorily required to do exactly what it did.
The Act of 1937 is more elaborate. A permanent Board of Arbitration of Claims is established, the three members of which are appointed by the Governor. One member of the Board must be learned in the law and one is required to be a civil engineer. The third member is to be a citizen and resident of the Commonwealth who is neither a lawyer nor an engineer (Act of 1937, § 1, 72 P. S. § 4651-1). The Board has no power to decide claims presented more than six months after they have accrued (§ 5, 72 P.S. § 4651-6). The hearings before the Board are public and are governed in general by the Pennsylvania Rules of Civil Procedure (§ 8, 72 P.S. § 4651-8). Appeals from awards must be taken within thirty days after the awards are made (§ 8(b), 72 P.S. § 4651-8(b)).
Appellant argues that Section 16 of the Act of 1927, supra, has been impliedly repealed by Section 4 of the Act of 1937, 72 P.S. § 4651-4, which provides that the Board of Arbitration of Claims "shall have jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more." It is appellant's position that this language sets up the Board of Arbitration of Claims as the sole vehicle for the resolution of claims of $300 or more arising from contracts to which the Commonwealth or its instrumentalities are parties. In determining whether Section 4 of the Act of 1937 impliedly *429 repealed Section 16 of the Act of 1927, we are mindful that repeals of statutes by implication "are not favored"[9] and that, as a general rule, "a later statute shall not be construed to supply or repeal an earlier statute unless the two statutes are irreconcilable."[10] These considerations are particularly significant in a case such as this, involving two statutes which for decades have coexisted without apparent conflict or confusion.
Section 4 of the Act of 1937 does not provide that the jurisdiction of the Board of Arbitration of Claims shall be exclusive, nor does it expressly proscribe arbitration under the Act of 1927. Indeed, the Act of 1937 makes no reference whatever to the earlier statute.[11] There is nothing inherently inconsistent in the existence of two distinct statutory procedures for the resolution of the same disputes even though the result may be a lack of symmetry in the area. See Jenner Township Annexation Case, supra note 9. Although the procedures established by the two statutes before us differ in a number of respects, they are not repugnant one to the other. In the absence of a clear indication, either express or implied, of legislative intent that the Act of 1937 shall apply to all those cases it covers to the exclusion of the Act *430 of 1927, we must assume that it was the intention of the legislature that the procedures embodied in the two acts are to stand together, providing alternate and discrete methods of dispute resolution for the Commonwealth and those who contract with it. Thus, we hold that Section 16 of the Act of 1927 has not been repealed by implication by Section 4 of the Act of 1937.
In a number of decisions during the almost four decades that these two arbitration statutes have been "on the books" this Court has upheld awards made pursuant to both statutes.[12] Because in most cases the issues on appeal have focused on only one act or the other, the opinions of the Court have been similarly directed, and have not been required to consider whether there were situations in which one act and not the other would be the appropriate arbitrational vehicle. In light of the necessity in this case to consider the interplay of the two acts, and of our conclusion that they continue to co-exist, we deem it appropriate to state briefly the guidelines for employment of these remedies as they appear from the terms of the statutes and the exposition thereof in our decisions.
1. A contract between the Commonwealth of Pennsylvania (including both here and in the paragraphs which *431 follow, its agencies, instrumentalities and political subdivisions) and another may contain an agreement to arbitrate any dispute arising under the contract pursuant to the Act of 1927. In such situations, of which the case at bar is one, the arbitration provisions of the Act of 1927 will apply. Under that Act, the Commonwealth may be the aggrieved party who invokes arbitration.
2. A contract between the Commonwealth and another may provide for arbitration under the Act of 1937. In such case the arbitration provisions of the Act of 1937 will apply. Under that Act the Board of Arbitration of Claims has jurisdiction only over claims against the Commonwealth, and then only if the amount in controversy exceeds $300. Act of 1937, §§ 1 and 4, 72 P.S. §§ 4651-1 and 4651-4.
3. If a contract between the Commonwealth and another contains an arbitration provision but refers to neither statute, the Act of 1927 will normally apply, since it operates to allow either party to assert claims against the other, and is not limited as to the amount in controversy.[13]
4. If a contract between the Commonwealth and another is silent as to arbitration and provides no permissible remedy for an aggrieved person who contracts with the Commonwealth, the Act of 1937 will apply. Although the language in some of our opinions seems to say that the terms of the Act of 1927 are to be automatically read into any contract to which the Commonwealth is a party whether or not arbitration is provided for, an examination of such cases discloses that each contract under review did in fact contain an arbitration clause. The broad language has been reserved for cases in which the *432 arbitration provisions have been inconsistent with the provisions of the Act of 1927, as by providing that an award shall be final and binding without right of appeal.[14] While private parties may so contract for common law arbitration, our cases have held, quite properly in light of Section 16 of the Act of 1927, that the Commonwealth may not do so.[15]
These conclusions are essentially the same as those reached by the Commonwealth Court. We agree with its synthesis in the following passage of Judge Rogers' opinion: "By the Arbitration of Claims Act of 1937, [the legislature] granted all persons having claims arising from contracts entered into with the Commonwealth, not providing other means of settlement [such as arbitration under the Act of 1927], the right to redress through the Board thereby created. The Acts provide separate remedies, the availability of each depending upon the contract from which the controversy has emanated." 12 Pa. Cmwlth. 145, 153, 316 A.2d 127, 132 (1974).
In sum, we conclude that the Act of 1927 has not been repealed and that the arbitration board in this case was not without jurisdiction of the claim.
II.
The second issue before us is whether the arbitrators erred in awarding the appellee interest upon *433 the award for a period approximately one year preceding the rendering of the award.
Due largely to the escalating costs of the construction involved, the compensation to which the appellee was entitled became a matter of dispute between the parties. The amount of the fee was, however, ascertainable by computation in accordance with the provisions of the contract. See Murray Hill Estates, Inc. v. Bastin, 442 Pa. 405, 276 A.2d 542 (1971); Mauch v. Pittsburgh Pension Board, 383 Pa. 448, 119 A.2d 193 (1956); Palmergreen v. Palmer's Garage, Inc., 383 Pa. 105, 117 A.2d 721 (1955); Carbondale City School Dist. v. Fidelity and Deposit Co. of Maryland, 346 Pa. 491, 31 A.2d 279 (1943); see also Restatement of Contracts § 337 (1932). The arbitrators apparently concluded that the delay in payment beyond a reasonable time after demand was without justification, and so allowed interest from the expiration of that reasonable time. This was a proper subject of the arbitration proceeding, and in fact was not objected to by the Commission.
On this appeal the Commission does not question its liability for interest if reckoned from the date of the award, but argues that, because it is an instrumentality of the Commonwealth, it is not liable, as are private litigants, for interest for any period of time prior thereto. It is a "well-settled rule that a sovereign state is not liable for interest in any case except where, expressly or by reasonable construction of a contract or statute, it has placed itself in a position of liability," Purdy Estate, 447 Pa. 439, 442, 291 A.2d 93, 95 (1972). We think that the requirement of arbitration places the Commission in a position of being liable for interest or delay compensation in a case such as this. See Commonwealth v. Berger, 11 Cmwlth. 332, 345-47, 312 A.2d 100, 108 (1973), in which the Commonwealth Court held that "[b]y authorizing [under the Act of 1937] unlimited awards *434 against the Commonwealth, the Legislature appears to have included the right to award interest."[16]
Order affirmed.
ROBERTS, J., did not participate in the consideration or decision of this case.
NOTES
[1] The jurisdiction of the Commonwealth Court over this petition was based upon Section 401(a)(2) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, Art. IV, § 401, 17 P.S. § 211.401(a)(2) (Supp. 1974).
[2] See Act of April 25, 1927, P.L. 381, No. 248, §§ 10, 11, 5 P.S. §§ 170, 171.
[3] See Act of April 25, 1927, P.L. 381, No. 248, § 15, as amended, 5 P.S. § 175. Jurisdiction of this appeal is in this Court by virtue of the Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 283, 17 P.S. § 211.203 (Supp. 1974).
[4] The appellee asserts in its brief that the contract was drafted by the Commission. Appellee's brief, p. 5.
[5] Act of April 25, 1927, P.L. 381, No. 248, § 1 et seq., 5 P.S. § 161 et seq.
[6] Act of May 20, 1937, P.L. 728, No. 193, § 1 et seq., as amended 72 P.S. § 4651-1 et seq.
[7] The Act of Assembly creating the Pennsylvania Turnpike Commission, and by which it is governed, constituted the Commission an "instrumentality of the Commonwealth", and declared the exercise by the Commission of the powers granted to it to be "an essential governmental function of the Commonwealth." Act of May 21, 1937, P.L. 774, No. 211, § 4, 36 P.S. § 652d.
[8] Cf. the Act of May 13, 1925, P.L. 670, §§ 1, 2, 5 P.S. §§ 180, 181. This statute, which preceded the Act of 1927 by two years, provided that the Commonwealth and its agencies and political subdivisions could legally include in any contract a provision for arbitration in accordance with the arbitration act of June 16, 1836, P.L. 715, § 1, 5 P.S. § 1. This Act was impliedly repealed by § 16 of the Act of 1927.
[9] Parisi v. Philadelphia Zoning Board of Adjustment, 393 Pa. 458, 462, 143 A.2d 360 (1958); see H.C. Frick Coke Company Appeal, 352 Pa. 269, 274, 42 A.2d 532 (1945); Scott v. Bell, 344 Pa. 243, 246, 25 A.2d 308 (1942); Jenner Twp. Annexation Case, 208 Pa. Super. 62, 64, 220 A.2d 385 (1966), affirmed, 423 Pa. 609, 225 A. 2d 247 (1966).
[10] Act of November 25, 1970, P.L. 707, No. 230, as amended, 1 Pa.C.S. § 1971 (Supp. 1974). "There may, indeed, be an implied repeal of a legislative enactment. But it can arise only where the language used in the later statute necessarily discloses an irreconcilable repugnancy between its provisions and those of the earlier statute so inconsistent as not to admit of any fair consonant construction of the two." Parisi v. Philadelphia Zoning Board of Adjustment, supra, n. 9 at 463, 143 A.2d at 363.
[11] Cf. § 19 of the Act of 1927, 5 P.S. § 179, which expressly repeals all acts or parts of acts inconsistent with it.
[12] In the following cases awards rendered pursuant to the Act of 1927 have been upheld: Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355, 39 A.2d 139 (1944) (overruled in part on another issue in Lichtenstein v. Pennsylvania Turnpike Commission, 398 Pa. 415, 158 A.2d 461, see note 16 infra, and accompanying text). Acchione v. Commonwealth, 347 Pa. 562, 32 A.2d 764 (1943); Seaboard Surety Co. v. Commonwealth, 345 Pa. 147, 27 A.2d 27 (1942); Philadelphia Housing Authority v. Turner Construction Co., 343 Pa. 512, 23 A.2d 426 (1942); J.M. Davis Co. v. Shaler Township, 332 Pa. 134, 2 A.2d 708 (1938). See also J.L. Turner Co. v. The General State Authority, 41 D. & C.2d 118 (C. P. Dauphin Co. 1966).
Likewise, awards rendered pursuant to the Act of 1937 have been upheld in Eidemiller, Inc. v. State Highway & Bridge Auth., 408 Pa. 195, 182 A.2d 911 (1962); Foley Bros., Inc. v. Commonwealth, 400 Pa. 584, 163 A.2d 80 (1960).
[13] See Acchione v. Commonwealth, supra n. 12; Seaboard Surety Company v. Commonwealth, supra n. 12; Philadelphia Housing Authority v. Turner Construction Company, supra n. 12; J.M. Davis Co. v. Shaler Township, supra n. 12.
[14] See Acchione v. Commonwealth, supra n. 12; Seaboard Surety Company v. Commonwealth, supra n. 12; Philadelphia Housing Authority v. Turner Construction Company, supra n. 12.
[15] See J.M. Davis Co. v. Shaler Township, supra n. 12, 332 Pa. at 138, 2 A.2d at 710, which contains what we believe to be an accurate statement of the effect of Section 16 of the Act of 1927:
"Under the Arbitration Act of 1927 a written contract, except a contract for personal services, may include a provision to settle by arbitration a controversy thereafter arising out of such contract. The arbitration provided for in contracts made after that act took effect must be proceeded with according to the terms of that statute. . . ." (Emphasis added.)
See also the cases cited in n. 14 supra.
[16] See also Lichtenstein v. Pennsylvania Turnpike Commission, 398 Pa. 415, 158 A.2d 461 (1960), wherein this Court held that the Turnpike Commission does not share the Commonwealth's exemption from liability for interest. In so holding, this Court overruled Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355, 39 A.2d 139 (1944), "so far as its holding equates the Turnpike Commission with the Commonwealth in respect of liability for interest on claims against it." Lichtenstein v. Pennsylvania Turnpike Commission, supra, 398 Pa. at 420, 158 A.2d at 463. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263820/ | 479 F.Supp. 529 (1979)
Susan G. HARRISON
v.
UNITED STATES of America and United States Air Force.
Civ. No. H-78-494.
United States District Court, D. Connecticut.
November 2, 1979.
*530 Wesley W. Horton, Moller & Horton, Hartford, Conn., for plaintiff.
Cheryl Wattley, George J. Kelly, Jr., Asst. U. S. Attys., Richard Blumenthal, U. S. Atty., Hartford, Conn., for defendant.
RULING ON MOTION TO DISMISS
CLARIE, Chief Judge.
The plaintiff, wife of a United States Air Force Captain, brought this action against the United States of America *531 and the United States Air Force[1] for her alleged loss of consortium, resulting from injuries which her husband suffered in a plane crash while he was an active duty passenger in a military aircraft. The complaint alleges that the defendants were negligent in staffing and maintaining said aircraft, and the plaintiff is now seeking $250,000 damages pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.
The defendant has moved to dismiss this action, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that the Federal Tort Claims Act does not allow recovery against the United States by this plaintiff. The Court finds that the plaintiff's action arose out of her husband-serviceman's injuries incurred in the line of active military duty and thus falls within the exception to the Federal Tort Claims Act, which retains Governmental immunity for injuries to military personnel incident to their service. The defendant's motion to dismiss is granted and judgment shall enter for the defendant.
Jurisdiction
The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1346(b), 2671 et seq.
Facts
The plaintiff is the wife of Captain John Reginald Harrison of the United States Air Force. She was residing with her husband at Kincheloe Air Force Base in the State of Michigan, when this cause of action arose. She claims governmental negligence in the following respects: (1) that on September 26, 1976, her husband was ordered to travel on a defective and negligently staffed KC-135 aircraft supplied by the defendant; (2) that he was required to fly in his dress uniform rather than a protective flight suit; (3) that the defendant's negligence in the landing of the aircraft caused a crash at Alpena, Michigan; and (4) that Captain Harrison was unable to free himself promptly from the flaming plane, because his seat belt was designed defectively and not authorized for use in a KC-135 aircraft.
The complaint represents that Captain Harrison was burned severely, was hospitalized from September 26, 1976 through January 20, 1977, and thereafter was incapacitated for a considerable period of time. The plaintiff claims that the defendant's negligence caused her the loss of her husband's society, companionship, service, and affection, and all other incidents of the marriage relationship. She also represents that the defendant's negligence in failing to place her in a "non-medical attendant status" caused her unnecessary additional traveling and living expenses in order to be of assistance in the rehabilitation of her husband.
Discussion of Law
The United States has been traditionally shielded from any suit for damages by the doctrine of sovereign immunity. However, Congress removed some of this protection in 1946 when it passed the Federal Tort Claims Act, thus exposing the Government to suit for the wrongs which its agents or employees commit. 28 U.S.C. § 2671 et seq. Congress designated the federal courts as the forum for determining the Government's liability in such matters. Liability may arise from personal injury or property damage caused by the negligence of any Government employee "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." 28 U.S.C. § 1346(b).
The Government's general consent to such liability, as expressed under the Tort Claims Act, is limited by a number of statutory and judicial exceptions. See, for example, 28 U.S.C. § 2680. At issue in the *532 present case is the exception created by the Supreme Court in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), wherein the Court held that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159.
The Supreme Court prefaced its holding in Feres by noting that although 28 U.S.C. § 1346(b) confers jurisdiction on the district courts to render judgment upon all civil actions against the United States for money damages, this section does not say all claims must be allowed. "[I]t remains for courts, in exercise of their jurisdiction, to determine whether any claim is recognizable in law." 340 U.S. 141, 71 S.Ct. at 157.
The plaintiff asserts that her claim for loss of consortium is "recognizable in law," because it is distinct and separate from any cause of action which her serviceman-husband might have pursued against the defendant, had he not been barred explicitly by the Feres exception to governmental liability under the Tort Claims Act. The plaintiff argues that her separate action does not come within the Feres exception, because it applies only to servicemen or their representatives.
In deciding the defendant's motion to dismiss, the Court must determine whether under the applicable state law the plaintiff's claim for relief is independent of her husband's claim, and if so, whether this in itself saves her case from falling within the Feres exception, so as to make her claim "recognizable in law" under the Federal Tort Claims Act.
The latter statute provides that the law of the state where the allegedly negligent action occurred governs the issue of liability. 28 U.S.C. § 1346(b). Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). See, Lambertson v. United States, 528 F.2d 441 (2d Cir. 1976). The complaint represents that the plaintiff's serviceman-husband was incapacitated for approximately four months while he recovered from burns occasioned by the defendant's negligent landing of a KC-135 aircraft in Alpena, Michigan. Her cause of action for loss of consortium is thus governed by the law of Michigan, the location of the plane crash.[2]
In Michigan, a suit for the loss of consortium includes the "loss of society, companionship, service and all other incidents of the marriage relationship." Kailmiai v. Firestone Tire Co., 87 Mich.App. 144, 273 N.W.2d 906 (1978). Such a claim by one spouse is considered by the Michigan courts to be independent of any claim of the other spouse. A wife's action against a tortfeasor for loss of consortium is an action for damages to her own interest, not a remote consequence of the tortfeasor's injury to the husband. Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960). Thus, even though her husband's claim for relief against the Government is barred by Feres v. United States, supra, this alone does not necessarily bar the plaintiff's separate claim for loss of consortium. Under the applicable local law the two claims are not treated as one, and the plaintiff's claim is not merely derivative.[3]
*533 The crucial question is whether the plaintiff's claim for relief, although separate and distinct, is nevertheless barred by the Feres doctrine, that is, whether the Government is exempt from liability for her injuries as well as those of her husband. There is a considerable body of case law which has developed around this doctrine defining the boundaries of the exceptions to governmental liability as applied to servicemen, or their representatives, who prosecute claims against the military. There are very few courts, and none in the Second Circuit, that have been called upon to determine how the Feres doctrine should be applied to persons who claim that they have a separate and independent cause of action flowing from injuries suffered by servicemen.[4] No cases have been found which address the specific issue of whether an independent claim for consortium may be brought against the United States when such claim arises out of injuries to a spouse on active military duty. Nevertheless, the Court is not left without guidance in resolving this issue.
In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Court denied recovery in each of three cases where a plaintiff had brought suit against the United States for injuries sustained by a serviceman due to negligence of others in the armed forces. Feres v. United States, 177 F.2d 535 (2d Cir. 1949); Jefferson v. United States, 178 F.2d 518 (4th Cir. 1949); Griggs v. United States, 178 F.2d 1 (10th Cir. 1949). Two of these cases involved representatives' claims for wrongful death. The Second Circuit case of Feres v. United States, supra, was a suit by an executrix to recover for her decedent's death caused by the negligence of the United States in quartering him in barracks which burned because of a defective heating plant. The Jefferson case involved a plaintiff who discovered that an army surgeon had inadvertently left a thirty inch long towel in his stomach. In the Griggs case an executrix brought an action for the wrongful death of the deceased resulting from his negligent treatment by army surgeons.
The Supreme Court made it quite clear in Feres that a serviceman, or his representative, cannot recover for his injuries incident to military service. The several reasons given by the Court for denying the causes of action of the three plaintiffs demonstrate that the underlying rationale of the doctrine was firmly established at its inception. The Court reasoned as follows: First, recovery is unnecessary because a comprehensive system of relief is already available to military personnel and their dependents. Second, the Tort Claims Act only allows claims against the Government under circumstances where a private individual would similarly be liable. No parallel liability exists in these cases because there is no analogous situation where a private individual is given the power to conscript or mobilize a private army with such authority over persons as the Government vests in echelons of command. Third, the act requires the application of the law of the place where the act or omission occurred. It would hardly be a rational plan of providing for those disabled in service to leave them dependent upon geographic considerations over which they have no control and laws which are variable depending upon the situs. Fourth, the scope, nature, legal incidents and consequences of the relation between persons in service and the Government are fundamentally derived from federal sources and governed by federal authority, and no federal law permits the recovery sought by the plaintiffs. Fifth, Congress evidenced no awareness that the Tort Claims Act might be interpreted to permit a recovery incident to military service. Finally, soldiers are at a disadvantage in litigating these claims because they lack time *534 and money, and it is difficult in the military context to procure witnesses.[5]
The rationale underlying the Feres decision was reaffirmed and strengthened by the Supreme Court in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). There the Court set forth three factors to be considered when a third party brings suit against the United States alleging injuries to a serviceman: (1) the senselessness of liability turning upon the fortuity of where the soldier happened to be stationed at the time of the injury;[6] (2) the existence of the Veterans' Benefits Act as a substitute for tort liability;[7] and (3) as explained in United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954),
"the peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty . . .."
By focusing on these three factors in Stencel, the Supreme Court provides a means of analysis to be employed in deciding whether a party other than a serviceman may recover against the Government for injuries to a serviceman.[8]Stencel involved a suit brought against the United States by a corporation seeking indemnity for damages which it might have been required to pay to an injured serviceman. The Court reasoned first that it makes as little sense to permit the fortuity of the situs of the alleged negligence to affect the Government's liability to a Government contractor for service-connected injuries as it does to permit that situs to affect the liability of the Government to a serviceman. The Court next explained that the Veterans' Benefits Act serves not only to provide a remedy for injured servicemen, but also to clothe the Government in "the protective mantle of the Act's limitation-of-liability provisions." The military compensation scheme provides an upper limit of liability for the Government as to service-connected injuries, such a limitation being "one of the essential features of the Veterans' Benefits Act." 431 U.S. at 673, 97 S.Ct. at 2059. Even though a third party may be required to compensate the injured serviceman when the Government is at fault, as in Stencel, the third party's claim against the Government is disallowed in respect of this limitation. As to the third factor, the effect of the action on military discipline, the Court noted that such effect is identical whether the suit is brought by the injured serviceman or a third party. "The trial would, in either case, involve second-guessing military orders, and would often require members of the Armed Services to testify in court as to each other's decisions and actions." 431 U.S. at 673, 97 S.Ct. at 2059.
Utilizing the same analysis, the Court finds that a wife's independent claim for relief against the Government for loss of consortium is precluded by the Feres exception to governmental liability. As similarly stated in Stencel, it makes no more sense to have the plaintiff in such an action have her right to recovery for loss of consortium arising from her husband's service-connected injuries depend upon his geographic *535 military assignment than it does to have her husband's action determined according to such fortuitous placement. Not all jurisdictions to which the plaintiff's serviceman-husband could be assigned are in agreement as to whether recovery for loss of consortium is permitted.[9] The Supreme Court emphasized that one of the essential features of the Veterans' Benefits Act is to provide an upper limit of liability for the Government with respect to service-connected injuries. The Supreme Court's emphasis weighs as heavily in the case of a claim for relief of a serviceman's spouse as it did in Stencel where the Court held that such a limitation of liability would permit the imposition of financial responsibility for a service-connected injury on an innocent third party. Finally, permitting the plaintiff to litigate her claim would have the same adverse affect on military discipline as allowing the serviceman himself to bring an action challenging the wrongful acts of his contemporaries in the military.
The plaintiff urges that Stencel does not control here, because the third party in that case did not suffer personal injury as did the plaintiff in the case at bar. The Court, however, considers the potential monetary liability suffered by the third party in Stencel as similar to the claim for personal injury of the plaintiff in the present action in that both are serious adverse consequences, and both are alleged to arise solely as a result of the negligence of Government employees. Thus, the rationale, if not the specific holding of Stencel is on point. Its analysis leads to the conclusion that the plaintiff's claim falls within the Feres exception to governmental liability.
This conclusion is supported by the original rationale given by the Feres Court. The similarities are: First, there is no parallel liability in the private sector whereby a wife is allowed to sue for loss of consortium as a consequence of her husband's injuries experienced while he was subject to such plenary authority as the military exercises over persons subject to its command. Second, although the plaintiff's claim for relief is independent of her husband's claim under Michigan law, the federal nature of the relationship between the plaintiff's serviceman-husband and the United States Air Force is not altered by that fact, and no federal law permits the type of recovery sought by the plaintiff in this action. There has been no suggestion in the legislative history of the Act that Congress was aware that the Tort Claims Act might be interpreted in such an anomalous manner that a serviceman-husband performing his military duty would be denied recovery against the Government whose employee's negligence may have caused him serious injury, while his spouse is allowed recovery as a consequence of the same set of facts.
It is significant to note that those cases which are more closely analogous to the instant action have held without exception that independent claims for relief which are rooted in service-connected injuries to persons in the military are barred under the Feres doctrine. Most decisions dealing with separate causes of action which arise as a result of injuries to servicemen incident to their service concern survivors' claims for wrongful death. Courts have not been especially concerned with the separateness of the survivors' claims, however many of these claims have in fact been brought by survivors suing in their own right.
The leading case in this area is Van Sickel v. United States, 285 F.2d 87 (9th Cir. 1960). In that case, the Ninth Circuit affirmed the District Court's dismissal of a claim brought by the widow and children of a serviceman who died allegedly as a result of negligent treatment administered by Government doctors. The plaintiffs in Van Sickel pointed out that Section 377 of the Code of Civil Procedure of the State of California provides them with an original cause of action, separate and distinct from any cause of action which the decedent may *536 have had against the alleged wrongdoer and not subject to the limitations or defenses applicable to whatever claim the decedent himself had. The Court in Van Sickel was satisfied that the plaintiffs' cause was not derivative in character, but was a distinct claim to recover damages sustained by them; nevertheless, the Court denied recovery.[10] In reaching its conclusion, the Ninth Circuit noted that in the two wrongful death actions decided by Feres v. United States, supra, the United States Supreme Court did not deem it important to mention the representative character of the respective plaintiff's causes. Instead, the Feres Court was concerned with the fact that the genesis of the cases before it was an in-service injury sustained by a serviceman.[11]
Other courts have similarly held that separate and independent claims arising as a result of injury to a serviceman are barred by the Feres rule. In DeFont v. United States, 453 F.2d 1239 (1st Cir. 1972), the Court stated that the suits of both a serviceman's wife for mental anguish and his child for loss of companionship were precluded by Feres v. United States, supra, because such damage claims were subject to the incident-to-service limitation set down by the Supreme Court in that case. In Wisniewski v. United States, 416 F.Supp. 599 (E.D.Wis.1976) the court held that Feres barred a claim for familial and marital disharmony asserted by a serviceman's wife where such a claim was based upon allegations of army medical personnel's negligence in the treatment of her serviceman-husband. See also Adams v. General Dynamics Corporation, 385 F.Supp. 890 (N.D.Cal.1974), affirmed, 535 F.2d 489 (9th Cir. 1976).
The rationale in the Feres decision and its progeny confirm the principle that the Federal Tort Claims Act does not support such a claim as that of the plaintiff in that it does not fit within the Government's consent to liability expressed in the Act. Accordingly, the defendant's Motion to Dismiss is granted. SO ORDERED.
NOTES
[1] The Federal Tort Claims Act makes the United States of America potentially liable; thus, it is the proper defendant in this action and not the United States Air Force. 28 U.S.C. §§ 1346(b), 2671 et seq.
[2] Compare Carroll v. United States, 247 F.Supp. 703 (E.D.Mo.1965) wherein the court applied to a plaintiff's similar claim for loss of consortium due to her serviceman-husband's injuries the law of the state where the service plane crashed. Under the decisions in Tennessee, which was the location of the accident, the wife of a negligently injured husband did not have the right to sue for loss of consortium.
[3] There is language in some Michigan cases which suggests that a wife's recovery for the loss of consortium is contingent upon the husband's recovery for his injuries because the former is derivative from the latter principal claim. Hilla v. Gross, 43 Mich.App. 648, 652, 204 N.W.2d 712 (1972) citing Bias v. Ausbury, 369 Mich. 378, 120 N.W.2d 233 (1963). However, it is clear that a wife's claim is derivative only in cases where the two actions of the husband and the wife are consolidated. Dewey v. Perkins, 295 Mich. 611, 295 N.W. 333 (1940). The Supreme Court of Michigan, in a case where the claims of a husband and a wife were consolidated, stated "we adhere to the rule that the husband and wife each have separate independent causes of action." Morrison v. Grass, 314 Mich. 87, 22 N.W.2d 82 (1946). See Laskowski v. People's Ice Co., 203 Mich. 186, 168 N.W. 940 (1918).
[4] See DeFont v. United States, 453 F.2d 1239 (1st Cir. 1972); Van Sickel v. United States, 285 F.2d 87 (9th Cir. 1960); Wisniewski v. United States, 416 F.Supp. 599 (E.D.Wis.1976); See also Adams v. General Dynamics Corporation, 385 F.Supp. 890 (N.D.Cal.1974), affirmed 535 F.2d 489 (9th Cir. 1976).
[5] The Supreme Court mentioned this factor even though it noted simultaneously that these claims are generally brought by widows, surviving dependents, or members of the service after discharge. 340 U.S. at 145, 71 S.Ct. 153.
[6] That the fortuitousness of geography is mentioned as a factor reaffirms the Feres rationale listed as third in the text above explaining the Feres decision.
[7] That the existence of the Veterans' Benefits Act precludes tort liability marks an expansion of the Feres rationale, which had indicated only that the Veterans' Benefits Act made recovery in tort unnecessary.
[8] The three factors identified in Stencel have been used by other courts to analyze such claims. Cf. Daberkow v. United States, 581 F.2d 785 (9th Cir. 1978) (widow and surviving son denied recovery for a serviceman who died performing duties incident to joint military activities). Parker v. United States, 437 F.Supp. 1039 (N.D.Tex.1977) (surviving widow denied recovery for a serviceman who was killed in an automobile collision on a military reservation).
[9] Michigan recognizes a cause of action for the loss of consortium. Connecticut recently recognized the cause of action in Hopson v. St. Mary's Hospital, ___ Conn. ___, 408 A.2d 260 (1979), which overruled Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582 (1911). Missouri, on the other hand, does not recognize the claim. See note 2, supra.
[10] It is clear that under the law of California, a cause of action for wrongful death is an independent claim for injuries to the decedent's heirs and not a claim for injuries inflicted upon the decedent. Helling v. Lew, 28 Cal.App.3d 434, 104 Cal.Rptr. 789 (1972); Davis v. Robinson, 50 Cal.App.2d 700, 123 P.2d 894 (1942).
[11] Many courts have dismissed wrongful death actions of survivors without even discussing whether such actions were independent or representative in character. The primary question has been whether the death occurred in the source of military duty. See, for example, Watkins v. United States, 462 F.Supp. 980 (S.D.Ga.1977); Knight v. United States, 361 F.Supp. 708 (W.D.Tenn.1972); Coffey v. United States, 324 F.Supp. 1087 (S.D.Cal.1971), affirmed 455 F.2d 1380 (9th Cir. 1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263731/ | 336 A.2d 842 (1975)
Norma M. CAMBRA
v.
Eugene E. CAMBRA.
No. 73-291-Appeal.
Supreme Court of Rhode Island.
May 2, 1975.
*843 Kirshenbaum & Kirshenbaum, Alfred Factor, for petitioner.
Frederick G. Cass, Rhode Island Legal Services, Inc., for respondent.
OPINION
ROBERTS, Chief Justice.
This is a motion by Eugene E. Cambra to modify the terms of a final decree of divorce entered on March 19, 1971, in which he, the respondent, had been ordered to pay the amount of $45 a week for the support of the only child of the marriage, Gregory Cambra, whose custody was therein awarded to the mother, Norma M. Cambra, the petitioner in that action. The matter was heard by a justice of the Family Court, who in his decision filed on January 26, 1973, modified the final decree so as to provide for a reduction in the payments for support during periods in which the earnings of the husband were reduced. The amendatory language of the decision reads:
"The final decree is modified to the extent that the respondent is ordered to pay the sum of Twenty Dollars ($20) per week while his take-home pay is One Hundred Fifty Dollars ($150) or less per week. At any time that his take-home *844 pay exceeds One Hundred Fifty Dollars ($150) and does not exceed Two Hundred Dollars ($200) he shall pay Twenty-Five Dollars ($25) per week. When his pay exceeds Two Hundred Dollars ($200), he shall then pay the excess over Two Hundred Dollars ($200) up to Twenty Dollars ($20) so that his payments for the support of the minor child shall then be Forty-Five ($45) per week as originally set forth in the final decree."
Each of the parties is now in this court prosecuting an appeal from that decision.[1]
In reaching its decision, the court adverted to the remarriage of the husband after the divorce and the birth of a child to that union and to the fact that he had been out of work for some 8 months due to an injury suffered in an industrial accident. The court, while conceding that Gregory's need for support had not diminished, recognized that the father had, in fact, incurred new and enlarged obligations because of his second marriage and that his ability to provide the support ordered in the original decree had been substantially impaired by his inability to work because of injuries.
The contention of the mother, that there had been no showing in the instant case of a change in the circumstances of the father's financial condition sufficient to warrant the trial justice in reopening the final decree, is without merit. It is settled that jurisdiction over the custody and support of minor children of divorced persons continues in the court whether provided for in a final decree or otherwise. King v. King, R.I., 333 A.2d 135 (1975); Reynolds v. Reynolds, 79 R.I. 163, 85 A.2d 565 (1952). However, the court should not exercise such jurisdiction absent a showing of some alteration or change in the circumstances and conditions that existed at the time of the entry of the prior decree, and the burden of so showing is on the moving party. Vieira v. Vieira, 98 R.I. 454, 457, 204 A.2d 431, 433 (1964); see also King v. King, supra.
In our opinion, the father has met that burden, having adduced evidence of an increase in his expenses arising out of his remarriage after the divorce and a decrease in his capacity to earn for a substantial period of time due to an injury. An increase in expenses arising out of a second marriage does not in itself absolve one from the obligation to provide for the support of a child by a prior marriage. However, the fact of such a remarriage and an attendant increase in expenses accompanied by evidence of disability preventing full earnings for a period of 8 months constituted a sufficient change in circumstances to warrant the trial justice in reopening the final decree. See Spaziano v. Spaziano, 94 R.I. 258, 179 A.2d 849 (1962). We conclude, then, that the Family Court did not err in exercising its jurisdiction to hear the motion for modification.
It is clear from a review of the father's wage transcripts that prior to his disability he had earned a base wage of approximately $110 per week. This base wage was supplemented by overtime pay which substantially increased his income. His income had increased, due to his overtime *845 earnings, from slightly more than $5,000 in 1969 to over $9,000 in 1971 when the original order to pay $45 per week was entered.
It is also clear that during his disability the father was compensated by unemployment insurance as well as temporary disability insurance in an amount comparable to his base wage. It is not disputed that substantially all of his medical expenses were paid by various health insurance plans.
The important ingredient which was missing from the father's income during his disability was his overtime earnings. Although testimony indicates that the father could look forward to increasing overtime opportunities when he returned to work, we have no difficulty in witnessing a fluctuation in the father's ability to pay support for his child during the time in question at the modification hearing. Indeed, the trial justice formulated an order, equitable in our minds, responsive to the situation of the father; that order is one made upon a sliding scale, which requires increased payments in periods of increased earnings and decreased payments in periods when overtime employment is not available and the father's earnings are decreased.
Before we begin consideration of the father's contention that the trial justice erred in sustaining the mother's objection to the introduction of testimony concerning her financial ability to contribute to the support of the child, we will dispose of a threshold question raised by petitioner mother. She argues antecedently that respondent father should be precluded from raising that evidentiary issue because he made no offer of proof at trial concerning her ability to support the child.
Without such an offer of proof, she asserts, this court has no way of ascertaining whether or not respondent was prejudiced by the trial justice's ruling. Although petitioner states the offer of proof doctrine correctly, she does not state it fully, nor does she properly apply it to the case at bar. It is true that an offer of proof is necessary in order to preserve a right of review; where no prejudice is demonstrated because of an absence of an offer of proof, we will not render what would, in effect, be an advisory opinion. See Manning v. Redevelopment Agency, 103 R.I. 371, 379, 238 A.2d 378, 382-83 (1968). The offer of proof doctrine will not, however, preclude appellate review where the desired response is obvious from questions put to a witness by counsel or by other revealing statements made at trial. Manning v. Redevelopment Agency, supra. Further, the doctrine of offer of proof will be relaxed where counsel is cross-examining a witness. See McCormick, Evidence § 51 at 110 (2d ed. 1972) and Calci v. Brown, 95 R.I. 216, 186 A.2d 234 (1962).[2]
In the situation before us we are constrained to reject the objections of petitioner. In both respondent's memorandum of law to the Family Court and by his counsel's statements at trial, he clearly indicated an intention to show a change of circumstances in both the father's ability and the mother's ability to support the child. In addition, a review of the transcript and the decision clearly indicates an understanding on the part of the trial justice that evidence of petitioner's income was being sought. It is true that respondent did not make an offer of proof in those words, but it is clear that his intention was to adduce the contested evidence. In light of these circumstances, we must reject petitioner's argument and proceed to the heart of this action.
We turn, then, to the question whether the trial justice erred in sustaining petitioner's *846 objection to inquiry by respondent concerning her financial condition. It is clear from the record that the trial justice was under an impression that such testimony was inadmissible, noting in sustaining the objection that he was bound by decisions of the Supreme Court.[3]
There appears to be some confusion, perhaps more apparent than real, among the cases construing the various provisions of this statute, G.L. 1956 (1969 Reenactment) § 15-5-16. It is our opinion, however, that the question of the admissibility of evidence concerning the financial ability of a mother to contribute to the support of a child placed in her custody has been settled in Ferrazza v. Ferrazza, 102 R.I. 265, 229 A.2d 773 (1967). In that case we held that testimony as to a mother's decreased ability to assist in the financial support of the child of whom she has been awarded custody is a relevant factor in cases involving a petition for modification of a decree.
We are persuaded that our decision in Jennings v. Jennings, 78 R.I. 139, 79 A.2d 920 (1951), also supports the view that evidence concerning the financial status of a wife is admissible. In that case the court was considering a wife's motion for support pendente lite, which is not provided for in the statute under consideration but is a matter within the sound judicial discretion of the court. There we held that testimony that a wife had property of her own would not serve to preclude the entry of a decree ordering support pendente lite, but said that the possession of such property is a factor to be considered in a determination as to whether such an award would be granted. We are constrained to hold that the principle laid down in Ferrazza and Jennings has application to the situation with which we are confronted in the instant case and hold that evidence as to the ability of the mother to contribute to the support of the child is relevant and admissible.
We are aware that Hudson v. Hudson, 80 R.I. 473, 98 A.2d 360 (1953), appears to hold that testimony as to the financial ability of a mother to contribute to support was not admissible. However, a close examination of the case indicates that evidence as to the financial ability of the mother to contribute to the support of the child was admitted into evidence. The court, in deciding to reduce the amount of the award for support of the child, felt it necessary to note that it had not so acted on the basis of evidence of her ability to contribute. Rather, the court simply was making it clear that in granting the reduction it had considered only the needs of the child and the ability of the father to contribute.
The view to which we subscribe above is, in our opinion, buttressed by the construction given the pertinent statutory language in Gartner v. Gartner, 79 R.I. 399, 407, 89 A.2d 368, 373 (1952). In that case we construed the language of the statute authorizing the court to regulate the custody and "`* * * provide for the education, maintenance, and support of children of all persons by it divorced * * *.'" We there said that in using such language the Legislature intended to confer upon the court a wide latitude to consider every factor that would serve to reveal in totality the circumstances and conditions and thus enable it to make such an order as would best serve the welfare of the child.
In Gartner we said specifically that the court "* * * must necessarily be vested with sufficiently broad authority to make that power effective to obtain for the child an adequate allowance for its needs. The *847 authority merely to adjudicate any question concerning such needs is not enough in the case of a child. * * * Unless this is so the court's express statutory power to provide for the maintenance, education, and support of the child would be on many occasions a mere empty gesture." Certainly, the above-quoted language discloses a legislative intent that evidence as to the financial ability and status not only of the father but also of the mother be admissible as relevant and competent evidence on the issue of the child's welfare. To construe the statute otherwise would be to attribute to the Legislature an intent to reach an absurd result. This we will not do. Berberian v. Berberian, 111 R.I. 394, 303 A.2d 370 (1973). In this respect we think it is significant that the Legislature did not, in phrasing the statute, impose upon the father a prior obligation to assume the support of his child. Neither, for that matter, does the statute exempt the mother from the obligation to contribute in appropriate circumstances to the support of the child, particularly where an order so directing would serve to promote the child's welfare.
However, while holding that evidence as to the financial ability of a mother to contribute to a child's support is admissible in appropriate cases, we cannot concede that in the circumstances here the exclusion of such testimony prejudiced the respondent. The court, despite its exclusion of such testimony, did grant in substantial part the motion of the respondent for a modification of the decree and granted a rather substantial reduction in the amount to be paid when his earnings fell below specified levels. That being so, it is our conclusion that the appeal of the respondent is without merit.
The appeal of the petitioner is denied and dismissed; the appeal of the respondent is denied and dismissed; the judgment entered below is affirmed; and the cause is remanded to the Family Court for further proceedings.
NOTES
[1] A close examination of the record in this case fails to disclose the entry of a decree embodying the precise terms of the court's modification of the final decree entered on March 19, 1971. The amendatory language was expressly set forth by the court in its decision filed on January 26, 1973. That such a decree was not entered is further substantiated by the fact that each of the parties, in claiming his and her respective appeal, left blank the date of the entry of the decree that would give expression to the orders contained in the decision. In these circumstances we feel that it is appropriate to treat this as an appeal from the pertinent portion of the decision rendered on January 26, 1973, wherein the extent to which the decree of March 19, 1971, is modified is set forth. See G.L. 1956 (1969 Reenactment) § 14-1-52; see also Poirier v. Poirier, 107 R.I. 345, 267 A.2d 390 (1970).
[2] We are aware of the trial technique which dictates that counsel will ask a question on cross-examination only when he or she is reasonably sure of the answer that the witness will give. Notwithstanding this problem an attorney cross-examining a hostile witness cannot be held to have more than a mere suspicion of what answer the witness might give.
[3] In his decision the trial justice said: "However, the Court could not consider the earnings of the wife, who admittedly worked at Gorham Manufacturing Company, or the earnings of her new husband, but could only consider the needs of the child and the present ability of the respondent to provide for those needs * * *." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263734/ | 233 Pa. Superior Ct. 202 (1975)
Commonwealth
v.
Atkins, Appellant.
Superior Court of Pennsylvania.
Submitted December 2, 1974.
March 31, 1975.
*203 Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN DER VOORT, and SPAETH, JJ.
Barry H. Denker, and Shuman, Denker & Land, for appellant.
Stewart J. Greenleaf and J. David Bean, Assistant District Attorneys, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
*204 OPINION BY HOFFMAN, J., March 31, 1975:
Appellant contends that she was not afforded due process of law because the trial judge's refusal to grant her request for a continuance compelled her to act as her own attorney.
The appellant was arrested on November 1, 1973, and charged with two counts of retail theft and one count of criminal conspiracy. A preliminary hearing was held on November 8, 1973, at which the presiding Justice of the Peace determined that a prima facie case had been established. The docket lists Daniel L. Quinlan, Esquire, as defense counsel at the preliminary hearing. On January 14, 1974, the Grand Jury returned True Bills on all three counts. At a subsequent hearing the appellant was asked if she was represented by counsel. The appellant replied that Mr. Quinlan was her attorney, but that he was not present. The court instructed the sheriff to ascertain whether or not Mr. Quinlan would act as the appellant's attorney. The following colloquy appears of record: "THE COURT: Yes, but one lady gave Mr. Quinlan's name and I wanted to get that resolved. "Mr. MITTMAN: Mr. Quinlan, from what I gather, has indicated that he does not represent her. "THE COURT: Did the sheriff talk to him? "MR. CAPUTO: I talked to his secretary and she said she has no knowledge of this name at all . . .[1] "THE COURT: Then Mr. Quinlan does not represent you. Do you understand that? "MRS. ATKINS: Yes, I do."
On May 14, 1974, an application to suppress evidence was made on behalf of the appellant. The attorney for the applicant was William I. English, Jr., Esquire. Apparently, Mr. English was associated with Mr. Quinlan's office.
The motion to suppress was denied on Friday, May 31, 1974, and the trial listed for the following Monday, June 3, 1974. Mr. English represented the appellant at the suppression hearing. When the court opened on June *205 3, Mr. English informed the trial judge that his client desired a continuance in order to obtain the services of another attorney. The court responded: "Let us put it on the record. It is going to be refused.[2] They can go to trial without you. You can sit right alongside if they [the appellant and her co-defendant] do not want you, and they can try their own case." The following colloquy between the court and the appellant ensued: "THE COURT: All right. This case was listed for trial, and you had an opportunity to employ a lawyer. You did, and we are not going to continue the case . . . If you want to discharge Mr. English, you may do so, that is your privilege. I am going to ask him to stay in the courtroom, however, and if you have any question to ask while the case is proceeding, he will be available to you. "Now, do you wish to be tried by a jury, or do you wish to be tried by a Judge without a jury? "DEFENDANT ATKINS: I don't want to be tried at all. "THE COURT: You are going to be tried. "DEFENDANT ATKINS: I'm asking to have a paid lawyer. I obtained Mr. Dan Quinlan, right? I had wanted to obtain Mr. Dan Quinlan, but Dan Quinlan's leg is broke, he is ill, so he had told me to get Mr. English which is an assistant, right? "So, now, this was just for the preliminary hearing, I mean, for the suppression of the evidence case. "THE COURT: Miss Atkins, this case was called to trial, and prior to the trial there was a motion scheduled. A motion had been filed some months back, and that motion was heard before the trial, so if you did not want Mr. English, you could have stated to Mr. English, and you could have told the Court that you wished another lawyer.[3] DEFENDANT ATKINS: But see, I didn't understand this part. "THE COURT: You understand it "DEFENDANT ATKINS: According to *206 you what do you mean I understand? I have my civil rights. I have the right to my own lawyer, right? "THE COURT: We are going to proceed with the trial right now. Now, do you want a jury or don't you want a jury? DEFENDANT ATKINS: I don't want either." The District Attorney then asked Mr. English whether he had been retained by the appellant. Mr. English answered affirmatively, adding that Mr. Quinlan said he "didn't want to take the case." The Court instructed Mr. English to remain in the courtroom to advise the defendants if they so desired. The case proceeded to trial and the appellant, acting as her own attorney, was found guilty by a jury.
Both the United States Supreme Court and the Pennsylvania Supreme Court have consistently ruled that legal counsel "is an absolute necessity in a criminal trial . . ." Commonwealth v. Kennedy, 451 Pa. 483, 488, 305 A. 2d 890 (1973). See also Argersinger v. Hamlin, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335 (1963). The right to counsel is a personal right and is waivable, but ". . . for the waiver to be valid and effective, it must be the competent and intelligent act of the accused: Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019 (1938); Moore v. Michigan, 355 U.S. 155, 78 S. Ct. 191 (1957)." Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 69, 202 A. 2d 303, 305 (1964). See also Argersinger v. Hamlin, supra; Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A. 2d 439 (1964). The record in the instant case reveals that the appellant's decision to proceed to trial without the assistance of counsel was not voluntary. The appellant wanted to be represented by counsel, but not by Mr. English. When her request for a continuance was denied, she was left little choice but to proceed pro se. Moreover, her objections to the court's ruling were definitively expressed.
As in Moore v. Jamieson, 451 Pa. 299, 306 A. 2d 283 (1973), "[w]e must begin with the unquestioned premise *207 that . . . `the accused regardless of financial status is guaranteed the right to the assistance of counsel, either counsel of his own choosing, or if indigent or otherwise unable to secure counsel, counsel assigned by the court. Gideon v. Wainright, [372 U.S. 335 (1963)].' (Emphasis added). Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 533, 204 A. 2d 446, 448 (1964). The right to counsel of one's own choosing is particularly significant because an individual facing criminal sanctions should have great confidence in his attorney. Cf. Commonwealth v. Velasquez, 437 Pa. 262, 265, 263 A. 2d 351, 353-354 (1970)." 451 Pa. at 307-308, 306 A. 2d at 288 (footnote omitted). Our state Constitution also provides that a defendant has the "right to choose at his own cost and expense any lawyer he may desire: Constitution of Pennsylvania, Art. I, § 9, . . ." Commonwealth v. Novak, 395 Pa. 199, 213, 150 A. 2d 102, 109 (1959), cert. den. 361 U.S. 882, rehearing den. 361 U.S. 926. The Federal courts as well have held that the right to obtain the assistance of counsel of one's own choosing is a necessary corollary to the Constitutional right to counsel. Chandler v. Fretag, 348 U.S. 3 (1954); United States ex rel. Carey v. Rundle, 409 F. 2d 1210 (3d Cir. 1969).
The right to choose a particular counsel, however, is not absolute. Thus, the desirability of permitting a defendant additional time to obtain private counsel of his choice must be weighed against the public need for the efficient and effective administration of justice. Commonwealth v. Simpson, 222 Pa. Superior Ct. 296, 294 A. 2d 805 (1972). The matter of continuance is traditionally one within the discretion of the trial judge, and no prophylactic rule exists for determining when a denial of a continuance amounts to a violation of due process. Each case must be decided by balancing the competing interests, giving due regard to the facts presented: ". . . it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is *208 compelled to defend without counsel . . . Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (citations omitted).
The instant case is factually distinguishable from those decisions holding that the denial of a continuance did not result in a deprivation of due process. For example, in Commonwealth v. Simpson, supra, the defendant was arrested on November 7, 1970. On May 5, 1971, the case was scheduled for trial on June 3, 1971. Throughout this period, the defendant was represented by a voluntary defender. When the case was called, the defendant requested a continuance so that he could secure private counsel. The trial judge continued the case until July 8, 1971, when the defendant again asked for an additional delay. Our Court held that the trial judge did not abuse his discretion, in light of the facts that the defendant had been given more than one month in which to obtain private counsel, and at the end of this period was unable to indicate how much additional time would be required.[4]*209 In the present case, there was only one request for a continuance.
The Court in Commonwealth v. Novak, supra, held that the defendant's constitutional rights were not abridged by the trial court's refusal to allow his private counsel to withdraw: "Defendant had a period of almost two years in which to procure counsel to his liking and in whom he could have confidence. He was never denied the opportunity to exercise this right. Defendant knew when his case would be called for trial. He could not wait until the very day of his trial to choose another counsel." 395 Pa. at 214, 150 A. 2d at 110. (Emphasis added). Commonwealth v. Minifield, 225 Pa. Superior Ct. 149, 310 A. 2d 366 (1973), is similar to Novak. The defendant had been represented by the Philadelphia Voluntary Defender Association from the time of his arrest in November, 1971. On July 6, 1971, the defendant was notified that he had received a workmen's compensation award in the amount of $1,750. After the defendant's motions to suppress all identifications were denied on July 26, 1971, the voluntary defender informed the trial judge that the defendant wished to retain private counsel. This Court reiterated the general proposition that "where a defendant is able to retain counsel of his own choice, he must be given a reasonable opportunity to do so." United States ex rel. Ferenc v. Brierley, 320 F. Supp. 406, 408 (E.D. Pa. 1970). We held, however, that the defendant was afforded a reasonable opportunity but had failed to pursue it in a reasonable manner, and therefore ruled that the denial of the continuance was not erroneous. Like the defendant in Novak, the defendant in Minifield was afforded a sufficient opportunity to secure the attorney of his choice.
The distinction between the facts of the present case *210 and those of the Novak-Minifield line of cases is that the appellant here was laboring under the misapprehension that Mr. Quinlan would act as her trial counsel. This assumption is understandable in view of the facts that Mr. Quinlan represented the appellant at the preliminary hearing and that Mr. English was an associate of Mr. Quinlan. Because the appellant alleged that Mr. Quinlan was ill, it seems perfectly reasonable for her to have persisted in the belief that he would be trial counsel, despite the fact that Mr. English acted as her attorney at the suppression hearing. Furthermore, Mr. English, when asked by the District Attorney if he had been retained by the appellant, responded: "I was. Mr. Quinlan said he didn't want to take the case." It is certainly possible that Mr. Quinlan expressed that desire to Mr. English, his associate, but did not so inform the appellant. Mr. Quinlan may have assumed that the appellant was retaining his law firm, while the appellant obviously desired to have Mr. Quinlan personally represent her at trial. Whether or not the appellant's assumptions were reasonable, the summary dismissal of her request for a continuance did not evidence sufficient concern for the protection of a fundamental and essential constitutional right.
It is obvious that the appellant did not want Mr. English to represent her, although she offered no reason other than her preference to have Mr. Quinlan handle her defense. While it may be argued that the appellant has failed to show the "good cause" required for a substitution of counsel, Commonwealth v. Velasquez, supra, this case involves the discharge of retained counsel only in the narrowest sense. The appellant believed that Mr. English's efforts on her behalf ended with the suppression hearing. For this reason, the appellant's request cannot be equated with the one made in Commonwealth v. Novak, supra.[5] Moreover, because the appellant made *211 only one request for additional time, she does not fall within the language of Velasquez which states that a defendant cannot continually request new counsel when disagreements arise. 437 Pa. 262, 265, 263 A. 2d 351, 353.
The granting of a short continuance in this case would have satisfied both the constitutional right of the appellant to be represented by an attorney of her own choosing, and the interest of the public in the prompt and efficient administration of justice. ". . . [T]he state's interest in speedy trials is two-fold: To fulfill its constitutional obligation to provide all criminal defendants with speedy trials; to satisfy the public's right to have persons accused of crime tried with reasonable speed." Moore v. Jamieson, supra, at 312, 306 A. 2d at 290. (Emphasis added). Had the appellant's request been granted, she obviously could not later contend that she was deprived of her constitutional right to a speedy trial, and the public interest in an expeditious criminal justice system would not have been unduly thwarted. Under the circumstances of this case, the denial of the continuance adversely affected the appellant's constitutional right to counsel to a far greater degree than the adverse effect on the public interest that would have been engendered by a short continuance.[6]
*212 Judgment of sentence reversed and the case remanded for a new trial consistent with this opinion.
JACOBS and VAN DER VOORT, JJ., dissent.
NOTES
[1] The appellant also used the name of Alma Bey.
[2] We are not unsympathetic to the trial court's desire not to additionally burden an already over-burdened system.
[3] The only motion prior to trial appearing of record is the May 16, 1974 motion to suppress evidence.
[4] United States ex rel. Carey v. Rundle, supra, is also factually inapposite. There, the defendant was represented by private counsel at the preliminary hearing on June 4, 1966. At trial on August 29, the defendant stated that he was without counsel, and his former attorney stated in court that he no longer represented the defendant. The court continued the trial for thirty days to enable the defendant to obtain the counsel of his choice. On September 28, the defendant was still without counsel, and the court granted him another one-day extension. On September 30, an attorney stated he would be able to act on behalf of the defendant if the trial was delayed another five days. The Third Circuit held that there was no abuse of discretion in denying this request. Moreover, on August 29, the court ordered the Voluntary Defender to be prepared to proceed on September 28 in the event that the defendant was unable to secure private counsel.
[5] Nor is this case within the factual pattern of Ungar v. Sarafite, supra. In that case, the defendant was served with a showcause order on Thursday, and a contempt hearing was scheduled for the following Tuesday. On Tuesday, the defendant appeared with an attorney but expressed a desire to have different counsel. That same day, a second attorney appeared for appellant, but withdrew his appearance when the trial judge refused to grant him a one-week extension to familiarize himself with the case. Thus, the defendant had an attorney of record and had five days to obtain new counsel. Under these circumstances, and in view of the fact that the defendant was also an attorney, the Court held that no constitutional rights were violated. In the present case, however, the appellant was unaware that a request would be necessary until the very day of trial, when it became apparent that Mr. Quinlan would not undertake her defense.
[6] In its brief, the Commonwealth does not respond to the appellant's constitutional arguments. Instead, the Commonwealth argues that post-trial motions were not filed until twenty-four days after the verdict in violation of Rule 1123(a) of the Pennsylvania Rules of Criminal Procedure. It is apparent that this case presents exceptional circumstances, despite the fact that the District Attorney and the court informed the appellant that motions for a new trial would have to be filed within seven days. The trial judge could have appointed a Voluntary Defender to assist the appellant in the event that she would be unable to secure private counsel. As it turns out, the appellant sought the aid of private counsel, but he was unable to file the motions until twenty-four days after verdict. In view of the disposition of the merits, it would serve little purpose to remand the case with instructions that an appeal be allowed nunc pro tunc. Moreover, the lower court considered the appellant's claim that her request for a continuance was erroneously denied. The basic reason for requiring post-trial motions is to allow the trial court an opportunity to consider the issues that will be raised on appeal. That has been accomplished. See Commonwealth v. Grillo, 208 Pa. Superior Ct. 444, 449, n. 1, 222 A. 2d 427, 430, n.1. (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263740/ | 133 N.J. Super. 216 (1975)
336 A.2d 30
CAPPTURE REALTY CORPORATION, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE BOROUGH OF ELMWOOD PARK, PLANNING BOARD OF THE BOROUGH OF ELMWOOD PARK, BOROUGH OF ELMWOOD PARK, A MUNICIPAL CORPORATION IN THE COUNTY OF BERGEN AND STATE OF NEW JERSEY AND MICHAEL BUCK, BUILDING INSPECTOR OF THE BOROUGH OF ELMWOOD PARK, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued March 4, 1975.
Decided March 18, 1975.
*219 Before Judges CARTON, CRANE and KOLE.
Mr. Lucien Baron argued the cause for appellant.
Mr. Stephen R. Spector argued the cause for respondents (Messrs. Ferrara, Glock and Spector, attorneys).
PER CURIAM.
The facts in this case are fully set forth in the opinion of the Law Division judge, 126 N.J. Super. 200.
By various amendments to the zoning ordinance of the borough, commencing October 1971 and extended for yearly periods thereafter until November 22, 1974, a moratorium was declared prohibiting construction on certain lands, including that of plaintiff, within what is referred to as a flood-prone or flood-plain area of Fleischer Brook. A property *220 owner may obtain relief from the prohibition against construction by applying to the board of adjustment for a special exception use permit under N.J.S.A. 40:55-39(b). That board is authorized to recommend to the governing body that the exception be granted, provided that the municipal planning board has issued an advisory report finding that the proposed construction will not generate or create any additional surface water runoff from the site and will not impair the general safety, health and welfare. Such special exception use, if recommended, is subject to all other requirements of the zoning and other applicable ordinances.
Plaintiff applied for such a permit but the board of adjustment denied the application. As part of its application plaintiff also sought a special use exception in the E Industrial zone under another provision of the zoning ordinance, § 88-17. This was also denied.
The trial judge found the moratorium declared by the ordinances to be a valid and reasonable exercise of the police and zoning power for the period provided therein, i.e., October 1971 to November 1974, and additionally for a period of two years from the date of its December 21, 1973 decision, provided (1) construction of the necessary flood control project in connection with the area was started in good faith within six months from the date of the decision, and (2) the moratorium, to be extended by ordinance, did not go beyond December 21, 1975. He indicated that failure to meet these limitations would result in the ordinance being found to be unreasonable as to plaintiff's property. The judge further held that the temporary moratorium did not deprive plaintiff of its property without compensation. The judge also upheld the denial of the application for the special use exceptions by the board of adjustment.
Plaintiff appeals from the resulting judgment against it.
At oral argument it was stated that the moratorium has now been extended by ordinance to July 31, 1975. There *221 was some dispute as to whether the necessary construction work had in fact commenced, but we do not believe that this factor is of major significance in determining the validity or reasonableness of the moratorium here involved.
We agree with the trial judge that under the special circumstances of this case a moratorium as to construction with respect to these flood-prone lands for the period indicated by the judge, that is, to December 21, 1975, constitutes an appropriate exercise of police and zoning power and does not involve a deprivation of property without just compensation. This conclusion is supported by the extensive planning, as well as the nature of the work, involved in this necessary contemplated regional flood control project, and the fact that both the county and the municipality, as well as other municipalities affected, are actively engaged therein. We affirm, essentially for the reasons set forth by the court below, the reasonableness of the moratorium period for these purposes, which have a substantial relationship to health, welfare and safety. See Meadowland Reg. etc. v. Hackensack, etc., 119 N.J. Super. 572 (App. Div. 1972), certif. den. 62 N.J. 72 (1972). Cf. E. Rutherford Indust. Park v. State, 119 N.J. Super. 352 (Law Div. 1972); Morris Cty. Land, etc. v. Parsippany-Troy Hills, 40 N.J. 539, 556, n. 3 (1963).
We express no views as to that portion of the judge's opinion which implies that failure to terminate a moratorium by December 21, 1975, or to start the work within six months after December 21, 1973, would convert this municipal action into a taking requiring just compensation, or that an extension beyond that time necessarily would be unreasonable. That issue is left to another day when and if the circumstances warrant consideration thereof.
The municipality, however, obviously must consider the real possibility that the line between the exercise of the police and zoning powers on the one hand, and a taking on the other, although not precise, may be found in the not too *222 distant future to have been transgressed as to plaintiff's property unless it acts with some degree of expedition to complete the proposed project or to terminate the moratorium. See E. Rutherford Indust. Park v. State, supra; Spiegle v. Beach Haven, 46 N.J. 479, 491-492 (1966), cert. den. 385 U.S. 831, 87 S.Ct. 63, 17 L.Ed.2d 64 (1966), and 116 N.J. Super. 148, 163-168 (App. Div. 1971).
We also affirm the trial judge with respect to the validity of the board of adjustment's denial of the application for a special use exception from the moratorium. There is adequate credible evidence in the record to sustain his conclusion that plaintiff failed to adduce the required competent proofs to set aside the decision of the board in this respect. In view of the reasonableness of the period of the moratorium ordinance, the fact that it may be difficult for plaintiff to satisfy the standards it imposes for relief therefrom is insufficient reason for invalidating the standards.
Plaintiff questions the legality of permitting the board of adjustment to serve as the agency under the moratorium ordinance for special use exception recommendations to the governing body. The contention, which conceives of the board of adjustment in this respect as a body to hear police power rather than zoning matters, is without merit. Apart from being an amendment to the zoning ordinance, the moratorium provisions are so inextricably involved with zoning and permits for construction that the use of that board for this purpose is plainly authorized by N.J.S.A. 40:55-39(b). See and compare Morris County Land, etc. v. Parsippany-Troy Hills Tp., supra, 40 N.J. at 546.
Plaintiff challenges the trial judge's affirmance of the decision of the board of adjustment to the extent that it denied the special use exception in the E Industrial zone under the provisions of § 88-17 of the zoning ordinance. It appears that although plaintiff's land is situated in the E Industrial zone, the uses it desires to make of the property are all permitted in other districts, including the D Commercial zone. At oral argument this was conceded by the borough. Under *223 paragraph C of § 88-17, no "use permitted by this section [involving the E Industrial zone] * * * and not permitted in any other zone, shall be a matter of right * * * but shall be created only on application to the board of Adjustment, and by the general approval of the said Board for the granting of any necessary building permit or [certificate] * * * of occupancy before issuance by the Building Inspector * * *." [Emphasis supplied].
Although the provisions relating to the E Industrial zone are not a model of clarity, since at one point they appear to preclude anything but an "industrial" use, we assume, in light of the proceedings below, that plaintiff's proposed use is permitted in that zone. It seeks to erect a building containing a storage warehouse, a tractor-trailer maintenance shop for its own trucks, and a cardboard box manufacturing facility, with related office use and parking. These seem to be uses permitted in the D Commercial zone and the D-1 Light Manufacturing zone. Thus, paragraph C is inapplicable to the uses planned by plaintiff, and board of adjustment approval is not required in order for it to obtain a building permit under § 88-17. Under the circumstances we need not decide the validity of authorizing that board to determine whether the standards of § 88-17 have been complied with or whether plaintiff has sustained its burden of proving such compliance before the board. The conclusions of the trial judge that the board of adjustment's findings relating to § 88-17 were not arbitrary and that the findings were sufficient, although not erroneous, were not required in order to determine the matters properly before him.
The trial judge directed the planning board to review plaintiff's plot and site plans to determine whether they complied with the provisions of paragraph B of § 88-17 of the ordinance relating to the E Industrial zone. That provides that no "building shall be constructed in a Light Manufacturing Zone D-1 and Industrial Zone E, without first having obtained the written approval of the Planning Board to a plot plan, site plan, building plan and specifications and use *224 of said building." Since plaintiff's land is in the E. Industrial zone, planning board approval under the ordinance was required.
We were advised at argument that the planning board had not approved the plans submitted because of plaintiff's failure to comply with the moratorium ordinance requirements for a special use exception therefrom. This determination was plainly erroneous and contrary to the appropriate directions of the trial judge. Plaintiff is entitled to a decision now by the planning board under this provision of the ordinance as to site and plot plan approval on the assumption either that it will be able to satisfy the special use exception standards of the moratorium ordinance or that the moratorium is no longer in effect. The planning board is directed to hold a hearing and make a determination relating to this matter within 60 days from the date of this opinion. See Newark Milk & Cream Co. v. Parsippany-Troy Hills Tp., 47 N.J. Super. 306, 332 (Law Div. 1957).
Plaintiff further appears to contend that the requirement of planning board approval of site and plot plans in the E Industrial zone under § 88-17 is invalid for lack of appropriate standards and for want of statutory authority.
We have not been presented with standards for such review by that board other than the provision in paragraph A of that section that any use "noxious by reason of the emission of odor, dust, noise, smoke or gas, and dangerous to the health or safety of the residents of the community shall not be permitted." Paragraph B authorizes the planning board to approve "a plot plan, site plan, building plan and specifications and use of said building." The provisions of paragraph A suffice with respect to standards as to use of the proposed building.
We are in no position, because of lack of a record as to other pertinent ordinance provisions, to determine the adequacy of the standards for approval of plot, site and building plans or specifications. Nor do we know whether the borough ordinance places final authority in the planning *225 board as to these matters, or only authority to make recommendations to the governing body or other agency. See N.J.S.A. 40:55-1.13; Newark Milk & Cream Co. v. Parsippany-Troy Hills, supra at 313, 332-333; Kozesnik v. Montgomery Tp., 24 N.J. 154, 178, 186 (1957); Saddle River Day School v. Saddle River, 51 N.J. Super. 589 (App. Div. 1958), aff'd o.b. 29 N.J. 468 (1959); Brundage v. Randolph Tp., 54 N.J. Super. 384 (App. Div. 1959), aff'd o.b. 30 N.J. 355 (1959); Guaclides v. Englewood Cliffs Mayor & Counc., 119 N.J. Super. 403 (Law Div. 1972).
However, since plaintiff has made no affirmative showing of lack of standards with regard to planning board review of site, plot and building plans and specifications, on the present record we hold that it has not demonstrated the absence of adequate criteria in these respects.
Similarly, for lack of a record we need not determine whether the planning board has final, rather than merely recommendatory, review authority as to all matters under paragraph B.
Plaintiff urges the invalidity of planning board review under paragraph B of § 88-17 because no similar requirement exists as to uses permitted in districts other than the Light Manufacturing zone D-1 and E Industrial zone. The claim is without merit.
Zoning ordinances may embody reasonably different methods of municipal control of this kind with respect to uses in separate districts. See Newark Milk & Cream Co. v. Parsippany-Troy Hills, supra; Frankel v. Atlantic City, 63 N.J. 333 (1973), reversing on dissenting opinion in 124 N.J. Super. 420 (App. Div. 1973). The borough here has drawn the line for planning board review of site plans and related matters at uses in industrial and light manufacturing districts, as opposed to all other districts. There is no showing that such action is unreasonable or that the industrial and manufacturing zones do not require such special treatment. See and compare Bow & Arrow Manor v West Orange, 63 N.J. 335 (1973).
*226 For the reasons expressed, the judgment below is affirmed. The planning board is directed to hold a hearing and make a determination based thereon consistent with this opinion.
No costs. | 01-03-2023 | 10-30-2013 |
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