url stringlengths 55 59 | text stringlengths 0 1.43M | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/1339970/ | 660 S.E.2d 600 (2008)
Larry D. HANNAH, Plaintiff,
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant.
No. COA07-151.
Court of Appeals of North Carolina.
May 20, 2008.
Cerwin Law Firm, P.C., by Todd R. Cerwin, Shelby, for plaintiff-appellant.
Baucom, Claytor, Benton, Morgan & Wood, P.A., by Rex C. Morgan, Charlotte, for defendant-appellee.
GEER, Judge.
Plaintiff Larry D. Hannah appeals from a declaratory judgment, entered following a bench trial, holding that his personal property, destroyed in a fire, was not covered under the homeowner's insurance policy issued by defendant Nationwide Mutual Fire Insurance Company. On appeal, Hannah has presented no authority to support his contention that the express terms of the policy provide coverage of his personal property, and we, therefore, do not consider that argument. He argues, alternatively, that Nationwide is required to provide coverage based on the doctrines of waiver and estoppel. Because waiver and estoppel cannot operate to extend coverage to risks not already covered by a policy, we affirm the trial court's entry of judgment in favor of Nationwide.
Following the bench trial, the trial court entered findings of fact and conclusions of law. Hannah has not assigned error to any of the trial court's findings of fact and, therefore, those findings are binding on appeal. Johnson v. Herbie's Place, 157 N.C.App. 168, 180, 579 S.E.2d 110, 118, disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003). See also Okwara v. Dillard Dep't Stores, Inc., 136 N.C.App. 587, 591, 525 S.E.2d 481, 484 *602 (2000) ("[E]ach contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding."). Because of Hannah's failure to challenge the findings of fact, "[o]ur review . . . is limited to the question of whether the trial court's findings of fact, which are presumed to be supported by competent evidence, support its conclusions of law and judgment." Id. at 591-92, 525 S.E.2d at 484.
Facts
The trial court made the following findings of fact. On 19 March 2003, Hannah and his wife entered into a contract with Hannah's mother and stepfatherMary M. Sessoms and John V. Sessomsto purchase a house and lot located at 814 Fourth Street, Kings Mountain, North Carolina. Mr. and Mrs. Sessoms moved out of the house within a week of the contract and since that time have continuously resided elsewhere.
Under the 19 March 2003 contract, Hannah was required to make the mortgage payments on the property, with John and Mary Sessoms agreeing to deed the property to Hannah once the mortgage was paid in full. The contract also required Hannah to keep the improvements on the land insured for the benefit of Mr. and Mrs. Sessoms against loss by fire and to pay the premiums for the insurance.
Prior to 19 March 2003, Mr. and Mrs. Sessoms had insured the 814 Fourth Street property through Nationwide. Hannah agreed with Mr. Sessoms that they would continue the Nationwide policy and would make the premium payments necessary to keep the Nationwide policy in effect. In June 2003, Hannah's wife made the premium payment to Nationwide and requested that future premium notices be mailed to "John Sessoms, c/o Larry Hannah" at 814 Fourth Street. She repeated this request in November 2003. No one, however, notified Nationwide or its agent that John and Mary Sessoms had moved from the property or that the Hannahs had personal property at the 814 Fourth Street address.
On 14 October 2004, a fire destroyed the house at 814 Fourth Street and most of the personal property owned by Hannah. That same date, Nationwide's Claims Department sent a letter acknowledging the claim for fire damage and requesting information. The letter identified the "insured" under the Nationwide policy as "John V. Sessoms, c/o Larry Hannah." In response to the letter and a verbal direction of a Nationwide adjuster, Hannah sent Nationwide a 29-page inventory of personal property lost in the fire that he claimed was valued for replacement cost purposes at $55,283.50.
Subsequently, an adjuster with Nationwide gave Hannah a check for $2,000.00 for additional living expenses that was made out to "John Sessoms, c/o Larry Hannah." In addition, on approximately 6 December 2004, Nationwide issued two checks in connection with the loss. One check in the amount of $14,471.28 was made payable to John V. Sessoms and Wachovia Mortgage Corporation for the mortgage debt on the property. The second check, in the amount of $89,385.89, was made payable to John V. Sessoms.
In a letter dated 8 December 2004, addressed to "John V. Sessoms, c/o Larry Hannah," Nationwide denied Hannah's claim for personal property loss under Coverage C of the Nationwide policy. Nationwide stated that since the Hannahs were not residents of the Sessoms household where the Sessoms resided, they did not qualify as "insureds" under the policy.
Coverage A of the policy provided coverage for "[t]he dwelling on the residence premises shown in the Declarations, including structures attached to the dwelling[.]" Coverage C of the policy provided coverage for "personal property owned or used by an insured while it is anywhere in the world." At the insured's request, the policy would also cover personal property owned by "[o]thers while the property is on the part of the residence premises occupied by an insured."
"Insured" was defined to "mean[] you and residents of your household who are . . . [y]our relatives." The words "you" and "your" "refer[red] to the `named insured' shown in the Declarations and the spouse if a resident of the same household." The declarations page of the Nationwide policy at issue *603 identifies the named insured under the policy as:
JOHN V. SESSOMS
C/O LARRY HANNAH
814 FOURTH STREET
KINGS MOUNTAIN NC XXXXX-XXXX
The policy defined "Insured location" to mean "[t]he residence premises." Further, "Residence premises" means, under the policy:
a) The one family dwelling, other structures, and grounds; or
b) That part of any other building; where you reside and which is shown as the residence premises in the Declarations.
The declarations page identified the "residence premises" as 814 Fourth Street, Kings Mountain.
On the date of the fire, Mr. and Mrs. Sessoms lived at 906 Lavender Road, Grover, North Carolina. They did not reside at 814 Fourth Street. The trial court found that Hannah and his family were not residents of the household where John and Mary Sessoms resided at the time of the loss. Finally, neither John nor Mary Sessoms had requested that Nationwide provide coverage for the personal property of Hannah or his family prior to the fire.
Based on these findings of fact, the trial court concluded that the policy did not provide coverage for Hannah's personal property lost or damaged in the 14 October 2004 fire. The court also concluded that "[t]he payment by Nationwide of additional living expenses to [Hannah] and/or the payments under Coverage A of the Nationwide policy for damages to the premises do not constitute a waiver or estoppel of Nationwide's denial of Plaintiff's claim for damages to personal property under the policy." The court, therefore, entered a declaratory judgment in favor of Nationwide, "find[ing] that there is no coverage for any claims made by [Hannah] under the Nationwide policy, and further find[ing] that Nationwide has no obligation to make any payments to [Hannah] for any claims under the Policy in connection with the fire of October 14, 2004." Hannah timely appealed this judgment to this Court.
Discussion
Hannah's first three assignments of error challenge the trial court's conclusion that his personal property was not covered under any of the provisions of the insurance policy. Hannah's entire argument for these three assignments of error consists of the following two paragraphs:
In this case the Plaintiff, Larry Hannah, is a named insured identified in the Declarations. As such, his personal property is covered while it is anywhere in the world, including the residence premises. Also covered would be the property of anyone else located at 814 Fourth Street, Kings Mountain, NC, as Larry Hannah occupied that premises.
Larry Hannah is also an "insured" as a "relative" of the spouse of John Sessoms (his spouse also being an insured), being the natural son of the spouse of John Sessoms, living in the "insured location". As such, he is thus identified as an "Insured".
Hannah's counsel cited no authority of any kind in support of his contentionshe did not even cite the applicable standard of review.
Under Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure, "[a]ssignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." (Emphasis added.) See also James River Equip., Inc. v. Mecklenburg Utils., Inc., 179 N.C.App. 414, 420, 634 S.E.2d 557, 561 (2006) ("[P]laintiff has cited no authority in support of its argument, and thus has abandoned this assignment of error."), appeal dismissed and disc. review denied, 361 N.C. 355, 644 S.E.2d 226, 227 (2007). Hannah has, therefore, abandoned these assignments of error.
We could exercise our discretion under Rule 2 to suspend the requirements of Rule 28, but choose not to do so in this case. Hannah's contentions raise questions not previously addressed by the North Carolina appellate courts regarding the proper construction of language frequently included in property insurance policies. We do not believe that it would be appropriate to address those questions in the absence of proper briefing by the parties.
*604 In his next argument, Hannah asserts, with citation of authority, that "[i]n the event that Larry Hannah is not determined to be an `insured' identified in the Declarations, then [Nationwide] has waived the condition of John Sessoms' residency at the insured location or is otherwise estopped to deny that Plaintiff Hannah's personal property is still covered by the policy. . . ." In other words, Hannah seeks to extend coverage under the policy by reliance on the doctrines of waiver and estoppel.
As this Court has explained, however, "`[w]hile waiver and estoppel have been held applicable to nearly every area in which an insurer may deny liability, the courts of most jurisdictions agree that these concepts are not available to broaden the coverage of a policy so as to protect the insured against risks not included therein or expressly excluded therefrom.'" Currie v. Occidental Life Ins. Co. of N.C., 17 N.C.App. 458, 459-60, 194 S.E.2d 642, 643 (1973) (quoting Annot., 1 A.L.R. 3d 1139, § 2 (1965)). See also Pearce v. Am. Defender Life Ins. Co., 316 N.C. 461, 466, 343 S.E.2d 174, 177 (1986) (noting "the well-settled rule that the doctrines of waiver and estoppel have been applied in order to obviate the forfeiture provisions in insurance contracts, but that they are not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom" (internal quotation marks omitted)); Brendle v. Shenandoah Life Ins. Co., 76 N.C.App. 271, 276, 332 S.E.2d 515, 518 (1985) (holding that waiver and estoppel "cannot be used to create coverage which is nonexistent or expressly excluded from a policy").
By seeking to obtain coverage for personal property not otherwise covered by the policy, Hannah is seeking to use the doctrines of waiver and estoppel to obtain protection against risks not included within the policy. As a result, the principles of waiver and estoppel do not apply.
Finally, we must note Hannah's counsel's numerous violations of the North Carolina Rules of Appellate Procedure. In addition to failing to cite any authority in connection with one of his primary arguments, counsel also failed to include the standard of review and single-spaced the text in his brief in violation of Rules 26(g)(1) and 28(b)(6).[1] Failure to comply with non-jurisdictional appellate rule requirements such as these "normally should not lead to dismissal of the appeal." Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008).
As a result of counsel's failure to cite any authority at all in violation of Rule 28, we have not considered the merits of three of the assignments of error because that violation of the rules impaired our ability to review the merits of the appeal. Although counsel's other errors are inexcusablethe requirement of double-spacing and inclusion of the standard of review are well-known those errors do not affect our ability to review this appeal, and we, therefore, choose not to impose any further sanctions.
Affirm.
Judges BRYANT and STEELMAN concur.
NOTES
[1] Plaintiff's brief also does not contain an index and is not paginated with the result that the Table of Cases and Authorities, contrary to Rule 26(g)(2), does not reference the pages in the brief at which each authority appears. Further, the brief also fails to reference the pages of the record at which the assignments of error appear as required by Rule 28(b)(6). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1339968/ | 660 S.E.2d 24 (2008)
McDOWELL et al.
v.
STATE of Georgia.
No. A07A2406.
Court of Appeals of Georgia.
March 7, 2008.
Reconsideration Denied March 26, 2008.
Herbert Shafer, Atlanta, for appellant.
Gwendolyn Keyes Fleming, District Attorney, William T. Sakrison, Assistant District Attorney, for appellee.
ADAMS, Judge.
Kali McDowell appeals from a final judgment of forfeiture and distribution of certain property confiscated in connection with a drug trafficking investigation. On appeal he contends the trial court should have granted his motion to dismiss the complaint.
On August 14, 2006, the State of Georgia issued a summons and complaint for forfeiture in response to two claims for recovery of confiscated property, one from Ronald Woods and one from McDowell. Woods's property is not at issue in this appeal. The complaint alleged that McDowell sought the return of $13,500 in currency and a 2001 Ford truck. The complaint further alleged that in connection with the drug trafficking investigation, a search warrant had been obtained for the truck; a backpack containing eight ounces of suspected marijuana and the cash was found therein; and the truck and *25 currency were subject to forfeiture pursuant to OCGA § 16-13-49. Detective K.L. Biggs verified that these facts and others within the complaint were "made from my own personal knowledge and[ ] are true and correct to the best of my belief."
On August 21, 2006, McDowell filed an answer to the complaint and alleged ownership of the truck and the currency, which he claimed were unlawfully seized. McDowell deposed Detective Biggs. He then apparently moved to dismiss no motion is in the record[1] and later amended the motion on February 12, 2007. On May 18, the trial court denied the motion. On June 18, the court entered a final order finding that the truck and currency were contraband and would therefore be forfeited.
1. McDowell first contends the court erred by failing to dismiss the State's complaint because it was supported by a false affidavit. He offered portions of Biggs's deposition in which she admitted she did not have personal knowledge of all the facts. As she later clarified, however, her verification was based on her own personal observation of the property seizure as well as other information that she gathered from other officers during the investigation.
The forfeiture statute requires that the State's complaint "shall be verified on oath or affirmation by a duly authorized agent of the state in a manner required by the laws of this state." OCGA § 16-13-49(o)(1). But "[a] judgment may not be set aside for any defect in the pleadings or the record that is aided by verdict or amendable as a matter of form." OCGA § 9-12-15. And "failure to verify a petition is an amendable defect. [(Cit.)]" Harvard v. Walton, 243 Ga. 860, 861(1), 257 S.E.2d 280 (1979). See also Harper v. Atlanta Milling Co., 203 Ga. 608, 610-611, 48 S.E.2d 89 (1948) (lack of proper verification does not demand dismissal).
In its order, the trial court specifically found the detective to be credible. And at the forfeiture hearing, the court considered other evidence together with testimony from Detective Biggs and other witnesses and determined that the State had proved that the property at issue was subject to forfeiture, a conclusion that has not been challenged on appeal. We find no abuse of discretion in the court's denial of the motion to dismiss on this ground. See Bracewell v. Cook, 192 Ga. 678(2), 16 S.E.2d 432 (1941) (petition with defective verification might be retained in court where "other satisfactory proofs" are submitted); BEA Systems v. WebMethods, 265 Ga.App. 503, 504, 595 S.E.2d 87 (2004) (same).
2. McDowell next contends that dismissal was warranted because the court failed to hold a hearing within 60 days of the date he filed his answer August 21, 2006. The hearing was held March 7, 2007. The applicable Code section provides that a hearing must be held within 60 days of service of the complaint:
If an answer is filed, a hearing must be held within 60 days after service of the complaint unless continued for good cause and must be held by the court without a jury.
OCGA § 16-13-49(o)(5). And the statutory requirement is mandatory. State v. Henderson, 263 Ga. 508, 510-511, 436 S.E.2d 209 (1993).
In this case, McDowell filed an answer before service could be effected and waived any defense of insufficient service by failing to raise the defense in his pleading. OCGA § 9-11-12(b); Amaechi v. American Honda Finance Corp., 251 Ga.App. 591(1), 554 S.E.2d 536 (2001). The State argues that, therefore, the 60-day period never began to run. But, "waiver by appearance is in effect a substitute for service, and the time the appearance is made `is the equivalent of the time service of process is made in a *26 normal case.' [Cit.]" Keith v. Alexander Underwriters Gen. Agency, 219 Ga.App. 36, 39, 463 S.E.2d 732 (1995). Therefore time began to run on the 60-day requirement at the time that McDowell answered.
The State next argues that McDowell was responsible for the delay. See, e.g., Turner v. State of Ga., 234 Ga.App. 878, 508 S.E.2d 223 (1998) ("[T]he respondent/property owner in a forfeiture action may waive such requirement by seeking a continuance.") (citation omitted.) A hearing was scheduled within 60 days of the answer but counsel for McDowell filed a notice of conflict and the hearing was not held. But notice of a court scheduling conflict is required by court rules and does not, standing alone, amount to a waiver of time requirements. Cf. Fisher v. State, 273 Ga. 721, 722, 545 S.E.2d 895 (2001) ("[S]ince the filing of a notice of conflicts is mandatory under the rules, it cannot be evidence that defendant consented to have his case tried at a later term.").
The State did not obtain another rule nisi until January 17, 2007, and the hearing was then scheduled for March 7, 2007. Thus, no hearing was requested for 125 days from the date of the conflict letter, and no hearing was held until approximately 175 days after the conflict letter. This court has held that even if a continuance is granted for good cause thereby causing the State to miss the original 60-day deadline, "the outermost limits of a continuance would be another 60-day period before either the matter is heard or another continuance is granted." Blanks v. State of Ga., 240 Ga.App. 175, 178(1), 522 S.E.2d 770 (1999). See, e.g., Griffin v. State of Ga., 250 Ga.App. 93, 94(1), 550 S.E.2d 138 (2001) (dismissal warranted where court failed to conduct hearing within 60 days of last continuance); Rice v. State of Ga., 246 Ga.App. 414, 415-416(2), 541 S.E.2d 58 (2000) (dismissal warranted where no hearing scheduled within 60 days of continuance for good cause).
Finally, the trial court held that dismissal was not warranted because an alternative Code section applied that does not contain the 60-day requirement. Subsection (n) of OCGA § 16-13-49 provides an alternate procedure for cases that involve personal property with a value of $25,000 or less. See Robinson v. State of Ga., 209 Ga.App. 446, 447(2), 433 S.E.2d 707 (1993). But that Code section ultimately provides that "the district attorney shall file a complaint for forfeiture as provided in subsection (o) or (p)," OCGA § 16-13-49(n)(5), both of which include the 60-day requirement at issue in this case.
The judgment of forfeiture must therefore be reversed.
Judgment reversed.
ANDREWS, P.J., and ELLINGTON, J., concur.
NOTES
[1] Although McDowell has attached the purported motion to his brief on appeal, we cannot consider it. We are limited in our review to matters contained in the appellate record, and a party cannot use his brief as a procedural device to add evidence to the record. "It is an ancient and honored tenet of law that we do not take evidence from the briefs of parties, we do not get evidence from outside the record, and we do not accept assertions of fact or evidence which were not before the trial court." (Citations and punctuation omitted.) Demetrios v. State, 246 Ga. App. 506, 510, n. 14, 541 S.E.2d 83 (2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1339963/ | 377 S.C. 512 (2008)
660 S.E.2d 271
Ex Parte Brandon SMITH, as Personal Representative of the Estate of Tracy Smith, Deceased, Appellant
v.
AUTO-OWNERS INSURANCE COMPANY, Respondent,
In re Lewis Lesesne Scott, Plaintiff,
v.
Wayne K. McGraw, Jr., Defendant.
No. 4363.
Court of Appeals of South Carolina.
Submitted December 1, 2007.
Filed January 2, 2008.
Withdrawn, Substituted and Refiled March 31, 2008.
*513 Daniel Lawrence Prenner, of Charleston, for Appellant.
Robert Eric Davis, of Spartanburg, for Respondent.
CURETON, A.J.:
In this action to recover under a policy of underinsured motorist coverage, the Estate of Tracy Smith (the Estate) argues the statutory definition of "insured" does not restrict an insured from having more than one household for purposes of insurance coverage. We affirm.[1]
FACTS
Ernest and Brenda Smith (collectively the Smiths) purchased land in Spartanburg County and established a residence there (the Spartanburg County home) in the 1970s. Later, the Smiths subdivided some of the acreage and deeded ownership of ten acres to each of their four sons. Ernest retained, in his name alone, ownership of this home and the land immediately surrounding it. In 1989, while still living at *514 the Spartanburg County home, the Smiths purchased a second home in Laurens County (the Laurens County home).
The Smiths lived at the Spartanburg County home, periodically visiting the Laurens County home as their "summer home." When Brenda retired in November of 1999, she moved to the Laurens County home. While he visited his wife in Laurens County on occasion, Ernest continued to work full-time and lived at the Spartanburg County home. Ernest retired in March of 2003 and moved to the Laurens County home with Brenda. However, Ernest continued to work part-time in Spartanburg County after his retirement. Ernest occasionally stayed in the Spartanburg County home when working and kept some personal items and clothing there. Ernest did not have his driver's license updated to reflect his Laurens County address. However, Ernest stated he "considered [his] household after March 2003 to be with [his] wife" at the Laurens County home.
Tracy Smith was the Smiths' 42-year-old son. In May of 2004, Tracy was living in the Spartanburg County home. He would occasionally visit his parents at the Laurens County home, but he did not live there. On May 24, 2004, Tracy was a passenger in an automobile owned and driven by Wayne K. McGraw, Jr. McGraw's vehicle collided with Lewis Lesesne Scott's vehicle, and Tracy was killed in the accident. Tracy had no automobile insurance at the time of his death.
At the time of Tracy's death, Ernest owned and paid taxes on the Spartanburg County home. He did not maintain insurance on that home. The Smiths insured their automobiles through Auto-Owners Insurance Company (Auto-Owners). The automobile insurance policy listed the Laurens County home as the Smiths' residence.
After the accident, Scott sued McGraw. Tracy's son, Brandon Smith, intervened on behalf of the Estate and subsequently joined Auto-Owners as a defendant. Scott and McGraw settled with each other and with the Estate and are not parties to this appeal. The Estate and Auto-Owners submitted the issue of "whether Tracy Smith qualifies as an insured under Ernest and Brenda Smith's underinsured motorist coverage" to the trial court for determination. In an order dated September 28, 2006, the circuit court ruled Tracy Smith was *515 not an insured party under his parents' policy. This appeal followed.
STANDARD OF REVIEW
The determination of coverage under an insurance policy is an action at law. Nationwide Mut. Ins.Co. v. Prioleau, 359 S.C. 238, 241, 597 S.E.2d 165, 167 (Ct.App.2004); see also Kizer v. Kinard, 361 S.C. 68, 71, 602 S.E.2d 783, 785 (Ct.App.2004) (determination of whether underinsured motorist coverage applies is an action at law). In an action at law, tried without a jury, the appellate court's standard of review extends only to the correction of errors of law. Pope v. Gordon, 369 S.C. 469, 474, 633 S.E.2d 148, 151 (2006). We will not disturb the trial court's findings of fact unless those findings are wholly unsupported by the evidence or controlled by an erroneous conception or application of the law. Gordon v. Colonial Ins. Co. of Cal., 342 S.C. 152, 155, 536 S.E.2d 376, 378 (Ct.App.2000).
The determination of resident relative status is a question of fact, and thus, we will not disturb the circuit court's ruling if the record contains any evidence supporting it. Id. at 155, 536 S.E.2d at 378.
LAW/ANALYSIS
Estate argues the circuit court erred in ruling that Tracy Smith was not an insured resident of his parents' household. We disagree.
In South Carolina, the definition of "insured" includes "relatives" of the named insured and his or her spouse, as long as those relatives are "resident[s] of the same household." S.C.Code Ann. § 38-77-30(7) (2002). In this case, no party disputes that Tracy was a relative of the Smiths. A determination of whether Tracy qualified as an insured under his parents' policy necessarily requires an examination and a comparison of where Tracy and each of the named insureds resided. The circuit court engaged in factfinding concerning Ernest and Tracy's presence at both the Spartanburg County and Laurens County homes and ruled Tracy did not reside in the same household as the Smiths. Therefore, because neither *516 party disputed Tracy lived at the Spartanburg County home, the circuit court's order implicitly ruled that Ernest resided in the Laurens County household.
Section 38-77-30(7) of the South Carolina Code defines "insured" to include both the insured person or persons named in a policy and "while resident of the same household, the spouse of any named insured and relatives of either." No statute provides guidance concerning whether an insured may maintain more than one household simultaneously. Although the courts have contemplated the meaning of "resident relative" on numerous occasions,[2] the issue of whether an insured may reside in multiple households simultaneously is one of first impression. Our task here is limited to determining whether facts in the record supported the circuit court's finding the Smiths and Tracy did not reside in the same household. Consequently, we do not reach the issue of whether an insured may reside in multiple households.
The circuit court found the evidence conclusively established Tracy and his parents resided in two separate households in May 2004. To reach this conclusion, the circuit court necessarily undertook a two-prong analysis. First, the circuit court determined where each of the Smiths resided. The record reflects that in May 2004, Tracy's only residence was the Spartanburg County home. Tracy occasionally visited his parents at the Laurens County home but did not live there. In May 2004, Brenda's only residence was the Laurens County home. In May 2004, Ernest lived at the Laurens County home with Brenda, having moved there from the Spartanburg County home when he retired in March of 2003. However, Brenda testified that Ernest kept clothes, toiletries, and other items at the Spartanburg County home for his personal use *517 when he stayed there following his retirement. Ernest maintained duplicate items at the Laurens County home.
The conflict in this matter revolves around the time Ernest spent at the Spartanburg County home, the time Ernest resided in the Laurens County home, and his intention with respect to these homes and his son. Because the record supports the assertions that Ernest resided in both homes, the circuit court was required to proceed to the second prong of its analysis.
In the second prong of the analysis, the circuit court applied the Buddin standard of "one, other than a temporary or transient visitor, who lives together with others in the same house for a period of some duration, although he may not intend to remain there permanently." 250 S.C. at 339, 157 S.E.2d at 636. We note that in 1996, our supreme court adopted a similar but somewhat more stringent approach to determining residency. State Farm Fire & Casualty Co. v. Breazell, 324 S.C. 228, 478 S.E.2d 831 (1996). Under the Waite test enunciated in Breazell, a person resides in a household with another if he or she:
1) liv[es] under the same roof; 2) in a close, intimate, and informal relationship, and 3) where the intended duration of the relationship is likely to be substantial, where it is consistent with the informality of the relationship and from which it is reasonable to conclude that the parties would consider the relationship in contracting about such matters as insurance or in their conduct in reliance thereon.
Breazell, 324 S.C. at 231, 478 S.E.2d at 832 (citing A.G. by Waite v. Travelers Ins. Co., 112 Wis. 2d 18, 331 N.W.2d 643 (Ct.App.1983)).
In applying the Waite test to Ernest's two possible households, we agree with the circuit court that Ernest was a resident of the Laurens County home and was a temporary, transient visitor to the Spartanburg County home. Waite requires residents to "liv[e] under the same roof ... in a close, intimate, and informal relationship" that anticipates both a substantial length and some durability. Id. Brenda and Ernest lived in the Laurens County home together as husband and wife, thus satisfying the first two factors. Ernest considered his home to be with Brenda at the Laurens County home. *518 His purpose in leaving that home was to work, and he returned there when not working. Ernest and Brenda's living arrangements in the Laurens County home also satisfied the third factor, that the relationship be lengthy and durable. Using the Laurens County address, Ernest and Brenda purchased homeowners and automobile insurance, filed joint tax returns, received mail, and paid bills. These acts clearly satisfy the final factor, confirming Ernest's residency at the Laurens County home under Waite.
By contrast, Ernest's presence at the Spartanburg County home does not appear to satisfy all of the Waite factors for residency. Ernest and Tracy did indeed live together, at least for part of each week. Ernest's work schedule necessitated his visits to Spartanburg County. Depending upon his employer's needs, he would be in Spartanburg between two and four days per week. With regard to the second Waite factor, Ernest and Tracy appear to have enjoyed a "close, intimate, and informal relationship," given that they were father and son and the record does not indicate that their living arrangement included any restrictions or formal division of household responsibilities. However, this relationship fails to satisfy the third factor. No evidence in the record indicates Ernest and Tracy intended their living arrangement to be substantially long or durable or that they treated their living arrangement as anything but a matter of temporary convenience. Ernest and Tracy did not insure their automobiles together or share the responsibilities of taxes or household bills. Ernest did not insure the Spartanburg County home at all. Although Ernest may have spent up to four nights per week in the Spartanburg County home, it appears he stayed there merely as a matter of convenience and in lieu of renting a hotel room.
Therefore, the circuit court did not err in finding Ernest had only one household in Laurens County that he shared with his wife. His use of the Spartanburg County home did not constitute maintenance of a second household, and Tracy did not qualify as an insured under his parents' automobile insurance coverage.
CONCLUSION
The circuit court did not err in finding Tracy did not qualify as an insured under his parents' automobile insurance coverage. *519 The record indicates Tracy lived in Spartanburg County and his parents lived in Laurens County. Further, Ernest's occasional visits to the Spartanburg County home did not constitute establishment of a household with Tracy. Therefore, Tracy was not an insured under his parents' policy. Accordingly, the order of the circuit court is
AFFIRMED.
HUFF and PIEPER, JJ., concur.
NOTES
[1] We decide this case without oral argument pursuant to Rule 215, SCACR.
[2] See, e.g., Buddin v. Nationwide Mut. Ins. Co., 250 S.C. 332, 340, 157 S.E.2d 633, 637 (1967) (asserting nephew who actively participated in uncle's household activities and who did not intend to live elsewhere was a resident relative of uncle); Auto-Owners Ins. Co. v. Horne, 356 S.C. 52, 68, 586 S.E.2d 865, 874 (Ct.App.2003), cert. denied August 4, 2004 (finding child of divorced parents was not a resident relative of her non-custodial parent's household); Auto Owners Ins. Co. v. Langford, 330 S.C. 578, 584, 500 S.E.2d 496, 499 (Ct.App.1998) (holding grandchild and great-grandchild who occasionally visited named insured were not "insureds"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1339967/ | 660 S.E.2d 111 (2008)
STATE of North Carolina
v.
Rocky Lee DEWALT.
No. COA07-196.
Court of Appeals of North Carolina.
May 6, 2008.
Attorney General Roy Cooper, by Assistant Attorney General Meredith Jo Alcoke, for the State.
Glenn, Mills & Fisher, P.A., by Carlos E. Mahoney, Durham, for defendant appellant.
McCULLOUGH, Judge.
Defendant appeals from judgments entered after a jury verdict of guilty of trafficking in cocaine by possession; possession with intent to manufacture, sell, or deliver cocaine; possession of marijuana less than one-half ounce; and two counts of communicating threats. We determine there was no prejudicial error.
FACTS
While on patrol on 10 January 2006, North Carolina State Trooper Eddie Michael Stone observed a white Jeep Cherokee swerve over the center line while driving south on U.S. 421. Trooper Stone then pulled the vehicle over and issued a warning citation to the driver, Rita Ashburn. The other passengers in the Jeep were J.T. Harris, Kenny Thompson, Rocky Dewalt ("defendant"), and defendant's two-year-old child. Trooper Stone subsequently contacted Detective Eric Ronald Ball with the Yadkin County Sheriff's Office, who arrived approximately five minutes *113 later. Lieutenant Richard Nixon arrived shortly thereafter.
Upon arrival, Detective Ball instructed defendant to exit the vehicle and searched him for weapons. As defendant exited the vehicle, Detective Ball observed a small popcorn bag on the floor of the vehicle between defendant's feet. Inside of the popcorn bag was a second bag containing marijuana and 46.8 grams of crack cocaine.
After discovering the controlled substances, Detective Ball handcuffed defendant and put him in the backseat of Lieutenant Nixon's patrol car. Detective Ball then finished his search of the vehicle. When he completed his search, Detective Ball returned to the patrol car, told defendant he was under arrest, and informed defendant of his Miranda rights. Detective Ball then asked defendant who owned the drugs found in the vehicle. In response, defendant stated that all of the "dope" belonged to him. Detective Ball then transported defendant to the sheriff's office. During the proceedings that followed, defendant threatened the lives of both Trooper Stone and Detective Ball.
On 23 August 2006, defendant was convicted of trafficking in cocaine by possession, possession with intent to manufacture, sell or deliver cocaine, possession of marijuana less than one-half ounce, and two counts of communicating threats by a jury in Yadkin County Superior Court before Judge John O. Craig, III. Defendant gave notice of appeal on 23 August 2006.
I.
Defendant argues the trial court erred by denying defendant's motion to suppress incriminating statements obtained by the State. We disagree.
In reviewing a trial court's ruling on a motion to suppress, the trial court's findings of fact are conclusive if supported by competent evidence. State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001). However, determinations by the trial court of whether a custodial interrogation was conducted, whether defendant made inculpatory statements voluntarily in response to such interrogation, and whether such statements are admissible at trial are conclusions of law, and thus fully reviewable on appeal. State v. Smith, 180 N.C.App. 86, 97, 636 S.E.2d 267, 274 (2006); Buchanan, 353 N.C. at 336, 543 S.E.2d at 826. "`[T]he trial court's conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found.'" State v. Golphin, 352 N.C. 364, 409, 533 S.E.2d 168, 201 (2000) (quoting State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001).
A custodial interrogation refers to "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 706 (1966); see State v. Young, ___ N.C.App. ___, ___, 651 S.E.2d 576, 579-80 (2007). "For Fifth Amendment purposes, included within the meaning of `questioning' are any actions that police `should know are reasonably likely to elicit an incriminating response from a suspect.'" State v. Morrell, 108 N.C.App. 465, 470, 424 S.E.2d 147, 150, appeal dismissed, cert. denied, disc. review denied, 333 N.C. 465, 427 S.E.2d 626 (1993) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297, 308 (1980)). In a criminal trial, "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination" provided by the Fifth Amendment to the United States Constitution. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. Before a defendant is questioned, and absent the implementation of other fully effective means,
[h]e must be warned . . . that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must *114 be afforded to him throughout the interrogation.
Id. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. Following these warnings, the suspect may waive effectuation of his rights, so long as the waiver is made "voluntarily, knowingly and intelligently." Id. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 707. If law enforcement officers fail to advise a suspect of his rights, any statements made by the suspect in response to custodial interrogation will be deemed inadmissible. Morrell, 108 N.C.App. at 470, 424 S.E.2d at 151.
In the case sub judice, defendant was arrested after Detective Ball found drugs in a bag near defendant's feet. After being frisked and handcuffed, defendant was placed in a patrol car while the police continued to search for drugs. Once the search was completed, Detective Ball arrested defendant and asked him to identify the owner of the drugs. In response, defendant informed Detective Ball that the drugs belonged to him. At trial, defense counsel objected to the introduction of defendant's inculpatory statements and moved that they be suppressed. In his motion, defendant asserted that he was not informed of his rights, in accordance with Miranda v. Arizona, prior to being questioned by Detective Ball. As this questioning amounted to custodial interrogation, defendant argued his inculpatory responses were inadmissible under Miranda and should be suppressed.
Before ruling on defendant's motion, the trial court conducted a hearing outside of the presence of the jury to determine whether defendant's inculpatory statements were admissible. During this hearing, Detective Ball testified that, after he finished searching the Jeep for drugs, he returned to the patrol car and read defendant his Miranda rights. Detective Ball's testimony was supported by Lieutenant Nixon, who testified he clearly heard Detective Ball inform defendant of his Miranda rights. According to Detective Ball's testimony, after receiving the Miranda warnings, defendant indicated that he did not want a lawyer. Detective Ball then began to question him. When asked to whom the drugs belonged, defendant responded that all of the drugs belonged to him. Detective Ball further testified that he was unable to obtain a written waiver from defendant because he did not carry the waivers with him on patrol. After considering the evidence, the trial court denied defendant's motion to suppress, holding:
So I will hereby find, based upon well, let me first note that although the defendant did not testify in the voir dire hearing, he did submit a sworn affidavit which the Court has considered in this matter in which he states that on January the 10th, 2006, he was placed in custody by the sheriff's department without first being advised of his constitutional rights, was interrogated by Deputy Ball and gave certain statements which may tend to incriminate him in the charges. The Court finds that based upon the testimony of Detective Ball and of Lieutenant Nixon that the defendant was, in fact, handcuffed and therefore was in custody and that based upon the statements of these two individuals and their testimony he was read his Miranda rights.
And the Court, based upon the experience of these sheriff's deputies, will find that when they say he was Mirandized, the Court finds that he was fully Mirandized and advised of his right to remain silent and his right to have an attorney present when he is questioned or when he makes any sort of statement.
The Court also finds that it was not an interrogation as might come under the normal definition or construction of that word. It was more of a question asked. It was not like he was the term interrogation usually implies a lengthy series of questions and that does not appear to be the case here.
Also it appears he was just asked one question or maybe another question. The Court will note that it is reasonable to believe the testimony of these two deputies who say that they do not routinely carry the Miranda waiver forms with them in their patrol cars but that it is normally done back in a police interview room and that is when the waiver forms are normally done and that when they are out in the *115 field it is their practice to Mirandize defendants orally.
The Court finally notes that based upon the testimony of Detective Ball that they were unable to question the defendant any further or have him sign a Miranda waiver form because of his acting out and being obstreperous and disruptive at the magistrate's office and in addition just his general demeanor was such that they had to go ahead and place him in detention, in the detention facility before they had a chance to conduct any sort of interview like they might normally do in such a situation.
So based upon those findings of fact, I believe that the Miranda rights were properly done and that under the circumstances the alleged inculpatory statement made by the defendant to Detective Ball will be allowed.
In further support of the denial of defendant's motion, the trial court later added: "[B]ased upon my consideration of the testimony and of the evidence that I am concluding that the defendant's statement was made after a knowing and voluntary waiver of his rights that were read to him."
A.
On appeal, defendant first argues the trial court incorrectly determined that he was advised of his constitutional rights in compliance with Miranda v. Arizona. According to defendant, the prosecution failed to present sufficient evidence that Detective Ball provided defendant with each of the four warnings required by Miranda. Therefore, defendant asserts his inculpatory statements, in response to Detective Ball's questioning, were inadmissible at trial. Although defendant argued at trial that these statements were inadmissible, his current argument relies on a different rationale than the argument advanced at trial. Before the trial court, defendant objected to the introduction of the inculpatory statements on the grounds that he had not been advised of his Miranda rights prior to interrogation. The trial court subsequently held a hearing, outside the presence of the jury, to determine whether the arresting officers had informed defendant of these rights. As defendant asserted that no Miranda warnings were provided, the trial court focused its inquiry on determining whether the officers informed defendant of his Miranda rights before they questioned him. During this hearing, the trial court was presented with testimony from two officers confirming that the Miranda warnings had been given prior to the questioning. Detective Ball, the arresting officer, testified that he "read him his Miranda rights." Further testimony, provided by Lieutenant Nixon, confirmed that Detective Ball had advised defendant of his rights prior to questioning. When asked by the prosecutor if these warnings included "basically that he has a right to remain silent, that he can have an attorney if he wanted to, so on and so forth[?]" Lieutenant Dixon responded in the affirmative. Thus, the trial court was presented with sufficient evidence to support a conclusion that defendant had received Miranda warnings before being questioned by Detective Ball.
In defendant's argument on appeal, he no longer contends that no Miranda warnings were provided. Rather, defendant objects to the introduction of the inculpatory statements on the grounds that the prosecution presented insufficient evidence that Detective Ball provided each of the four warnings required by Miranda. Thus, defendant's argument on appeal challenges the adequacy of these warnings, not their existence. While clear testimony as to the presence of each of the four Miranda warnings is preferred, a review of the record reveals defendant did not preserve this issue for appellate review. "In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R.App. P. 10(b)(1) (2008). "Even alleged errors arising under the Constitution of the United States are waived if defendant does not raise them in the trial court." State v. Jaynes, 342 N.C. 249, 263, 464 S.E.2d 448, 457 (1995), cert. denied, 518 U.S. 1024, 116 S. Ct. 2563, 135 L. Ed. 2d 1080 (1996). In addition, as defendant has not alleged the trial court committed plain error, he has waived this argument. See N.C. *116 R.App. P. 10(c)(4) (2008). Therefore, defendant's assignment of error is dismissed.
B.
Defendant also argues that the trial court erred as a matter of law in concluding that defendant was not subject to interrogation while in police custody. Accordingly, defendant contends the trial court incorrectly admitted defendant's inculpatory statements.
Upon a review of the record, we find defendant was correct in his assertion that the questioning performed by Detective Ball amounted to custodial interrogation. In determining the admissibility of defendant's inculpatory statements, the trial court stated that the questioning performed by Detective Ball "was not an interrogation as might come under the normal definition or construction of that word." Although this statement does not expressly indicate that no interrogation was conducted for the purposes of a Miranda analysis, the statement is not helpful and mischaracterizes the appropriate legal standard to be applied. Nevertheless, as previously discussed, the trial court was presented with sufficient evidence to support its conclusions that defendant was informed of his constitutional rights, in accordance with Miranda, prior to questioning and that defendant subsequently provided a knowing and voluntary waiver of those rights. Thus, the record contained sufficient evidence to support the trial court's determination that the inculpatory statements made by defendant were admissible at trial. On review, the question before this Court is "whether the ruling of the court below was correct, and not whether the reason given therefor is sound or tenable." State v. Blackwell, 246 N.C. 642, 644, 99 S.E.2d 867, 869 (1957). "[A] correct decision of a lower court will not be disturbed because a wrong or insufficient or superfluous reason is assigned." Id. In this instance, the trial court properly determined that defendant waived his rights, and that the inculpatory statements stemming from Detective Ball's questioning were admissible. Therefore, we hold that the trial court did not err in admitting the inculpatory statements, and that any error present in the court's conclusion that defendant was not in custody was harmless beyond a reasonable doubt. See N.C. Gen.Stat. § 15A-1443 (2007).
Defendant has failed to show his inculpatory statements, made in response to Detective Ball's questioning, were inadmissible at trial. We therefore hold the trial court did not err in denying defendant's motion to suppress these statements.
No prejudicial error.
Chief Judge MARTIN and Judge ELMORE concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1339969/ | 660 S.E.2d 449 (2008)
HAGEMANN
v.
BERKMAN WYNHAVEN ASSOCIATES, L.P.
No. A07A2316.
Court of Appeals of Georgia.
March 28, 2008.
*451 Jenkins & Olson, Peter R. Olson, Cartersville, for appellant.
Smith, Curry & Hancock, Philip E. Beck, Helen H. Pope, Atlanta, for appellee.
BERNES, Judge.
Bill Hagemann appeals from the trial court's denial of his motion for attorney fees under OCGA § 9-11-11.1 in his dispute with Berkman Wynhaven Associates, L.P. ("Wynhaven"), following Wynhaven's voluntary dismissal of its lawsuit. For the reasons that follow, we find that the trial court abused its discretion in failing to award an appropriate sanction to Hagemann and reverse.
The facts of this case are heavily disputed by the parties. Nonetheless, it is clear that the dispute involves approximately 18.5 acres of property owed by Wynhaven and located in the City of Marietta (the "Wynhaven Property"). The Wynhaven Property is adjacent to approximately 7.5 acres of property owned by Hagemann.
In 2005, Wynhaven entered into a contract to sell the Wynhaven Property to a third-party who, in turn, planned to develop the property. The third-party developer also attempted, although failed, to purchase Hagemann's property. In accordance with the terms of the sales contract, Wynhaven and the developer submitted an application to the City of Marietta to rezone the Wynhaven Property. Wynhaven alleges that, throughout the time that the rezoning application was pending, Hagemann privately met with and negotiated with the developer, successfully obtaining certain concessions and accommodations from the developer related to the planned redevelopment.
After holding several public hearings on the zoning application, which Hagemann attended and publically opposed, the City granted the application. Following the application approval, Hagemann filed a lawsuit against the City in which he alleged procedural defects in the way that the rezoning had been accomplished (the "Hagemann Suit"). The developer successfully moved to intervene in the Hagemann Suit. The City *452 then moved the court to amend its pleading by asserting counterclaims against Hagemann, contending that the Hagemann Suit "was initiated for the improper purpose of seeking to stop the redevelopment of validly rezoned property in order to obtain private benefits."[1] See Hagemann v. City of Marietta, 287 Ga.App. 1, 7(1), 650 S.E.2d 363 (2007).
The trial court granted the City's motion to add the counterclaims and this Court granted interlocutory review of the order. Hagemann, 287 Ga.App. at 4, 650 S.E.2d 363. We struck the City's counterclaims under the anti-SLAPP statute, OCGA § 9-11-11.1(b), holding that the City falsely verified the claims because neither the City nor its attorneys could have reasonably believed that the counterclaims were warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.[2] Id. at 6-7, 650 S.E.2d 363.
In February 2006, the developer requested an extension to the scheduled March 2006 closing on the Wynhaven Property, claiming that, due in part to funding considerations, it could not close the sale while the Hagemann Suit was pending. The closing was extended on several more occasions, which Wynhaven attributes to the developer's inability to settle the Hagemann Suit. Ultimately, the deal failed, due at least in part to the unresolved litigation.
In April 2006, Wynhaven filed a lawsuit against Hagemann in which it alleged that the Hagemann Suit "lack[ed] both merit and any good faith basis" and had "effectively delayed and interfered with the closing of the sale of the Wynhaven Property" between Wynhaven and the developer.[3] Wynhaven claimed that Hagemann's actions led to the postponement and ultimate termination of the sales contract between itself and the developer. Consequently, Wynhaven asserted claims against Hagemann of tortious interference with business relations; tortious interference with contractual relations; and conspiracy to tortiously interfere with business and contractual relationships and to commit fraud.
Hagemann notified Wynhaven of its belief that the lawsuit violated OCGA § 9-11-11.1, the anti-SLAPP statute, contending that Wynhaven sought damages from him solely because he asked the court to review the City's rezoning decision. In response, Wynhaven submitted affidavits in accordance with OCGA § 9-11-11.1(b) that purported to verify that Wynhaven's claims were well-grounded; that the acts forming the basis for its claims were not privileged communications under OCGA § 51-5-7(4); and that the claims were not interposed for any improper purpose. See OCGA § 9-11-11.1(b).
In January 2007, Wynhaven amended its complaint to include a claim for defamation based upon "numerous [media] articles and letters written by, or containing quotes and information furnished by, Hagemann, which were, and were known by Hagemann . . . to be[ ] false, inaccurate, incomplete, and/or misleading" and which "did not concern any pending zoning or TAD application, or any other pending legislative, executive, judicial, or official proceeding, and were not designed to redress any grievance Mr. Hagemann may *453 have suffered." The amended complaint also purported to detail allegedly tortious conduct committed by Hagemann prior to his filing of the Hagemann Suit.
Hagemann moved to dismiss Wynhaven's lawsuit as violative of OCGA § 9-11-11.1. Prior to the trial court holding a hearing on Hagemann's motion, Wynhaven dismissed its lawsuit without prejudice.
Hagemann filed a timely motion for attorney fees and expenses in accordance with OCGA § 9-11-11.1(f). In support of his motion, Hagemann argued that Wynhaven's lawsuit fell within the ambit of OCGA § 9-11-11.1 because it related solely to his challenge to the city's zoning decision and that Wynhaven's verifications filed in support of the complaint were false. The trial court held a hearing on Hagemann's motion, but summarily denied his request for attorney fees. This appeal followed.
The anti-SLAPP statute was adopted by our Legislature in order "to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances." OCGA § 9-11-11.1(a). Its stated purpose is to prevent a "chill[ing]" of the valid exercise of these rights "through abuse of the judicial process." Id. In furtherance of this goal, the Legislature requires that any claim that falls within the purview of OCGA § 9-11-11.1 be accompanied by a written verification
certify[ing] that the party and his or her attorney of record, if any, have read the claim; that to the best of their knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under paragraph (4) of Code Section 51-5-7; and that the claim is not interposed for any improper purpose such as to suppress a person's or entity's right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation.
OCGA § 9-11-11.1(b). Upon a finding that a party has falsely verified a complaint, the statute provides that
the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include dismissal of the claim and an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee.
(Emphasis supplied.) Id. See Metzler v. Rowell, 248 Ga.App. 596, 598-599(1), 547 S.E.2d 311 (2001).
On appeal, Hagemann argues, as he did in the trial court, that he is entitled to the attorney fees that he has incurred as a result of this lawsuit because Wynhaven's claims violated the anti-SLAPP statute and that its verifications were false. To determine that a claim has been falsely verified, and therefore justify a sanction against the filing party, there must first be a threshold finding that the anti-SLAPP statute applies and that verification was required. Atlanta Humane Society v. Harkins, 278 Ga. 451, 452, 603 S.E.2d 289 (2004). In analyzing the breadth of conduct protected by the statute, we note that this Court has previously held that OCGA § 9-11-11.1 creates an "expansive definition" of protected speech, which includes "any statement made to any official proceeding authorized by law; or any statement made in connection with an issue under consideration by any official proceeding." (Punctuation omitted; emphasis in original.) Metzler, 248 Ga.App. at 598(1), 547 S.E.2d 311. See OCGA § 9-11-11.1(c).
If the anti-SLAPP statute applies, the next inquiry is whether the verifications were false, which requires a showing that
(a) the claimant or his attorney did not reasonably believe that the claim was well grounded in fact and that it was warranted by existing law or a good faith argument for the modification of existing law, (b) the claim was interposed for an improper purpose, or (c) the defendant's statements *454 were privileged pursuant to OCGA § 51-5-7(4).
Atlanta Humane Society, 278 Ga. at 452, 603 S.E.2d 289.
The filing of the Hagemann Suit is conduct that lies squarely within the purview of OCGA § 9-11-11.1(b), as Hagemann was exercising his "right to petition government for a redress of grievance" for a rezoning decision. Although Wynhaven does not dispute this fact, it argues that the anti-SLAPP statute "does not sanitize . . . Hagemann's tortious behavior specifically his interference with the contractual and business relationships" between Wynhaven and the developer.
A careful reading of Wynhaven's original complaint reveals, however, that the pinnacle of the "tortious behavior" about which Wynhaven complains was the filing of the Hagemann Suit. And it was the filing of the Hagemann Suit that Wynhaven claims interfered with its contractual and business relationship with the developer. See Complaint, Par. 31 ("Although the Hagemann Suit lacks both merit and any good faith basis, it has effectively delayed and interfered with the closing of the sale of the Property from [Wynhaven] to [the developer]."). Consequently, the anti-SLAPP statute required verification of the claims in the original lawsuit. See Hagemann, 287 Ga.App. at 6(1), 650 S.E.2d 363. See also Metzler, 248 Ga.App. at 598-599(1), 547 S.E.2d 311.
The record further establishes that the verifications filed in support of its original complaint were false as defined in OCGA § 9-11-11.1(b). Both a Wynhaven executive and its counsel certified that "[t]o the best of [their] knowledge, information, and belief formed after reasonable inquiry, the claims are well grounded in fact and are warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." Yet, this Court has previously held that, "as a matter of law, a claim for tortious interference with contractual relations cannot be predicated upon an allegedly improper filing of a lawsuit." (Citations and punctuation omitted.) Phillips v. MacDougald, 219 Ga.App. 152, 155(2)(g), 464 S.E.2d 390 (1995). See also Metzler, 248 Ga.App. at 598-599(1), 547 S.E.2d 311 (affirming the dismissal of a lawsuit by a property owner against local residents and an environmental group for tortious interference with a sales option contract, holding that "[t]he framing of [plaintiff's] claims as tortious interference with contract or business relations does not render the assertion of privilege [established by the anti-SLAPP statute] inapplicable"). Consequently, the allegations of the complaint reveal with certainty that Wynhaven would not be entitled to relief under any state of provable facts asserted in support of its claims. See Hagemann, 287 Ga.App. at 6(1), 650 S.E.2d 363 ("At best, the allegations of [the City's] counterclaims imply that Hagemann's declaratory judgment action makes him liable [for abusive litigation] under [OCGA § 51-7-80 et seq.].").
Because the verifications filed in conjunction with Wynhaven's original complaint were false, we next address whether the trial court abused its discretion in failing to sanction Wynhaven. In so doing, we reiterate that our legislature unambiguously provided that,
[i]f a claim is verified in violation of [the anti-SLAPP statute], the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include dismissal of the claim and an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee.
(Emphasis supplied.) OCGA § 9-11-11.1(b). "[I]t can scarcely be doubted that by the use of the word `shall' a legislative mandate, and not a mere permission, was imported into the enforcement provisions of the Act at [OCGA § 9-11-11.1(b)]." (Citation and punctuation omitted.) State Ethics Comm. v. Long, 223 Ga.App. 621, 626(1), 478 S.E.2d 618 (1996) (holding that the Georgia Ethics in Government Act required the superior court to make an award of attorney fees in favor of the State Ethics Commission despite a finding that the defendant acted in good faith). See also Legum v. Crouch, 208 Ga.App. 185, *455 188(3), 430 S.E.2d 360 (1993) ("This [C]ourt has generally held that, unless the context clearly indicates otherwise, the word `shall' is to be read as a word of command.") (citation and punctuation omitted); Spivey v. Mayson, 124 Ga.App. 775, 777, 186 S.E.2d 154 (1971) ("The word `shall' in a statute is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission.") (citation and punctuation omitted).
The terms of the anti-SLAPP statute are "plain and reasonable in consequences" and therefore must be interpreted and enforced as written. Legum, 208 Ga. App. at 188(3), 430 S.E.2d 360. A sanction against a claimant must be imposed upon a finding that the complaint and verification were filed in violation of OCGA § 9-11-11.1(b). We therefore expressly disapprove of any language in Walden v. Shelton, 270 Ga.App. 239, 241-244, 606 S.E.2d 299 (2004) that may be read to imply that, upon the finding that both a complaint and verification violate OCGA § 9-11-11.1, the imposition of a sanction lies within the discretion of the trial court.
Because Wynhaven's verifications were false as that term is defined under OCGA § 9-11-11.1, the trial court was obligated to impose, within its discretion, an appropriate sanction. Upon remand, if the trial court in the exercise of its discretion chooses to award attorney fees to Hagemann as the sanction, then it should apportion its award to the amount attributable only to the claims asserted by Wynhaven in its original complaint. In its amended complaint, Wynhaven added a defamation claim for comments allegedly made in bad faith that falls outside of the scope of the anti-SLAPP statute. Wynhaven further alleged additional tortious conduct by Hagemann that occurred prior to and entirely separate from the filing of the Hagemann Suit conduct that likewise does not come within the anti-SLAPP statute.
We agree with the dissent's analysis of the anti-SLAPP statute that fashioning an appropriate sanction in the face of a false verification lies within the trial court's discretion. We cannot agree with the dissent's conclusion, however, that Wynhaven's voluntary dismissal of its lawsuit can somehow be viewed as a sanction. A sanction is court imposed. Compare Meister v. Brock, 268 Ga.App. 849, 850(1), 602 S.E.2d 867 (2004) (a voluntary dismissal "is not a judgment (or other order) rendered by a court") (citation and punctuation omitted). In contrast, a voluntary dismissal by the plaintiff pursuant to OCGA § 9-11-41(a)(1) occurs "without order or permission of court." Moreover, Hagemann is not being deprived merely of "the psychic pleasure of having the trial court forcibly dismiss the complaint." Rather, he defended a lawsuit for nearly a year that we have concluded could not have been filed with the belief that the claims were well-founded. In such a situation, the Legislature has not only mandated that a sanction be imposed, but expressly provided that a voluntary dismissal by the plaintiff does not preclude the imposition. OCGA § 9-11-11.1(f). Finally, Wynhaven not only denies that it dismissed its complaint because it was filed in violation of the anti-SLAPP statute, but continues to assert its position that it intends to refile the lawsuit at a later date.[4] We simply cannot agree that Wynhaven's voluntary dismissal under these circumstances constituted a court imposed sanction.
Judgment reversed and case remanded.
BARNES, C.J., and ANDREWS, P.J., JOHNSON, P.J., and RUFFIN, MILLER, ELLINGTON, PHIPPS and ADAMS, JJ., concur.
SMITH, P.J., concurs specially.
BLACKBURN, P.J., and MIKELL, J., dissent.
SMITH, Presiding Judge, concurring specially.
I fully concur with the majority's conclusion that we should disapprove this court's opinion in Walden v. Shelton, 270 Ga.App. 239, 606 S.E.2d 299 (2004), because it could *456 be read to imply that whether a sanction will be imposed lies within the discretion of the trial court. I also fully concur with the remand of this case to the trial court for the imposition of an appropriate sanction. OCGA § 9-11-11.1(b). I write separately to emphasize that an appropriate sanction could include one or all of the following: a fine, public reprimand, litigation costs or attorney fees.
BLACKBURN, Presiding Judge, dissenting.
I respectfully dissent. As held in Walden v. Shelton,[5] although OCGA § 9-11-11.1 mandates the imposition of an appropriate sanction, it allows the trial court the discretion to choose from various options in fashioning the form of that sanction. Nevertheless, disapproving Walden, the majority takes that discretion out of the hands of the trial court and mandates that the form of the sanction here must include the imposition of reasonable expenses. I respectfully disagree and would rule that Walden was rightly decided.
The majority twice quotes the pertinent language of OCGA § 9-11-11.1(b), each time italicizing the word "shall" and notably not italicizing the word "may." Italicizing both words places the matter in better context:
If a claim is verified in violation of this Code section, the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include dismissal of the claim and an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee.
(Emphasis supplied.) OCGA § 9-11-11.1(b). Thus, the statute is clear: where a claim is wrongfully verified, the court shall impose an appropriate sanction. The word "appropriate" clearly connotes that the court has discretion as to the form of this sanction. This connotation is confirmed by the statute's description of the possible forms of that sanction, which may include dismissal of the claim (with no reference to whether that dismissal be with or without prejudice) and may also include an order to pay reasonable expenses, which expenses may include reasonable attorney fees. The majority bypasses all the discretionary "may" and "appropriate" language and mandates instead here that the sanction must include an award of reasonable expenses.
I believe this approach ignores the clear intent of the plain language used in the statute, which contemplated that the trial court would exercise its discretion in fashioning an appropriate sanction. Although the statute sets forth possible forms of that sanction, it does not require that the court impose a particular form of that sanction. As stated in Walden, supra, 270 Ga.App. at 242, 606 S.E.2d 299:
While OCGA § 9-11-11.1(b) states that the trial court shall impose an appropriate sanction, it further states such sanction may include dismissal of the claim and an order to pay expenses and attorney fees. To construe the statute as mandating the award of attorney fees upon a finding that the claim was verified in violation of the Code section, renders the words, "which may include," meaningless. It is clear from the language of the statute, that the legislative intent was to grant the trial court discretion, under the facts and circumstances of each case, in awarding attorney fees and expenses.
(Emphasis in original.) Cf. Hagemann v. City of Marietta[6] ("[i]f a claim is verified in violation of the anti-SLAPP statute, the court, upon motion or upon its own initiative, is authorized [not mandated] to grant `the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney fee'") (punctuation omitted; emphasis supplied).
Here, the trial court held a hearing on the matter and determined that under the circumstances of this case, the dismissal of the claim sufficed as a sanction. The majority *457 and defendant Hagemann lament that the dismissal was effectuated by the plaintiff Wynhaven rather than by the court. Apparently, Hagemann feels that he was cheated of the psychic pleasure of having the trial court forcibly dismiss the complaint as opposed to observing Wynhaven capitulate to his demands for a dismissal. I do not perceive a party's psychic or pecuniary desire for a particular form of a sanction as a basis for forcing the trial court to impose attorney fees, especially in light of the trial court's decision that the dismissal itself was a sufficiently appropriate sanction (even if technically effectuated by the plaintiff's hand).
For these reasons, I respectfully dissent.
I am authorized to state that Judge MIKELL joins in this dissent.
NOTES
[1] Specifically, the City alleged that it had allocated future tax revenues and was seeking bond financing to support the redevelopment plan; that Hagemann's suit could impede the bond financing; that Hagemann's lawsuit would delay or stop the redevelopment of the Wynhaven Property; that Hagemann had stated publically that the purpose of his lawsuit was to obtain zoning concessions from the developer; and that the Hagemann Suit constituted "an abuse of process for the sole purpose of obtaining personal and private gain." (Punctuation omitted.) Hagemann v. City of Marietta, 287 Ga.App. 1, 2, 650 S.E.2d 363 (2007).
[2] Our holding focused specifically on the damages being sought by the City, namely the City's novel attempt to recover from Hagemann damages associated with the "diminution in tax digest and the costs of providing public services to its residents" in the event that the Hagemann Suit prevented the redevelopment. Id. at 7(1), 650 S.E.2d 363.
[3] Specifically, Wynhaven alleged that Hagemann's conduct surrounding the planned development and his challenge to the rezoning decision was motivated in bad faith by his pecuniary interest in his own property; his failed attempt to sell his adjacent property to the developer; his animosity toward the developer and desire to prevent the developer from owning the property; and his desire to postpone the closing indefinitely for his sole benefit.
[4] We further note that although the dissent states that "the trial court held a hearing on the matter and determined that under the circumstances of this case, the dismissal of the claim sufficed as a sanction," nothing in the record indicates that the trial court made such a finding.
[5] Walden v. Shelton, 270 Ga.App. 239, 242, 606 S.E.2d 299 (2004).
[6] Hagemann v. City of Marietta, 287 Ga.App. 1, 8(2), 650 S.E.2d 363 (2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1339475/ | 293 S.E.2d 632 (1982)
Guster McCOLLUM
v.
GROVE MANUFACTURING COMPANY.
No. 8118SC966.
Court of Appeals of North Carolina.
July 20, 1982.
*634 Stanley E. Speckhard and Donald K. Speckhard, Greensboro, for plaintiff-appellant.
Bateman, Wishart, Norris, Henninger & Pittman by Robert J. Wishart, Burlington, for defendant-appellee.
BECTON, Judge.
I
FACTS AND PROCEDURAL HISTORY
The parties stipulated that the plaintiff was struck by a crane on 15 June 1977 while working for Carolina Cast Stone Company, Inc. (Carolina Cast Stone); that the crane had been designed and manufactured by the defendant, Grove Manufacturing Company, in June 1975 and had subsequently been sold to Carolina Cast Stone; and that the crane was in substantially the same condition at the time of the accident as it had been when it left the defendant's possession.
Plaintiff's evidence tended to show that Carolina Cast Stone manufactured heavy pre-cast stones for the building industry, that these stones were stored in vertical positions leaning on A-frames in the company yard, and that cranes were used to move the stones about. The boom of the crane manufactured by defendant was positioned in front of the crane operator and to his right, resulting in a blind spot to the operator. The plaintiff was in the operator's blind spot when struck. At the time of the accident, Charles Mattison was operating the crane, and plaintiff's job was to connect the cable on the boom of the crane to the stones to be moved. Charles Cagle, who was then yard supervisor for Carolina Cast Stone, was standing to the crane operator's left.
Cagle testified that "as the crane approached, [plaintiff] got into a position that disturbed me a bit, and I yelled to [plaintiff] to move but it was too late and he was pinned between the stone and the crane." According to Cagle, the crane operator told Cagle that he had heard Cagle call to the plaintiff and had reacted by hitting both the accelerator and the brakes at the same time. Cagle stated further:
We customarily used a signal man when engaged in close work. I don't believe the work we were engaged in at the time of the accident could be described as close work. There was no signal man at that time.... I was not directing Charlie Mattison, the crane's operator, immediately prior to the accident.
Mattison testified differently. He stated that he was responding to a signal from Cagle as he approached the stone panel. He also testified that the plaintiff came in front of the crane in his blind spot and that he did not see plaintiff. Mattison denied telling Cagle that he had panicked or that he had hit both the accelerator and the brakes at the same time. The crane was on a large concrete pad. Mattison testified, "The right front wheel slipped off of [the concrete] and that's when it hit the panel and that's where I saw [plaintiff]."
Plaintiff testified that the crane stopped and was stationary for a few minutes before he went in front of it, and that "before I knew anything, the crane was on me."
Phillip Joseph Bisesi, an expert in mechanical engineering, testified that the boom was in the center of the crane and that the cab was behind it to the left of center, resulting in an obstruction to the operator's vision across a 25° angle. He indicated that the front bumper of the crane was 95 inches across and that the operator's vision was obstructed across 60 *635 inches of the bumper, assuming no allowance for any change of position of the operator. Bisesi testified that a curved mirror placed on the front of the crane would enable the operator to see in front of the entire bumper.
At the close of plaintiff's evidence, the defendant moved for a directed verdict, and the motion was allowed. The plaintiff's motion for a new trial was denied, and plaintiff appeals.
II
ANALYSIS
For the reasons that follow, the trial court was correct in granting defendant's motion for a directed verdict and in denying plaintiff's motion for a new trial.
"A motion by a defendant for a directed verdict under G.S. 1A-1, Rule 50(a) tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff." Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977). On such a motion, the court must consider the evidence in the light most favorable to the plaintiff, taking all evidence which tends to support plaintiff's position as true, resolving all evidentiary conflicts in favor of the plaintiff, and giving the plaintiff the benefit of all inferences reasonably to be drawn in his favor. Daughtry v. Turnage, 295 N.C. 543, 246 S.E.2d 788 (1978). All evidence admitted, whether competent or not, must be given full probative force. Beal v. Supply Co., 36 N.C.App. 505, 244 S.E.2d 463 (1978). The testimony of the plaintiff's witnesses must be accepted at face value. Rayfield v. Clark, 283 N.C. 362, 196 S.E.2d 197 (1973).
(1) The Negligence Claim
The essential elements of an action for products liability based upon negligence include "(1) evidence of a standard of care owed by the reasonably prudent person in similar circumstances; (2) breach of that standard of care; (3) injury caused directly or proximately by the breach, and; (4) loss because of the injury." City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 656, 268 S.E.2d 190, 194 (1980).
As to the standard of care, a manufacturer is under a duty to those who use his product to exercise that degree of care in its design and manufacture that a reasonably prudent man would use in similar circumstances. Corprew v. Chemical Corp., 271 N.C. 485, 157 S.E.2d 98 (1967); Gwyn v. Motors, Inc., 252 N.C. 123, 113 S.E.2d 302 (1960). The manufacturer of a machine which is dangerous because of the way in which it functions, and patently so, owes to those who use it a duty merely to make it free from latent defects and concealed dangers. In a case against such a manufacturer, the plaintiff must prove the existence of a latent defect or of a danger not known to the plaintiff or other users. Tyson v. Manufacturing Co., 249 N.C. 557, 107 S.E.2d 170 (1959); Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14 (1957); Hamel v. Wire Corp., 12 N.C.App. 199, 182 S.E.2d 839, cert. denied, 279 N.C. 511,183 S.E.2d 687 (1971). Liability may also be imposed upon a manufacturer who sells a product that is inherently dangerous. Wyatt v. Equipment Co., 253 N.C. 355, 117 S.E.2d 21 (1960); Lemon v. Lumber Co., 251 N.C. 675, 111 S.E.2d 868 (1960); Davis v. Siloo Inc., 47 N.C.App. 237, 267 S.E.2d 354, disc. review denied, 301 N.C. 234, 283 S.E.2d 131 (1980). We conclude that the plaintiff's evidence herein failed to show any breach of the standard of care.
a) Restricted Visibility
Plaintiff first alleges negligence in the restricted visibility afforded the operator by the design of the crane. Initially, we note that the evidence tended to show that some restricted visibility is inevitable. Cagle testified: "All cranes have a visibility problem." The plaintiff's expert witness, Phillip Bisesi, testified that the operator's forward visibility could be improved by positioning the boom of the crane behind the operator, but that this would create a visibility problem to the rear. Assuming, arguendo, that the positioning of the boom of the crane herein may be held a defect, plaintiff's evidence tended to show that the *636 resulting restricted visibility was a condition known to all people involved in the use of the crane. Plaintiff himself testified as follows:
To some point I knew that the crane had a blind spot.... Part of my job as hookup man was to know where the crane was.... I guess you would say that it was part of my job to stay out of the way of the crane if it was going to hurt me. I knew there were times when the crane operator couldn't see me but I could see the crane.
Although plaintiff testified that he did not know that he was in the operator's blind spot at the time of the accident, the important point is that he did know of the restricted visibility of the crane operator. Thus, there is no evidence of a latent defect or of a concealed or unknown danger in the design of the crane.
b) Lack of Warning Device
Plaintiff next alleges negligence in defendant's failure to equip the crane with warning devices. He offered evidence that the crane had no bells or lights to warn those nearby of its forward movement. Bisesi testified that the crane operator's visibility could have been improved by placing a mirror on the front of the crane.
Under our case law, a manufacturer has no duty to equip his product with safety devices to protect against defects and dangers that are obvious. We examine the controlling cases. The plaintiff in Tyson v. Manufacturing Co. was looping tobacco on a tobacco harvester. The harvester lurched, and the plaintiff lost her balance and caught her hand between a sprocket and conveyor chain. Plaintiff charged the manufacturer of the harvester with negligence in that the sprockets were inadequately guarded. Our Supreme Court affirmed a judgment of nonsuit in favor of the manufacturer. It wrote:
In cases dealing with a manufacturer's liability for injuries to remote users, the courts have always stressed the duty of guarding against hidden defects and of giving notice of concealed dangers. [Citations omitted.] As was said in Lane v. City of Lewiston, 91 Me. 292, 39 A. 999, "no one needs notice of what he already knows."
Plaintiff was experienced in looping tobacco on a tobacco harvester, and had been working on the tobacco harvester on which she was injured most of the summer in 1955, when tobacco was being pulled. There is no evidence of negligence in the design or construction of the machine. Entirely lacking is the slightest evidence that the sprockets and conveyor chain on the platform of the tobacco harvester had a latent defect or a danger concealed from plaintiff, or that they were in operation inherently dangerous to her.
249 N.C. at 561-62, 107 S.E.2d at 173.
In Kientz v. Carlton, the plaintiff was injured when his foot went underneath a lawn mower and was struck by the rotating blade. He brought an action against Carlton, for whom he was working at the time, and Sears, Roebuck & Co., who had sold the mower to Carlton. He presented evidence that the mower was not equipped with certain safety features. Nonsuit was granted Sears, and our Supreme Court affirmed, noting in part: "The absence of the several alleged safety features was obvious, not latent." 245 N.C. at 241, 96 S.E.2d at 18.
Both Tyson and Kientz cited with approval the New York case of Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). Campo, however, was overruled by Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976). Many other jurisdictions have also rejected the Campo "patent danger" rule. See Annot., 95 A.L.R. 3d 1066, § 3 (1979).
Tyson and Kientz remain the law in this jurisdiction. These cases squarely hold that a manufacturer has no duty to equip his product with safety devices to protect against defects and dangers that are obvious. Since Tyson and Kientz were decided in the 1950's and since the "patent danger" rule has been overruled in the jurisdiction (New York) in which it had its genesis, our courts and General Assembly may be
persuaded by reasoning in cases from other jurisdictions to the effect that the law *637 ought to discourage misdesign rather than to encourage it in its obvious form, and that it would be anomalous to hold that a manufacturer had a duty to install safety devices but that a breach of that duty results in no liability, if the danger is obvious, for the very injury the duty was meant to protect against.
95 A.L.R. 3d 1066, 1075.[1]
Although the Micallef rationalethat the "patent danger" rule (1) encourages manufacturers to be "outrageous in their design," id. at 1074; and to eliminate safety devices when hazards are obvious; and (2) places the entire accidental loss on the person injured even though the manufacturer was partly at faultis particularly compelling,[2] it does not help the plaintiff in this case. For even if we could say that defendant negligently failed to equip the crane with warning devices, plaintiff has nevertheless failed to show that such negligence proximately caused the injuries he sustained. The evidence points unerringly to the conclusion that the crane slipped off of the concrete pad, and thatnot the lack of a warning devicecaused the plaintiff's injuries.
c) Inherently Dangerous Instrumentality
Plaintiff has also alleged that the crane was inherently dangerous. We disagree. The crane was being used for its intended purpose at the time of the accident. Mattison operated the crane on a daily basis from April 1976 until the fall of 1980 without hitting anyone other than the plaintiff. Carolina Cast Stone began using the crane in the summer of 1975 and was still using it at the time of trial in March 1981. During that time the crane was involved in only one other accident, and that accident involved the boom hitting a power line. Cagle, who was responsible for supervising safety procedures for Carolina Cast Stone, testified, "[I]n my opinion, the Grove Manufacturing crane was not unusually dangerous for the purpose it was intended, but was only dangerous in the sense that all heavy equipment is dangerous."
We find no evidence that the crane was an inherently dangerous instrumentality. See generally, Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974) (forklift held not inherently dangerous per se); Tyson v. Manufacturing Co. ("Entirely lacking is the slightest evidence that the sprockets and conveyor chain on the platform of the tobacco harvester ... were in operation inherently dangerous to [plaintiff]." 249 N.C. at 562,107 S.E.2d at 173); Kientz v. Carlton (evidence held insufficient to show lawn mower inherently dangerous instrumentality).
(2) The Strict Liability and Breach of Warranty Claims
Plaintiff also alleged claims based upon strict liability and breach of *638 warranty in his Complaint. He does not argue in support of these theories on appeal, but we have considered them and find that the directed verdict was proper. In products liability cases, the duty of the manufacturer in tort must be determined by the principles of negligence. We have not adopted the doctrine of strict liability except for a few exceptional situations not applicable herein. See Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504 (1980); Davis v. Siloo Inc., Fowler v. General Electric Co., 40 N.C.App. 301, 252 S.E.2d 862 (1979). Plaintiff may not recover on a breach of warranty theory since he presented no evidence of an express warranty addressed to him and since he lacks the contractual privity necessary for an action based upon an implied warranty.[3]See Davis v. Siloo Inc.; Fowler v. General Electric Co.
The judgment below is Affirmed.
HEDRICK and HILL, JJ., concur.
NOTES
[1] G.S. Chap. 99B, dealing with products liability, became effective October 1979 but does not specifically address the issue raised herein. Moreover, the statutes do not affect pending litigation, and this case was filed in September 1979.
[2] It should be noted that the "patent danger" rule remains the law in several jurisdictions. See generally, Annot., 95 A.L.R. 3d 1066 §§ 4 and 5. For example, interpreting Georgia case law, the Fifth Circuit Court of Appeals wrote:
Appellant argues that because the New York courts have overruled Campo, ... we should find that Campo's rationale no longer stands as the law of Georgia. His reasoning, however, is faulty. Although Georgia courts have adopted Campo's holding, they are not controlled by the New York judiciary's subsequent decisions. We, on the other hand, in reviewing this diversity case, are absolutely bound by the decisions of the Georgia courts, one of which recently affirmed the Campo approach.
Wansor v. George Hantscho Co., Inc., 595 F.2d 218, 220, n.7 (5th Cir. 1979) (citations omitted).
Similarly, in an action against the manufacturer of a crane to recover for injuries sustained when the crane came in contact with a power line, the Minnesota Supreme Court, in Halvorson v. American Hoist and Derrick Co., 307 Minn. 48, 57, 240 N.W.2d 303, 308 (1976), said:
We hold that American Hoist did not owe this injured plaintiff any duty to install safety devices on its crane to guard against the risk of electrocution when the record demonstrated that risk was: (1) obvious; (2) known by all of the employees involved; and (3) specifically warned against in American Hoist's operations manual.
[3] Again, because plaintiff filed this suit in September 1979, he cannot take advantage of the Products Liability Act, G.S. Chap. 99B, which became effective 1 October 1979. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725498/ | 65 Mich. App. 642 (1975)
237 N.W.2d 594
ALLEN
v.
KELLEY
Docket No. 21701.
Michigan Court of Appeals.
Decided November 14, 1975.
Boter, Dalman, Murphy & Bidol (by Richard D. Persinger), for plaintiffs.
*643 Edward C. Duckworth, for defendant.
Before: McGREGOR, P.J., and D.E. HOLBROOK and N.J. KAUFMAN, JJ.
AFTER REMAND
PER CURIAM:
By an opinion of August 29, 1975, we remanded this action to the trial court for specific findings of fact pursuant to GCR 1963, 517.1. Allen v Kelley, 64 Mich. App. 616; 236 NW2d 707 (1975). The trial court made those findings, and we now review them. The pivotal findings made by the trial court were that the disputed trust items were not the conception of the deceased settlor, that the agreement was never explained to the settlor and that the settlor signed the trust instrument without knowledge of its contents. The court found that these facts required its holding that the trust agreement was void.
While we review actions in equity on a de novo basis, we give great weight to the trial court's findings of fact and will not overturn such findings except where they constitute an abuse of discretion. Cerling v Hedstrom, 51 Mich. App. 338; 214 NW2d 904 (1974). We find from our review of the record that the trial court was correct in holding the trust instrument void. The facts demonstrated that the settlor did not manifest an intent to create the trust, an element necessary to the validity of the instrument. Osius v Dingell, 375 Mich. 605; 134 NW2d 657 (1965).
Affirmed. Costs to defendant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644017/ | 4 So.3d 1231 (2008)
HUDSON
v.
STATE.
No. 2D07-6044.
District Court of Appeal Florida, Second District.
October 17, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1339634/ | 296 S.E.2d 664 (1982)
STATE of North Carolina
v.
Robert Leroy WILHELM.
No. 8219SC273.
Court of Appeals of North Carolina.
November 2, 1982.
*666 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. W. Dale Talbert, Raleigh, for the State.
Davis & Corriher by James A. Corriher, Salisbury, for defendant-appellant.
VAUGHN, Judge.
Defendant's first argument is that the trial court erred in denying his motion for change of venue or a special venire.
If, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:
(1) Transfer the proceeding to another county..., or
(2) Order a special venire....
G.S. 15A-957.
Defendant has the burden of proof on a motion for change of venue, and to prevail, he must show that there is a reasonable likelihood that the prejudicial publicity complained of will prevent a fair trial. State v. McDougald, 38 N.C.App. 244, 248 S.E.2d 72 (1978), review denied, 296 N.C. 413, 251 S.E.2d 472 (1979). A motion for change of venue is addressed to the sound discretion of the trial judge, absent a showing of abuse of discretion, the ruling will not be overturned. State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).
In his brief, defendant contends that various articles published in the local newspaper were inflammatory and prejudicial. Of the twelve newspaper articles he introduced into evidence, ten were written in November 1979, and were about a different trial. Only two rather short articles were about this case. At trial, defendant admitted that the articles were factual, not inflammatory. News coverage which accurately reports the circumstances of the case is not so innately conducive to the inciting of local prejudices as to require a change of venue. State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981); State v. Matthews, 295 N.C. 265, 245 S.E.2d 727 (1978), cert. denied, 439 U.S. 1128, 99 S. Ct. 1046, 59 L. Ed. 2d 90 (1979).
Defendant's second argument is that the trial judge expressed an opinion as to the credibility of the evidence after the following questions on cross-examination:
Q: [Mr. Corriher]: Mr. Neuner, did you do a physical count yourself of any of these pills?
A: No, sir, I did not.
Q: And did you check for latent fingerprints on the four or five plastic bags you testified about?
A: The five clear plastic bags.
Q: You didn't find any latent fingerprints of Mr. Robert Wilhelm on any of those bags, did you, sir?
A: Made no comparison. I found several fragmentary latent prints, but they did not contain a sufficient number of identifying characteristics to determine who they belonged to.
Q: You found no latent fingerprints of Robert Wilhelm on those bags, did you, sir?
Mr. Bowers: Your Honor, the State objects.
The Court: I think he answered that. Sustained. If you want him to testify to those he found to be identical or substantially *667 similar to those of Mr. Wilhelm and those found not to be similar, I'll let him go into it if you want him to. Now, do you want him to go all the way into this?
Mr. Corriher: No, sir.
The Court: Then the objection would be sustained.
"A trial judge may not express ..., any opinion in the presence of the jury on any question of fact to be decided by the jury." G.S. 15A-1222. It is immaterial how the opinion is expressed, whether in the examination of a witness, in the rulings upon objections to evidence, or in any other manner. State v. Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972). The judge's comments should be considered in light of all the facts and circumstances. State v. Brady, 299 N.C. 547, 264 S.E.2d 66 (1980).
In this case, it is clear that the trial judge's comments, taken in context, were not prejudicial. He was merely sustaining an objection to a question that was already asked and answered, and indicating that he would allow Mr. Corriher to go deeper in that line of questioning.
Defendant's third argument is that the trial court erred in denying his motion to suppress the evidence seized by the police.
It is a "basic principle of Fourth Amendment law" that searches and seizures inside a home without a warrant are presumptively unreasonable. Yet it is also well settled that ... [t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.
Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).
Defendant contends that a nonconsensual search was made in his apartment after the SBI agents left to obtain a warrant. Although the State's witnesses deny making an illegal search, defendant's witnesses said that they saw men looking into defendant's cars and refrigerator. Even if the judge had believed the testimony of defendant's witnesses, no evidence was found in the cars or refrigerator which could have been suppressed.
Defendant contends that the trial court erred by not making findings of fact at the conclusion of the suppression hearing. G.S. 15A-977(d) provides: "If the motion is not determined summarily the judge must make the determination after a hearing and finding of facts...." Section (f) provides: "The judge must set forth in the record his findings of facts and conclusions of law." Since there is no conflict over whether anything was obtained from the alleged illegal search, there was no material conflict in the evidence. Although it is a good practice to make findings of fact, if there is no material conflict in the evidence, it is not error to admit the evidence without making specific findings of fact. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980); State v. Riddick, 291 N.C. 399, 230 S.E.2d 506 (1976), rehearing denied, 293 N.C. 261, 247 S.E.2d 234 (1977).
Defendant's next argument is that the trial court erred in allowing State's exhibits 1, 2, and 3 to be introduced into evidence as 4855, 33, and 1106 units of methaqualone. Defendant contends that since only three tablets were analyzed, the State did not prove that he possessed more than 5,000 tablets.
Mr. McSwain, the forensic chemistry expert, testified that each bag contained uniform, identical tablets, although the tablets in Exhibit 2 were unlike the tablets in Exhibits 1 and 3. He testified that he randomly selected the tablets he tested, and they were methaqualone. When a random sample from a quantity of tablets or capsules identical in appearance is analyzed and is found to contain contraband, the entire quantity may be introduced as the contraband. For example, in State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970), the fact that several capsules, selected randomly out of more than 100 capsules, which were identical in appearance, were found to contain barbiturates, was sufficient evidence to establish that defendant possessed over 100 barbiturates.
*668 We have carefully reviewed defendant's assignments of error and find no error.
No error.
WEBB and WELLS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644016/ | 994 So.2d 1245 (2008)
Derek D. ARCHIE, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-2539.
District Court of Appeal of Florida, Third District.
November 19, 2008.
Derek D. Archie, in proper person.
*1246 Bill McCollum, Attorney General, for appellee.
Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
SUAREZ, J.
The defendant appeals from the trial court's order denying his petition filed under Rule 3.850, Florida Rules of Criminal Procedure. We affirm the trial court's order.
The defendant's petition is time-barred as it is beyond the two year statute of limitations. His direct appeal became final in 1983. Archie v. State, 430 So.2d 461 (Fla. 3d DCA 1983). Additionally, the petition is successive as it is the defendant's third post-conviction appeal seeking relief based on claims of ineffective assistance of trial counsel. See Archie v. State, 420 So.2d 388 (Fla. 3d DCA 1982); Archie v. State, 496 So.2d 976 (Fla. 3d DCA 1986). The claims are not newly discovered. The defendant's claims of ineffectiveness of counsel could have and should have been known at the time of trial, and definitely within two years of the date of conviction.
For the above reasons, we affirm the trial court's denial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743635/ | 771 So. 2d 1231 (2000)
Carlton BLACK, Appellant,
v.
STATE of Florida, Appellee.
No. 4D00-2820.
District Court of Appeal of Florida, Fourth District.
November 1, 2000.
Rehearing Denied December 28, 2000.
Carlton Black, Arcadia, pro se.
No appearance required for appellee.
PER CURIAM.
Appellant Carlton Black seeks review of an order that denied his motion for post-conviction relief. Black argued in his motion that the 1995 sentencing guidelines are unconstitutional. Heggs v. State, 759 So. 2d 620 (Fla.2000). He argued further that his offense (burglary of a structure) took place within the applicable window period for presenting such a challenge. See Trapp v. State, 760 So. 2d 924 (Fla. 2000) (window period began on October 1, 1995, and closed on May 24, 1997).
We affirm that portion of the trial court's order rejecting this challenge. Appellant was sentenced as a habitual offender to a nine-year prison term. See Arce v. State, 762 So. 2d 1003 (Fla. 4th DCA 2000). Compare Smith v. State, 761 So. 2d 419 (Fla. 2d DCA 2000) (trial court declined to treat defendant as a habitual offender but imposed the maximum sentence permitted under the 1995 guidelines). Pursuant to section 775.084(4)(e), Florida Statutes, a habitual offender sentence is not subject to the guidelines provisions of section 921.001, Florida Statutes.
Appellant's challenge to career criminal sentencing provisions in the 1995 laws was also properly rejected because he was not sentenced as a career criminal.
Appellant also argued that his gain-time entitlement was illegally reduced under chapter 95-182, Laws of Florida. We affirm the summary denial of relief on this *1232 claim as well, because appellant's gain-time challenge must first be entertained in the Department of Corrections. If the appellant is not satisfied with its ruling, then he can file a petition for writ of mandamus with the appropriate circuit court. See Clements v. State, 761 So. 2d 1245 (Fla. 2d DCA 2000).
AFFIRMED.
FARMER, GROSS and HAZOURI, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4216639/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 411 MAL 2017
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
TAMARRA GEARY, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 31st day of October, 2017, the Petition for Allowance of Appeal
is DENIED. | 01-03-2023 | 10-31-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1725508/ | 721 So. 2d 744 (1998)
Brian EDWARDS, Appellant,
v.
STATE of Florida, Appellee.
No. 97-3173.
District Court of Appeal of Florida, Fourth District.
November 4, 1998.
*745 Michelle A. Konig of Law Offices of Michelle A. Konig, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
The issue in this case is whether the proceedings in the trial court comported with the minimal procedural requirements for the acceptance of a guilty plea to a charge of violation of probation.
In accepting a guilty plea to a violation of probation, the trial court need not comply with the requirements of Florida Rule of Criminal Procedure 3.172. See Allen v. State, 662 So. 2d 380 (Fla. 4th DCA 1995); Washington v. State, 284 So. 2d 236 (Fla. 2d DCA 1973). Section 984.06, Florida Statutes (1997), requires the court to "advise" the probationer of the violation charges. The probationer should also be told of the potential consequences of a guilty plea, the right to counsel, and the right to a final hearing on violation of probation, at which time a probationer has the "opportunity to be fully heard on his or her behalf in person or by counsel." § 984.06, Fla. Stat. (1997); see State v. Hicks, 478 So. 2d 22 (Fla.1985); Allen; Donley v. State, 557 So. 2d 943 (Fla. 2d DCA 1990); Washington. The right to counsel under Hicks includes the ability to confer with counsel prior to entering a plea. See Schiffer v. State, 617 So. 2d 357 (Fla. 4th DCA 1993).
In this case, the record does not reflect that the trial court adequately advised appellant of his options at the preliminary hearing for violation of probation, either individually, or as part of a group of alleged violaters at the beginning of the court proceeding. Cf. Collins v. State, 710 So. 2d 55 (Fla. 4th DCA 1998). Appellant was given inadequate time to confer with the attorney appointed seconds before the plea and he did not expressly waive his right to confer with counsel. We therefore set aside the guilty plea and sentence, and remand to the trial court for a new violation of probation hearing.
POLEN, GROSS and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2222527/ | 383 Mass. 529 (1981)
420 N.E.2d 897
COMMONWEALTH
vs.
DENNIS G. THERRIEN (and a companion case of the same name).
Supreme Judicial Court of Massachusetts, Hampshire, Suffolk.
January 6, 1981.
May 6, 1981.
Present: HENNESSEY, C.J., BRAUCHER, WILKINS, LIACOS, & ABRAMS, JJ.
Stephen R. Kaplan, Assistant District Attorney, for the Commonwealth.
David A. Robinson for the defendant.
WILKINS, J.
Following the return of a jury verdict that the defendant was guilty of rape, the judge allowed the defendant's motion for a finding of not guilty, ruling that, in *530 the circumstances, the evidence did not warrant a finding of guilty. The Commonwealth has sought to challenge the judge's ruling, both by an appeal from the judge's order and by a complaint filed in the county court seeking relief under G.L.c. 211, § 3. We granted the Commonwealth's application for direct appellate review of its attempted appeal from the judge's order. A single justice of this court has reserved and reported to this court the case entered in the county court.
Initially, these cases present the question whether the Commonwealth has the right to appeal, or otherwise challenge, the order that a finding of not guilty be entered on the offense charged. We conclude that the Commonwealth does have the right to appeal from that order. Because of that conclusion, we need not consider whether, in the absence of a right to appeal, the Commonwealth would have been entitled to seek relief under the general superintendency authority of this court, and, accordingly, we shall order the entry of a judgment dismissing the complaint seeking relief under G.L.c. 211, § 3.[1] Having concluded that the Commonwealth has a right to appeal, we reach the question whether the judge was correct in ruling that, in the circumstances, the jury's verdict was not warranted. We conclude that the verdict was warranted by the evidence and vacate the order allowing the defendant's motion for a finding of not guilty.
A brief recitation of the circumstances that bear on the question of the Commonwealth's right to appeal is appropriate at this point. We leave until later a presentation of the circumstances that relate to the propriety of the judge's order allowing the entry of a finding of not guilty. The trial was held in November, 1979, before a jury in Hampshire *531 County. At the close of the Commonwealth's case, the defendant filed a motion for a required finding of not guilty. See Mass. R. Crim. P. 25 (b), 378 Mass. 896 (1979). The judge denied the motion, and the defendant renewed the motion at the close of the evidence. The judge reserved decision until the verdict was returned, as is permitted by Mass. R. Crim. P. 25 (b) (1). The jury returned a verdict of guilty and answered two questions, a circumstance that becomes important when we consider the propriety of the judge's order. The judge thereafter heard argument of counsel and allowed the motion for a required finding of not guilty.[2]
1. We point out initially that there is no constitutional barrier to the Commonwealth appealing from the order vacating the guilty verdict.
The double jeopardy clause of the Fifth Amendment to the Constitution of the United States, applicable to the States through the Fourteenth Amendment (Benton v. Maryland, 395 U.S. 784, 795-796 [1969]), does not forbid the Commonwealth's appeal, and the defendant makes no such claim. "[W]hen a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause." United States v. Wilson, 420 U.S. 332, 352-353 (1975). See United States v. DiFrancesco, 449 U.S. 117, 130 (1980); United States v. Martin Linen Supply Co., 430 U.S. 564, 569-570 (1977). Deferring action on a motion for a judgment of acquittal until after the jury have returned their verdict is a sensible procedure where the question appears to be close because, by doing so, the judge makes it possible "to reconcile the public interest in the Government's right to appeal from an erroneous conclusion of law with the defendant's interest in avoiding a second prosecution." United States v. Scott, 437 U.S. 82, 100 n. 13 (1978). See United States v. *532 Jenkins, 420 U.S. 358, 365 (1975), cited with approval in United States v. Scott, supra at 91 n. 7, which overruled the Jenkins case in other respects. If the appellate court decides that the judge was wrong, a new trial is not required; the conviction is simply reinstated. See United States v. Forcellati, 610 F.2d 25, 28-30 (1st Cir.1979), cert. denied, 445 U.S. 944 (1980).
It has long been accepted that the Commonwealth may not appeal from an acquittal of a criminal defendant, in spite of the broad supervisory role of this court. See Commonwealth v. Anthes, 5 Gray 185, 207-208 (1855); Commonwealth v. Cummings, 3 Cush. 212, 214 (1849). Where, as here, there has been a conviction, "the considerations are quite different" from those where there was no conviction. Commonwealth v. Hayes, 372 Mass. 505, 508 (1977). For example, without raising any significant double jeopardy question, this court properly may consider, pursuant to statute, a case on further appeal where the Appeals Court has reversed a conviction and ordered judgment for the defendant. See Commonwealth v. Gosselin, 365 Mass. 116, 117 (1974); G.L.c. 211A, § 11. Similarly, we would accept as proper a statute that allowed the Commonwealth to appeal from an order setting aside a verdict of guilty in a criminal case.
In this Commonwealth, the subject of double jeopardy generally has been treated as a matter of common law rather than as a question under the Constitution of the Commonwealth. See Commonwealth v. Diaz, ante 73, 82 (1981); Commonwealth v. Cepulonis, 374 Mass. 487, 491-492 (1978). Any statutory provision for an appeal by the Commonwealth, of course, would overcome any common law rule barring such an appeal. If there is a double jeopardy guaranty to be found in the Constitution of the Commonwealth, we would not interpret it to bar the Commonwealth from challenging an error of law in the setting aside of a verdict of guilty.
2. The Commonwealth may appeal from the allowance of a defendant's renewed motion for a finding of not guilty *533 presented pursuant to Mass. R. Crim. P. 25 (b) (1).[3] General Laws c. 278, § 28E, as appearing in St. 1979, c. 344, § 45, provides that authority. In relevant part, § 28E provides that the Commonwealth may appeal "to the supreme judicial court in all criminal cases from a decision, order or judgment of the [Superior Court] (1) allowing a motion to dismiss an indictment or complaint, or (2) allowing a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure." The 1979 amendment of § 28E was adopted, as its title and preamble state, to conform the General Laws to the Massachusetts Rules of Criminal Procedure and, as § 51 of the act states, to be effective on July 1, 1979, which is the date on which, by order of this court, amendments to the rules of criminal procedure became effective. See 378 Mass. 835 (1979). Two days after § 28E was amended in 1979, St. 1979, c. 346, conforming the General Laws to the Massachusetts Rules of Appellate Procedure, effective July 1, 1979, was enacted. There is no question that these two acts were designed to coordinate the statutes of the Commonwealth with the new rules of this court concerning trials and appeals in criminal cases.
The answer to the central question concerning the Commonwealth's right to appeal in this case turns on the meaning in § 28E of the words "allowing a motion for appropriate relief under Massachusetts Rules of Criminal Procedure." The defendant argues that "a motion for appropriate relief" includes only pretrial motions, such as a motion to suppress evidence. That limited scope was clearly the subject of § 28E prior to its 1979 amendment. See Commonwealth v. McCarthy, 375 Mass. 409, 413 (1978), which concerned a similar situation before the 1979 changes in statutes and rules. The previously relevant provision in § 28E, inserted *534 by St. 1967, c. 898, § 1, authorized an appeal from "a decision, order or judgment of the [Superior Court] (1) allowing a motion to dismiss an indictment or complaint, or (2) allowing a motion to grant appropriate relief under the provisions of [G.L.c. 277, § 47A]." Section 47A, as then amended (see St. 1965, c. 617, § 1, for the relevant language), referred to defenses or objections raised by motions for relief before trial.[4] The defendant continues his argument by asserting that the only portion of the rules of criminal procedure which concerns a motion to grant appropriate relief is Mass. R. Crim. P. 13 (c) (1), 378 Mass. 872 (1979), which refers, in part, to defenses being raised by a motion to dismiss or "by a motion to grant appropriate relief." Rule 13 (c) (2) refers to an objection which is capable of determination without trial of the general issue being "raised before trial by motion." Clearly, rule 13 is concerned only with pretrial motions. Massachusetts R. Crim. P. 15 concerns only appeals from interlocutory rulings. Neither rule 13 nor rule 15, therefore, has anything to do with an appeal from action on a motion after discharge of the jury, such as the defendant here filed pursuant to Mass. R. Crim. P. 25 (b) (1). See G.L.c. 278, § 11, as appearing in St. 1979, c. 344, § 43A.
We conclude that the defendant reads § 28E too narrowly and that § 28E does not apply only to the Commonwealth's appeals from the allowance of a pretrial motion. We have sought to find harmony and not discord in the cooperative effort of the Legislature and this court to coordinate statutes and rules involving procedural matters in the courts of the Commonwealth. See Spence v. Reeder, 382 Mass. 398, 421-422 (1981); Boston Seaman's Friend Soc'y, Inc. v. Attorney Gen., 379 Mass. 414, 416-417 (1980). The *535 reference in § 28E to a motion for appropriate relief must be read more broadly than to refer only to pretrial motions.
Under Mass. R. Crim. P. 30, 378 Mass. 900 (1979), concerning motions for postconviction relief, and of which the Legislature was aware when it enacted § 28E, the Commonwealth is entitled to appeal from a final order allowing a motion for relief, including both the allowance of a motion for a new trial and the allowance of a motion for the defendant's release because the defendant's confinement was imposed in violation of the laws of the Commonwealth. See Mass. R. Crim. P. 30 (c) (8). In common parlance, such motions are motions for appropriate relief. If the Commonwealth may appeal from the allowance of a motion for postconviction relief under rule 30, the right of the Commonwealth to appeal from the postverdict allowance of a motion under rule 25 follows logically. If the defendant had raised his objection to the jury's verdict by a postconviction motion under rule 30 and the judge had allowed that motion on the ground that the verdict was not warranted by the evidence, rule 30 (c) (8) says the Commonwealth could appeal the judge's ruling. If the same legal question were presented by a motion under rule 25 (b) and the judge ruled against the Commonwealth, it would be illogical to deny the Commonwealth the right to appeal that ruling. We think both a motion for postconviction relief under rule 30 and a postverdict motion under rule 25 are motions for appropriate relief under § 28E.[5]
It is clear that the Commonwealth may not appeal the allowance of every defense motion. There are certain motions whose allowance must be treated as terminating the criminal prosecution without any right to appeal. Double jeopardy principles require that there be no appellate review of the allowance of a defense motion for a finding of *536 not guilty after jeopardy attaches and before the jury return their verdict. In such a case, review is to be denied because, even if the Commonwealth were successful on appeal, double jeopardy principles would bar a second trial. See United States v. Martin Linen Supply Co., 430 U.S. 564, 573-574 (1977). Congress has adopted a position on the government's right to appeal in a Federal criminal case which permits government appeals except "where the double jeopardy clause of the United States Constitution prohibits further prosecution." 18 U.S.C. § 3731 (1976). See United States v. Wilson, 420 U.S. 332, 339 (1975). We must, of course, apply a similar limitation to the scope of § 28E, with the further application of whatever greater limits might be found in the restraints of the Constitution of the Commonwealth. To decide the case before us, and not to suggest whether the allowance of any other class of motion might properly be appealed by the Commonwealth in a criminal case, we need simply hold that, pursuant to § 28E, the Commonwealth may appeal from a postverdict allowance of a motion, filed under rule 25 (b) (1), for the entry of a required finding of not guilty.
3. We come then to the substantive question whether the judge was in error in allowing the defendant's renewed motion for the entry of a finding of not guilty. The Commonwealth does not argue that the judge had no authority to allow such a motion. Massachusetts R. Crim. P. 25 (b) (1) explicitly authorizes a judge in the circumstances involved here to act on the reserved motion. General Laws c. 278, § 11, as appearing in St. 1979, c. 344, § 43A, also impliedly authorizes the judge to allow the motion. The question is whether the judge was correct in allowing the motion, and that depends on whether, in the circumstances, the jury were warranted in finding the defendant guilty of rape.
The evidence warranted a verdict of guilty, and, therefore, the judge was in error in ordering the entry of a finding of not guilty. The case was presented to the jury on two theories, that (1) the defendant himself raped the victim and (2) the defendant participated actively in a joint enterprise *537 with another man who raped the victim. At the close of the Commonwealth's case and again at the close of the evidence, there was evidence which, if believed, would have warranted a guilty verdict on the ground of joint venture. The defendant does not argue otherwise here. He relies on the answers that the jury gave to two questions submitted to them.[6] The judge gave the jury a verdict form on which they were requested to indicate a verdict of guilty or not guilty and to answer two questions. The jury indicated on the form that the defendant was guilty. They answered affirmatively the question whether the defendant personally raped the victim, and answered negatively the question whether the defendant participated as a joint venturer in a rape of the victim. The defendant argued to the judge, after the verdict was returned, that the judge should allow the motion for a required finding of not guilty, on which the judge had reserved decision, because the evidence did not warrant a guilty verdict on the theory on which the jury found him guilty. The defendant contended that the judge should disregard all the evidence bearing on the defendant's guilt as a joint venturer in considering whether the evidence warranted a guilty verdict on the theory that the defendant personally raped the victim. The judge apparently accepted this contention. We shall assume, without deciding, that the judge properly could consider this argument under a reserved motion for a finding of not guilty, filed under Mass. R. Crim. P. Rule 25 (b) (1).[7]
In our analysis of the evidence we may consider all the evidence, including evidence that the jury may have disbelieved in arriving at their conclusion that the defendant was not guilty as a joint venturer. Inconsistency of verdicts in criminal cases is not a matter for judicial inquiry. See *538 Commonwealth v. White, 363 Mass. 682, 684-685 (1973), and cases cited. The question whether the defendant raped the victim should be considered in conjunction with all the evidence, including the acts of the other two men.
The evidence warranted the jury's finding of the following. On a July day in 1977, the defendant and two other men, one of whom knew the victim and her sister, invited the victim to go for a ride from South Hadley to an address in Holyoke. After certain intermediate events that need not concern us, except that the victim kept insisting on being taken home, they drove to a secluded place in Belchertown. One of the men, not the defendant, pulled the victim up a footpath to a clearing, despite her protestations. The defendant blocked her attempted retreat. In the presence of all three men, and according to the victim, with the assistance of all three, one of the other men forced her to have intercourse with him. Then the second man had intercourse with the victim, who was crying. The victim was five feet tall and weighed less than 110 pounds. One of the men was six feet, eight inches tall, and weighed over 240 pounds; another weighed 150 pounds, and the defendant weighed over 200 pounds. The victim was afraid of the men and agreed to meet them the next day. As they were preparing to leave, the defendant said that he "didn't get his turn." One of the other men asked the victim to comply, and he "put his arm around [her] throat and he squeezed it a little bit." She answered that "I guess I could do it." The defendant then had oral and vaginal intercourse with the victim. Soon after these events, the victim, who was then hysterical, requested help from a customer at a gasoline station where the men stopped their motor vehicle to buy gasoline.
The defendant argues before us that the victim's words were words of consent and that it was not he who squeezed the victim's neck. In the circumstances, it was a question for the jury whether the Commonwealth proved beyond a reasonable doubt that the defendant had intercourse with the victim against her will. If the victim appears to consent *539 to intercourse because of a threat of a third person or because of fears arising from actions of a third person, and a defendant knew of those threats or of the circumstances causing those fears, such a defendant could properly be found guilty of rape. See People v. Dockery, 20 Mich. App. 201, 206 (1969); State v. Davis, 557 S.W.2d 41, 43 (Mo. App. 1977); State v. Barnett, 85 N.M. 404, 407 (Ct. App. 1973). In Commonwealth v. Burke, 105 Mass. 376, 381 (1870), we recognized, in an analogous situation, that a defendant could be guilty of rape if he knew of acts of a third person that affected the victim's ability to consent.
Because the jury were warranted in finding beyond a reasonable doubt that the defendant himself raped the victim, the judge was in error in ordering the entry of a finding of not guilty. The judge's order is vacated, and the case is remanded for further proceedings.[8] A judgment shall be entered in the county court dismissing the complaint seeking relief under G.L.c. 211, § 3.
So ordered.
LIACOS, J. (dissenting).
I dissent. A basic principle of the common law of England and of this Commonwealth has been that the prosecution has no right of appeal from the entry of a judgment of acquittal. Commonwealth v. Anthes, 5 Gray 185, 207 (1855). Even apart from considerations of double jeopardy, it long has been understood that the Commonwealth has no right of appeal from the entry of a judgment of acquittal absent an express statutory provision authorizing such an appeal. This principle was well stated by Chief Justice Shaw in Commonwealth v. Cummings, 3 Cush. 212, 215 (1849): "[I]t has never been supposed, that an appeal would lie for any party in a criminal case, except where it had been expressly given by statute; nor was it *540 ever claimed, when appeals were largely and liberally allowed in criminal cases, that the commonwealth could appeal from a judgment of acquittal" (emphasis added).
This fundamental principle of our criminal jurisprudence has remained valid from our colonial beginnings until this day. The court, nevertheless, in a strained interpretation of G.L.c. 278, § 28E, and the Massachusetts Rules of Criminal Procedure, brings about a fundamental change of our law which clearly was never contemplated, either by the Legislature as it revised G.L.c. 278, § 28E, by St. 1979, c. 344, § 45,[1] by the drafters of the rules of criminal procedure, or by this court when it promulgated those rules. The court does this without citing a single reference to explicit language which creates such a right, either in the statute, the rules, or the commentary to the rules to support its decision.[2] Nor does it cite any authority to support the proposition that "[t]he reference in § 28E to a motion for appropriate relief must be read more broadly than to refer only to pretrial motions." Supra at 534-535.
I am unable to find in the statutes and the rules relied upon by the court any indication of an intention by the Legislature or the court to alter so dramatically the longstanding practice of this Commonwealth. Rather, these provisions reflect the intent of the Legislature and the court to continue unchanged the prior law permitting appeals by the Commonwealth from orders allowing pretrial motions.
The majority concede that prior to its amendment in 1979, G.L.c. 278, § 28E, provided for appeals by the Commonwealth only from judgments allowing pretrial motions; *541 to wit, from judgments "(1) allowing a motion to dismiss an indictment or complaint, or (2) allowing a motion to grant appropriate relief under the provisions of [G.L.c. 277, § 47A]." Supra at 534. General Laws c. 277, § 47A, inserted by St. 1965, c. 617, § 1, abolished, at least in name, the old forms of pretrial motions, e.g., demurrers, challenges, and motions to quash, and consolidate them under the general heading of a motion to dismiss or grant appropriate relief. See Reporters' Notes to Mass. R. Crim. P. 13 (c), Mass. Ann. Laws, Rules of Criminal Procedure at 262 (1979). Thus, under G.L.c. 277, § 47A, "[d]efenses and objections based on defects in the institution of the prosecution or in the indictment or complaint" could only be raised by these forms of pretrial motions. Like former G.L.c. 277, § 47A, rule 13 of the rules of criminal procedure establishes the form of, and manner for presentation of, pretrial motions. Indeed, rule 13 (c), headed "Motion to Dismiss or to Grant Appropriate Relief," is a restatement of G.L.c. 277, § 47A. See Reporters' Notes, Mass. R. Crim. P. 13 (c) (1979).
Simultaneously with promulgation of the criminal rules, G.L.c. 277, § 47A, and G.L.c. 278, § 28E, were amended "to coordinate the statutes of the Commonwealth with the new rules." Supra at 533. The language of each statute remains essentially unchanged in so far as it relates to questions raised by this appeal, with the exception that, as amended, the statutes refer generally to the rules as the new source establishing the appropriate form of pretrial motions.[3] Before taking a significant departure from the common law, as the majority do today, I would require a far more clear statement of intent from the Legislature than can be gleaned from what appear to be mere "housekeeping" changes.
Since enactment of G.L.c. 277, § 47A, the phrase "motion for appropriate relief" has always designated pretrial *542 motions. See, e.g., G.L.c. 278, § 28E, as amended by St. 1972, c. 740, § 16; Mass. R. Crim. P. 13 (c), 378 Mass. 872 (1979); Mass. R. Crim. P. 15 (b) (1), 378 Mass. 883 (1979). Words used in one definite sense in an act are presumed to be used in the same sense throughout the act and its amendments, unless a different meaning is clearly expressed. Matter of Gagnon, 228 Mass. 334, 338 (1917). Moreover, the majority's broad interpretation of the phrase "motion for appropriate relief" as it appears in G.L.c. 278, § 28E, as amended, would render superfluous the reference in the same sentence to motions to dismiss. Finally, I do not see how Mass. R. Crim. P. 30 (c) (8), 378 Mass. 908 (1979), requires or supports the majority's interpretation of G.L.c. 278, § 28E. It was certainly not within the expressed expectation of this court that promulgation of the rules would lead to such a result.[4]
Since the court does not base its decision on G.L.c. 211, § 3, I need not comment at length on the availability of relief for the Commonwealth under that statute. Suffice it to say that I believe such review may be granted in the extraordinary case under the standards enunciated in Commonwealth v. Cook, 380 Mass. 314, 319-320 (1980).
For the reasons stated above, I would dismiss the Commonwealth's appeal.
NOTES
[1] In the case of Commonwealth v. Gaulden, post 543 (1981), decided today, we consider the Commonwealth's right to seek relief under the general superintendency authority of this court from a ruling, purportedly under Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), reducing a conviction from murder in the second degree to manslaughter, on motion of the defendant.
[2] We do not have here an independent motion under the last sentence of Mass. R. Crim. P. 25 (b) (2) to "set aside the verdict and order ... the entry of a finding of not guilty."
[3] Massachusetts R. Crim. P. 25 (b) (1) provides as follows:
"(1) Reservation of Decision on Motion. If a motion for a required finding of not guilty is made at the close of all the evidence, the judge may reserve decision on the motion, submit the case to the jury, and decide the motion before the jury returns a verdict, after the jury returns a verdict of guilty, or after the jury is discharged without having returned a verdict."
[4] In the same 1979 act that amended § 28E, the Legislature amended § 47A to provide that motions to challenge defects in the institution of a criminal case should be raised "by a motion in conformity with the requirements of the Massachusetts Rules of Criminal Procedure." St. 1979, c. 344, § 39. The matter of other pretrial motions was left to the new criminal rules through the new § 28E.
[5] As we observed earlier, the trial judge in a close case may wish to permit appellate review of whatever action he might take on a motion for a finding of not guilty. Our construction of § 28E permits appellate review, whichever way the judge decides the point, if he acts after the jury return their verdict.
[6] The record does not show why the judge submitted the questions. Massachusetts R. Crim. P. 27 (c), 378 Mass. 897 (1979), authorizes the submission of special questions.
[7] Consideration of this argument might have been appropriate pursuant to a separate motion under the second sentence of Mass. R. Crim. P. 25 (b) (2), or under rule 30.
[8] Further proceedings would include sentencing. The defendant, of course, may seek relief by a motion for a new trial. In any event, the defendant could appeal from his conviction.
[1] General Laws c. 278, § 28E, as appearing in St. 1979, c. 344, § 45, provides in part: "An appeal may be taken by and on behalf of the commonwealth by the attorney general or a district attorney from the superior court to the supreme judicial court in all criminal cases from a decision, order or judgment of the court (1) allowing a motion to dismiss an indictment or complaint, or (2) allowing a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure."
[2] The right of appeal of the Federal government in a criminal case is, as the court acknowledges, based on an explicit Federal statute. 18 U.S.C. § 3731 (1971).
[3] General Laws c. 277, § 47A, as appearing in St. 1979, c. 344, § 39, effective July 1, 1979, provides in part that "any defense or objection based upon defects in the institution of the prosecution or in the complaint or indictment ... shall only be raised prior to trial and only by a motion in conformity with ... the Massachusetts Rules of Criminal Procedure."
[4] Subdivision (c) (8) is patterned after Cal. Penal Code § 1506 (Deering 1971 & Supp. 1981). See Reporters' Notes to Mass. R. Crim. P. 30 (c) (8), Mass. Ann. Laws, Rules of Criminal Procedure at 485-486 (1979). Although in California the State may appeal from judgments allowing motions for a defendant's release due to unlawful restraint, see Cal. Penal Code § 1506, or for a new trial, see Cal. Penal Code § 1238 (Deering 1971 & Supp. 1981), there is no provision for appeal by the State from judgments of acquittal.
It is clearly significant that governmental appellate rights are explicitly referred to in the rules of criminal procedure as to pretrial motions, Mass. R. Crim. P. 15, 378 Mass. 882 (1979), or as to orders entered under rule 30, Mass. R. Crim. P. 30 (c) (8), but no such reference is found in the rules as actions taken under rule 25. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3028397/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-3235
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
William Jonathan Brown, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: February 7, 2002
Filed: February 11, 2002
___________
Before HANSEN, Chief Judge, FAGG and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
___________
PER CURIAM.
William Jonathan Brown appeals the sentence imposed by the district court1
after a jury convicted him of armed bank robbery and aiding and abetting, in violation
of 18 U.S.C. §§ 2 and 2113(a), (d). He argues the court wrongly assessed a 2-level
enhancement for being an organizer or a leader of a criminal activity. See U.S.S.G.
§ 3B1.1(c). We affirm.
1
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
The district court did not commit clear error, given the trial testimony of
Brown’s accomplice that Brown came up with the idea to rob a bank, selected the
bank, recruited his codefendant to participate, instructed the codefendant what to do
during the robbery, and devised alibis. See U.S.S.G. § 3B1.1, comment. (n.4) (listing
factors court should consider); United States v. Peters, 59 F.3d 732, 735 (8th Cir.
1995) (district court did not commit clear error in applying § 3B1.1 enhancement, as
coconspirators testified defendant came up with plan, recruited them to participate,
and continued to provide substantial direction during life of plan).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2222581/ | 292 N.W.2d 63 (1980)
Leona SHEETS, Plaintiff and Appellant,
v.
GRACO, INC., a Minnesota Corporation; Farmers Union Central Exchange, a Minnesota cooperative association; and Farmers Union Oil Company of Powers Lake, North Dakota, a North Dakota cooperative association, Defendants and Appellees.
Civ. No. 9706.
Supreme Court of North Dakota.
April 21, 1980.
*64 Letnes, Marshall & Fiedler, Grand Forks, for plaintiff and appellant; argued by F. John Marshall, Grand Forks.
McGee, Hankla, Backes & Wheeler, Minot, for defendant and appellee, Graco, Inc., a Minnesota corporation; argued by Orlin W. Backes, Minot.
Bjella, Neff, Rathert & Wahl, Williston, for defendant and appellee, Farmers Union Central Exchange, a Minnesota cooperative association; argued by Paul W. Jacobson, Williston.
Pringle & Herigstad, Minot, for defendant and appellee, Farmers Union Oil Company of Powers Lake, North Dakota, a North Dakota cooperative association; argued by Mitchell Mahoney, Minot.
Mart R. Vogel of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, amicus curiae in support of plaintiff and appellant.
ERICKSTAD, Chief Justice.
This is an appeal from a summary judgment granted in favor of the defendants on the ground the plaintiff's claim is barred by the statute of limitations. We affirm.
A wrongful death action was brought by the plaintiff, Leona Sheets, the surviving wife of the late Harold T. Sheets. The incident which resulted in Harold's death occurred on August 2, 1975, while he was spray painting a farm building near Stanley, North Dakota. While applying paint to the barn, it is alleged that the paint sprayer *65 discharged injecting paint into Harold's body. As a result of this mishap, he died on September 14, 1975.
The defendants in this action, Graco, Inc., Farmers Union Central Exchange, and Farmers Union Oil Company of Powers Lake, North Dakota [hereinafter referred to collectively as Graco], are corporations engaged in the manufacture and sale of the paint and paint spraying equipment used by Harold at the time the accident occurred in August of 1975.
The present action was commenced by service of a summons and complaint on July 20, 1979, nearly four years after Harold's death. Leona sought damages for pecuniary loss she suffered as a result of her husband's death, including loss of property, loss of support, and loss of consortium. Her action against each of the corporations named as defendants in this lawsuit is based upon claims of negligence, strict liability, and breach of implied and expressed warranties.
Motions for summary judgment of dismissal of the complaint were filed by each of the three corporations in August of 1979, and the motions were consolidated for hearing. The ground for each of the motions was that the wrongful death action was barred by the two-year statute of limitations as set forth in Section 28-01-18(4) of the North Dakota Century Code. A hearing on the motions for summary judgment was held on October 2, 1979, in Burke County District Court, Northwest Judicial District. The trial court determined that the action was barred by the statute of limitations, and summary judgment was entered on October 5, 1979. Leona appeals to this court from that judgment.
Section 32-21-01 of the North Dakota Century Code is our wrongful death statute and it provides as follows:
"32-21-01. When action for death by wrongful act maintainableWhenever the death of a person shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured, if death had not ensued, to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation or company which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or of the tort-feasor, and although the death shall have been caused under such circumstances as amount in law to felony."
At common law there was no right of recovery for the wrongful or negligent injury of another which caused his death. Harshman v. Northern Pac. Ry. Co., 14 N.D. 69, 103 N.W. 412 (1905). Although the wrongful death of another involves pecuniary loss to the person seeking compensation, the right to bring such an action is purely statutory, and the statutory provisions upon which a wrongful death action can be maintained are contained in Chapter 32-21 of the North Dakota Century Code. Armstrong v. Miller, 200 N.W.2d, 282 (N.D. 1972).
The wrongful death statute "is not a survival statute intended to increase the estate of the deceased, but its purpose is to give a measure of protection to those persons within a fixed degree of relationship to and dependency on the deceased because of actual injury sustained by them by reason of the wrongful killing of the deceased... ." Satterberg v. Minneapolis, St. P. & S. S. M. Ry. Co., 19 N.D. 38, 41, 121 N.W. 70, 71 (1909); see Section 32-21-03, N.D.C.C.
The amount recovered inures to the exclusive benefit of the deceased's heirs, and said amount shall not be liable for the debts of the deceased. Section 32-21-04, N.D. C.C.
There has never been a self-contained statute of limitations within the wrongful death provisions of Chapter 32-21, N.D.C.C. However, Section 28-01-18, N.D.C.C., provides in pertinent part:
"28-01-18. Actions having two-year limitationsThe following actions must be commenced within two years after the cause of action has accrued:
* * * * * *
*66 4. An action for injuries done to the person of another, when death ensues from such injuries, and the cause of action shall be deemed to have accrued at the time of the death of the party injured."
Leona contends that Section 28-01-18(4), N.D.C.C., is not applicable in the case at bar because the pertinent provisions of that subsection only refer to actions "for injuries done to the person of another, when death ensues from such injuries ... ." She argues that the present action is one for pecuniary damages she has suffered as a result of her husband's wrongful death, brought pursuant to the Wrongful Death Act under Section 32-21-01 of the North Dakota Century Code, and that Section 32-21-01 contains no express limitation for commencement of an action brought pursuant thereto. Leona's contention is that the present action is based upon claims against Graco of negligence, strict liability, and breach of warranty, and, therefore, in the absence of any express limitations period under the Wrongful Death Act, the applicable statute of limitations is six years. See Section 28-01-16(2), N.D.C.C.[1] She argues that, because the present action was filed within four years of Harold's death, summary judgment was improperly granted.
Generally, where there are statutory provisions which provide for a special statute of limitations in wrongful death actions, such a limitation controls regardless of the tort, contract, or breach of warranty aspects of the case. Rogers v. Smith Kline & French Laboratories, 5 Ariz.App. 553, 429 P.2d 4 (1967); 22 Am.Jur.2d, Death § 35 (1965); 25A C.J.S. Death § 53(a) (1966). The problem in the instant case is that there is no self-contained statute of limitations within the wrongful death provisions of Chapter 32-21, N.D.C.C.
Literally, Section 28-01-18(4), N.D. C.C., provides a two-year statute of limitations for "an action for injuries done to the person of another, when death ensues from such injuries ... ." The enactment of the Wrongful Death Act was a response to the failure of the common law to provide a remedy for wrongful death. The Wrongful Death Act compensates the survivors for losses they have sustained by reason of the wrongful killing of the deceased. Armstrong v. Miller, 200 N.W.2d 282 (N.D.1972). This is to be distinguished from a survival action, which is a separate and distinct cause of action. The basis for an action under our wrongful death provisions is the existence of an injury to the deceased. A wrongful death action, like a survival action, is dependent upon the injuries sustained by the deceased, and ensues from the injuries which caused his death.
Section 28-01-18(4) further provides that "the cause of action [referred to therein] shall be deemed to have accrued at the time of the death of the party injured." It is necessary to distinguish between wrongful death actions and survival actions to better understand the importance of this pertinent provision.
Conceptually, survival actions are quite different from wrongful death actions. Each provides a separate and distinct remedy for a different kind of loss. Wrongful death actions are intended to compensate the survivors of the deceased for the losses they have sustained as a result of a wrongful killing. Dependent upon the specific statutory language, losses recoverable by survivors in wrongful death actions often include the prospective loss of earnings and contribution; prospective expenses; loss of services; loss of companionship, comfort, and consortium; and mental anguish and grief. See 1 S. Speiser, Recovery for Wrongful Death 2d, Ch. 3 (1975). Survival statutes, on the other hand, are remedial in nature, and are intended to permit recovery by the representatives of *67 the deceased for damages the deceased could have recovered had he lived. Section 28-01-26, N.D.C.C.;[2] see Section 28-01-26.1, N.D.C.C. A survival action merely continues in existence an injured person's claim after death as an asset of his estate, while a wrongful death action is an entirely new cause of action for the benefit of those persons who bear a close relationship to the deceased and who have suffered injury as a result of his wrongful death. Satterberg v. Minneapolis, St. P. & S. S. M. Ry. Co., 19 N.D. 38, 121 N.W. 70 (1909); 2 S. Speiser, Recovery for Wrongful Death 2d § 14:1 (1975); see Section 32-21-03, N.D.C.C.
"The elements of damages recoverable under survival statutes are generally as follows: conscious pain and suffering; medical expenses; funeral and burial expenses; and loss of earnings, usually from the time of injury to the time of death. In some jurisdictions, punitive damages, mental anguish, or any outrage to the feelings of the injured person, may also be recovered." (Emphasis added.) 2 S. Speiser, Recovery for Wrongful Death 2d § 14:6 (1975).
Standing alone, we believe that the words "[a]n action for injuries done to the person of another, when death ensues from such injuries," as found in Section 28-01-18(4), could reasonably be interpreted to apply solely to survival actions. However, when one considers that the cause of action "shall be deemed to have accrued at the time of the death of the party injured," Section 28-01-18(4), then it becomes clear that the two-year limitation provision is to apply to wrongful death actions. The reason is that survival actions accrue, or come into existence as a legally enforceable right, not at the time of the death of the injured party, but at the time the deceased was first injured. As previously established, a survival action is merely a continuation of a claim the deceased would have been entitled to bring had he not died. The representatives of the deceased merely step into his shoes and continue the cause of action on behalf of the deceased's estate. See Marsden v. O'Callaghan, 77 N.W.2d 531 (N.D.1956). A survival action actually accrues at the time of injury, and, if the person injured later dies, the action is continued by his representatives in the form of a survival action. A wrongful death action, however, is an entirely new and independent cause of action that can only accrue at the time of the wrongful death, based upon the death itself. Such actions are intended to compensate the survivors of the deceased for the losses they have sustained as a result of the wrongful death.
We recognize that words and phrases in a statute are to be construed according to the context and rules of grammar and the approved usage of language. Section 1-02-03, N.D.C.C.; Falk v. Frandsen, 137 N.W.2d 228 (N.D.1965). Consideration must be given to the ordinary sense in which the words are used, the context in which they are placed, and the background for the enactment as far as that can be ascertained from the whole act. Harding v. City of Dickinson, 76 N.D. 71, 33 N.W.2d 626 (1948); see Section 1-02-02, N.D.C.C. Meaning should be given to every word, clause, and sentence in the statute. Brenna v. Hjelle, 161 N.W.2d 356 (N.D.1968). The object is to ascertain and give effect to the intent of the Legislature. State v. Unterseher, 289 N.W.2d 201 (N.D.1980).
We believe that the words, clauses, and sentences of Section 28-01-18(4), when viewed as a whole, indicate that the two-year limitation period contained therein applies to wrongful death actions. Wrongful death actions are actions for injuries done to the person of another from which death has ensued, and wrongful death actions accrue at the time of the death of the party injured. Therefore, such actions fall within the two-year limitation provision of Section 28-01-18(4). We further believe that this *68 construction gives effect to the legislative intent as disclosed by the language of the enactment, and unveiled by delving into the history of the controlling statutes.
A cause of action for wrongful death was first created by statute in 1895, as there was no such right of recovery under the common law. R. C. 1895, § 5974.[3] The language of the wrongful death statute has remained virtually unchanged since 1895, and, since its enactment, there has never been a self-contained statute of limitations within its provisions.
Also enacted by the Legislature in 1895 was Section 5203(4),[4] which is our present two-year statute of limitations found in Section 28-01-18(4), the language of which has also remained virtually unchanged since 1895.
We note that under our statute pertaining to limitations for survival actions, "[i]f a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof and the cause of action survives, an action may be commenced by his representatives after the expiration of that time and within one year from his death." (Emphasis added.) Section 28-01-26, N.D.C.C. Section 28-01-26 was enacted in 1877,[5] and the one-year period referred to therein was present at that time. Apparently the Legislature intended that the predecessor of Section 28-01-18(4) [R. C. 1895 § 5203(4)] would cover wrongful death actions, while the predecessor of Section 28-01-26 [C.Civ.P. 1877, § 65] would cover survival actions, for to reach a contrary conclusion would render the one-year period under Section 28-01-26 superfluous and applicable to nothing. In further support of this construction, and indicative of the legislative intent, is the fact that both the Wrongful Death Act and the two-year statute of limitations period found in Section 28-01-18(4) were enacted the same year, 1895.
In Van Ornum v. Otter Tail Power Company, 210 N.W.2d 207 (N.D.1973), we held that a survival action brought by the personal representative of the deceased to recover for the deceased's pain and suffering, as well as punitive damages, was subject to the two-year statute of limitations period set forth in Section 28-01-18(4), N.D.C.C. Id. at 209, 210. Whether or not we would adhere to that opinion were the issue raised in the future, or whether or not, in light of the study and research necessitated by this opinion, we would hold that such a survival action was subject to the one-year limitation provided for in Section 28-01-26, N.D. C.C., we need not decide today. Had Section 28-01-26, N.D.C.C., been applied in Van Ornum, that would not have changed the result. The issue of whether or not Section 28-01-18(4) also applied to wrongful death actions as we have defined such actions today was not before this court in Van Ornum.
*69 This court has never been confronted with the issue presented in the case at bar, i. e., which statute of limitations is applicable to wrongful death actions in North Dakota. We have, however, intimated, or in dictum said, that the appropriate period is the two-year limitation under Section 28-01-18(4), N.D.C.C. See Hubbard v. Libi, 229 N.W.2d 82 (N.D.1975); Sprecher v. Magstadt, 213 N.W.2d 881 (N.D.1973); Van Ornum v. Otter Tail Power Company, 210 N.W.2d 207 (N.D.1973).
The solution for the future might be legislative action incorporating a specific limitation within the wrongful death statute, Chapter 32-21, N.D.C.C.[6]
In view of the foregoing, we conclude that Section 28-01-18(4), N.D.C.C., is directed to wrongful death actions. Summary judgment was properly granted, and we accordingly affirm.
VANDE WALLE, PEDERSON and PAULSON, JJ., concur.
SAND, Justice (special concurrence and dissent).
I concur in most of the principles of law stated in Chief Justice Erickstad's opinion and the case law referred to, but I respectfully dissent from the rationale employed in reaching the conclusion and from the conclusion itself.
An action for wrongful death did not exist under common law and is purely a creature of statute. Harshman v. Northern Pacific Railway Co., 14 N.D. 69, 103 N.W. 412 (1905). In this respect it is an action which meets the provisions of subsection (2) of § 28-01-16, NDCC, as an action resting upon liability created by statute.
Section 28-01-16(2), NDCC, made its first appearance in the Civil Code of 1877, § 54. It provided:
"An action upon a liability created by statute, other than a penalty or forfeiture."
The 1895 Code, § 5201, shows that an amendment was made to the section by changing the period to a comma, and adding "when not otherwise expressly provided;". The 1895 Code does not give any source for changing the period to a comma and adding the language "when not otherwise expressly provided." The North Dakota Century Code under "Derivation" states that it was obtained from Wait's (N.Y.) Code, 91;[1] and Harston's (Cal.) Practice, 337.[2]
Section 28-01-18 first appeared in the Civil Code Procedure of 1877 in § 56, but it consisted only of subsections (1) and (2). Subsection (3) relating to malpractice came into being through Chapter 87 of the 1893 Session Laws. Subsection (4) made its first appearance in the Revised Code of 1895, § 5203, but the source gave no indication as to when it came into being or by what manner it came into being. It provided as follows:
*70 "An action for injuries done to the person of another, when death ensues from such injuries; and the cause of action shall be deemed to have accrued at the time of death of the party injured."
Sometime later the semicolon was removed and a comma was put in its place.
The derivation in the Code states it came from Wait's (N.Y.) Code, 93;[3] and Harston's (Cal.) Practice, 340.[4]
A review of the statutes of the states from which our law was adopted is not very helpful because the provisions under consideration were not part of the law of the states from which our statutes were modeled. Neither is a review of the New York statutes very helpful because New York ultimately provided for a wrongful death statute which contained its own statute of limitations, and, for that matter, California's wrongful death statute also contains its own time limitations.
However, the courts in two instances left the impression that the limitation pertaining to an action based on a liability created by statute would apply were it not for the fact that the California wrongful death statute, subdivision (3) of § 340 of the Code of Civil Procedure, was a special statute and contained its own period of limitation which controlled, rather than a general statute, subdivision (1) of § 338, Code of Civil Procedure, setting forth the time limitation of actions based on a statutory liability. In Aetna Casualty & Surety Co. v. Pacific Gas & Electric Co., 41 Cal.2d 785, 787, 264 P.2d 5, 6 (1953), the court said:
"No matter who may be the party plaintiff, the cause of action [wrongful death action] is one within the express terms of subdivision 3 of section 340 of the Code of Civil Procedure. That section is a special statute controlling the time within which any action covering such injury may be commenced, and it prevails over the general statute applicable to actions based on a `liability created by statute'. Code Civ. Proc. sec. 338, subd. 1."
The reasoning of the California court was followed in Klingebiel v. Lockheed Aircraft Corporation, 372 F.Supp. 1086 (1971) U.S. District Court North District of California, which was affirmed in 494 F.2d 345, 347 (9th Cir. 1947). I did not make any elaborate effort to find out if any other state has addressed itself to the same question.
The North Dakota wrongful death statute, § 32-21-01, does not contain a limitation of time in which the action must be commenced, therefore we must then go to the statute of limitations found in Ch. 28-01, NDCC, to determine what period of limitations applies to the wrongful death action. As pointed out earlier herein, the wrongful death action is one created by statute and as such it meets the provisions of § 28-01-16(2), which provides:
"The following actions must be commenced within six years after the cause of action has accrued:
2. An action upon a liability created by statute other than a penalty or forfeiture, when not otherwise expressly provided."
A liability created by statute is a liability which would not exist except for the statute. See Vol. 25 Words and Phrases, page 83 et seq., and pocket part. A wrongful death action is one which falls within this definition.
*71 The other provision which may have some application is found in § 28-01-18(4), NDCC:
"Actions having two-year limitationsThe following actions must be commenced within two years after the cause of action has accrued:
4. An action for injuries done to the person of another, when death ensues from such injuries, and the cause of action shall be deemed to have accrued at the time of the death of the party injured." [Emphasis added.]
This raises the interesting question: Which of the statutory limitations applies to an action for wrongful death? The principle of law relating to the interpretation and construction of statutes that every word, clause, and sentence must be given consideration also applies here. With that principle in mind, § 28-01-18(4) is examined.
First, it must be noted that it applies to actions for injuries done to the person of another. The term "injuries" here does not embrace the broad concept of such term but is limited to the injuries which caused the death. This is evidenced from the language "when death ensues from such injuries". The term, "such injuries," refers to injuries done to the person of another. In essence, subsection (4) of § 28-01-18 refers to actions for injuries which result in the death of the person injured. After comparing this provision with Ch. 32-21, NDCC, Death By Wrongful Act, it must be noted that the damages authorized under Ch. 32-21, more specifically § 32-21-01 and § 32-21-02, the damages relate to the numerous items that the beneficiary might reasonably have expected, including value of services, earning ability, and other such related items. See, Stejskal v. Darrow, 55 N.D. 606, 215 N.W. 83 (1927); Umphrey v. Deery, 78 N.D. 211, 48 N.W.2d 897 (1951). From this it should be immediately recognized that the wrongful death statute is not limited to merely the injuries done to the person who died, but to damages that the beneficiaries, generally outlined in § 32-21-03, have sustained. A valid argument can be made that § 28-01-18(4) relates to the injuries sustained by the person who died from such injuries and that the cause of action survives the injured person and that the cause of action is deemed to have accrued at the time of death of the injured person rather than at the time of the infliction of the injuries. Under this concept, the action under § 28-01-18(4) is a separate and distinct action from the action for wrongful death under Ch. 32-21. As stated in Chief Justice Erickstad's opinion, the wrongful death act compensates the survivors for losses they have sustained by reason of the wrongful killing of the deceased. Armstrong v. Miller, 200 N.W.2d 282 (N.D.1972). This clearly supports the conclusion that the provisions of § 28-01-18(4) merely provide that the cause of action for injuries done to a person who died from such injuries is deemed to have accrued at the time of the death. If death had not ensued, the time limitations would be governed by the ordinary statute of limitations on injuries. The injuries covered would be generally such as pain and suffering, medical expenses, and loss of earnings to the individual injured; whereas the wrongful death statute addresses itself to losses sustained by the beneficiaries, which does not include pain and suffering, medical expenses, etc.
I cannot agree that this court intimated or in dictum said that the appropriate period is a two-year limitation under § 28-01-18(4) in Hubbard v. Libi, 229 N.W.2d 82 (N.D.1975), or Sprecher v. Magstadt, 213 N.W.2d 881 (N.D.1973), or Van Ornum v. Otter Tail Power Co., 210 N.W.2d 207 (N.D. 1973).
Considering again the provisions of § 28-01-16(2) it should be noted that with reference to a liability created by statute, we have no other provision expressly providing otherwise, and as has already been pointed out, § 28-01-18(4) pertains to injuries done to the person who dies from such injuries and does not address itself to an action for a wrongful death under Ch. 32-21, NDCC.
No matter what rationale is employed or relied upon, at the very minimum a doubt exists.
*72 In Sprecher v. Magstadt, 213 N.W.2d 881 (N.D.1973), the court quoted from Adams v. Little Missouri Minerals Association, 143 N.W.2d 659 (N.D.1966), wherein it said:
"Where substantial doubt exists as to which of two limitation statutes is applicable, the longer period will be applied."
This comment was not mere dictum because it also appeared in the syllabus, which was still required pursuant to the Constitution at that time. Under this concept and rationale, § 28-01-16(2), NDCC, applies to the wrongful death statute.
The argument that if § 28-01-18(4) did not pertain to wrongful death actions there would have been no need for its enactment because the same subject matter would be covered in § 28-01-26 is neither convincing nor persuasive. We have repeatedly seen where the Legislature has provided for something in a general way and then provided for a similar or related matter in a more specific manner, which of course gave rise to the rule that the more specific prevails over the general, in the event there is a conflict. If the argument were valid then there would have been no need for the enactment of § 28-01-18(4) because the subject matter was already covered in § 28-01-26. However, as it is, § 28-01-26 pertains to all types of actions, not only those relating to an injury which caused death, whereas § 28-01-18(4) is limited to injuries from which death ensues.
Furthermore, it would seem reasonable and logical that if the Legislature were truly concerned to provide for a special statute of limitations that applied to wrongful death actions at the time it was enacted the Legislature would have provided for such limitation within the wrongful death act rather than enact what is now § 28-01-18(4), NDCC, which makes no mention of the wrongful death act and can be applied to the wrongful death act only by straining, especially where the wrongful death action was already covered in what is now § 28-01-16(2), NDCC.
Even though I am convinced that § 28-01-16(2), NDCC, rather than § 28-01-18(4), NDCC, applies to the wrongful death statute for the reasons set out earlier herein, I also believe the Legislature should remove any and all doubts by making the appropriate amendment for the benefit of the practicing bar.
NOTES
[1] "28-01-16. Actions having six-year limitationsThe following actions must be commenced within six years after the cause of action has accrued:
* * * * * *
2. An action upon a liability created by statute, other than a penalty or forfeiture, when not otherwise expressly provided." § 28-01-16(2), N.D.C.C.
[2] "28-01-26. Limitation in case of deathIf a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof and the cause of action survives, an action may be commenced by his representatives after the expiration of that time and within one year from his death. . . ." § 28-01-26, N.D.C.C.
[3] "§ 5974. When action for maintainable. Whenever the death of a person shall be caused by a wrongful act, neglect or default 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, then and in every such case the person who, or the corporation or company which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." R. C. 1895, § 5974.
[4] Section 5203(4) of the Code of Civil Procedure, 1895, provides for a two-year statute of limitations for the commencement of:
"4. An action for injuries done to the person of another, when death ensues from such injuries; and the cause of action shall be deemed to have accrued at the time of the death of the party injured." R. C. 1895, § 5203(4).
[5] "§ 65. Death.] If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within one year from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his executors or administrators after the expiration of that time, and within one year after the issuing of letters testamentary or of administration." C.Civ.P. 1877, § 65.
[6] Our research has revealed that thirty-four states have built-in or self-contained statutes of limitation within the provisions of their respective wrongful death acts. 2 S. Speiser, Recovery for Wrongful Death 2d, Appendix A (1975).
[1] "§ 91. (Am'd 1849)
"Within six years:
1. An action upon a contract, obligation, or liability, express or implied; excepting those mentioned in section ninety;
2. An action upon a liability created by statute, other than a penalty or forfeiture;
3. An action for trespass upon real property;
4. An action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property;
5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated;
6. An action for relief on the ground of fraud, in cases which heretofore were solely cognizable by the court of chancery; the cause of action in such cases not to be deemed to have accrued, until the discovery by the aggrieved party of the facts constituting the fraud."
[2] "337. Within four years:
"An action for any contract, obligation or liability, found upon any instrument in writing executed in this State."
[3] "§ 93.
"Within two years:
1. An action for libel, slander, assault, battery, or false imprisonment;
2. An action upon a statute, for a forfeiture or penalty to the people of this State."
[4] "340. Within one year:
1. An action upon a statute for a penalty or forfeiture, when the action is given to an individual, or to an individual and the State, except when the statute imposing it prescribes a different limitation;
2. An action upon a statute or upon an undertaking in a criminal action for a forfeiture or penalty to the people of this State;
3. An action for libel, slander, assault, battery, false imprisonment or seduction;
4. An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process;
5. An action against a municipal corporation for damages or injuries to property caused by a mob or riot." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263990/ | 33 Cal.App.4th 518 (1995)
39 Cal. Rptr.2d 367
In re the Marriage of LOREN J. and ROBERT L. GIGLIOTTI.
LOREN J. PROSTANO, Appellant,
v.
ROBERT L. GIGLIOTTI, Respondent.
Docket No. B082860.
Court of Appeals of California, Second District, Division Seven.
March 27, 1995.
*520 COUNSEL
Trope & Trope and Thomas Paine Dunlap for Appellant.
Robert L. Gigliotti, in pro. per., for Respondent.
OPINION
LILLIE, P.J.
Loren J. Prostano (Prostano) appeals from a postjudgment of dissolution of marriage order of modification of child support for the son of the parties born in September 1990. The principal issue on appeal is whether the trial court erred in treating the travel expenses of the father (Gigliotti) to Massachusetts to visit with the parties' son as a deduction from the amount of child support mandated by the statutory guideline formula.
*521 FACTS
The parties were married in 1990 and separated about 17 months later in mid-1991; they had a son, Michael, born September 22, 1990. Prostano filed a petition for dissolution of marriage in July 1991; trial was held in June 1992; Prostano requested permission of the court to move with Michael to Massachusetts, and permission was granted; Prostano and Michael moved to Massachusetts in September 1992.
With respect to child custody and support, the judgment provided as follows: the parties were to have joint legal and physical custody of Michael; Prostano was to have primary physical custody and Gigliotti was to have secondary physical custody; Prostano had the right to move out of the state of California with Michael; after Prostano relocated, Gigliotti was to have the right to custody of Michael for up to three days per month in the area where Prostano resides, increasing to four days after Michael reaches age three, five days after Michael reaches age four, and six days after he reaches age five.
In addition, the court ordered that Prostano bring or cause Michael to be brought to Los Angeles to visit with Gigliotti once every three months for a five-day period; when Michael reached age five, Prostano can send him by air, unaccompanied by an adult, for the quarterly visits. The judgment also provided for custodial periods during the summers and vacations, which provisions are not at issue on this appeal.
As child support, beginning June 24, 1992, until Prostano relocated, Gigliotti was to pay Prostano $400 per month; after Prostano relocated, Gigliotti was to pay to Prostano "the sum of $400 per month, payable $133.33 directly to [Prostano] on the first day of each month and $266.67 into a travel trust fund for [Gigliotti's] use for visiting with the child. [Gigliotti] shall set up an account for said travel trust fund, shall deposit the funds therein on a timely basis and shall provide an accounting on or before March 15th and September 15th of each year of all deposits and disbursements and shall pay to [Prostano] by September 15th any funds not used by him during the prior 12 month period for travel expenses.... [Gigliotti] shall be entitled to spend from the travel trust the sum of $3,200 per year for visiting with the minor child in the manner provided in this Judgment.... [Prostano] shall not have the right to use said trust funds for her own travel expenses. The court reserves jurisdiction to resolve any disputes which arise concerning the use of the travel trust funds."
The judgment further stated that the child support order therein was based on Gigliotti having a gross monthly income as of June 24, 1992, of $3,500 *522 and a net monthly income, after taxes and FICA, of $2,410; and Prostano having a gross monthly income of $3,000 and a net monthly income of $2,365 after taxes and FICA. Prostano's income was "based on her expected earnings when she commences full-time employment [in Massachusetts]."
In April 1993, Prostano filed in a court in Massachusetts a complaint for modification of the child support provisions of the judgment of dissolution; therein she alleged that the job in Massachusetts for $35,000 per year, anticipated in the judgment, "was not forthcoming"; she currently was employed in another job paying $30,000 per year which did not have the scheduling flexibility permitting her to travel to California for Gigliotti's mandatory quarterly visits with Michael for five-day periods; in addition, because her sister-in-law, who had been providing child care for Michael free of charge, would be less available in the summer of 1993, she will incur additional expenses for child care so that she could continue to work at her present job. Prostano sought modification to increase child support payments and to eliminate her mandatory quarterly travel to California with Michael, or in the alternative to make appropriate financial arrangements for two annual visits to California instead of the four quarterly visits.
In June 1993, Gigliotti filed in the superior court an order to show cause for modification of visitation, seeking to make more specific the provisions for the quarterly visits and his telephone contacts with Michael, allegedly because of disputes between the parties because of Prostano's "lack of communication and cooperation with regard to Michael." In June 1993, Gigliotti also filed in the Massachusetts case a motion to dismiss Prostano's complaint.
In July 1993, the Massachusetts court stayed Prostano's action in Massachusetts until the California superior court determined whether to accept or decline jurisdiction as to the child support issues raised by Prostano; the Massachusetts court also ordered that Prostano file a motion to dismiss Gigliotti's claim for modification in the California case, which she did.
After hearing on Prostano's motion to quash and dismiss Gigliotti's order to show cause for modification, the superior court ordered on October 6, 1993, that the "Case will be heard in California, and the Court has not declined to hear the support issue."
The matters came on for hearing on January 4, 1994. Prostano had filed an income and expense declaration indicating that with a gross monthly income of $2,500, her net monthly disposable income was $1,809.49; each month she paid $800 for rent and $980 for child care at a Montessori School, which *523 two expenses alone exceeded her disposable income. She argued that her financial circumstances had materially changed since the entry of the judgment of dissolution, she was earning less money than anticipated in the judgment, her job hours were less flexible, and she was required to pay for two round-trip air flights with respect to the quarterly California visits because she needed to return to work in Massachusetts during the week that Michael visited with his father in California. She also had housing and child care expenses which she did not have in 1992. Prostano also argued that the court's travel orders worked a hardship because she was required to spend $4,800 per year to bring Michael to California for his visitation with his father; she also argued that "By making the travel trust a reduction in the child support I receive, rather than dealing with it as an `add-on' in accordance with the California Child Support statute, I pay an additional $3,200 per year to be used at respondent's whim."
According to Prostano, Gigliotti had not spent his own money to come to Massachusetts to visit with Michael, and had only visited with Michael in Massachusetts four times in the past year, despite the fact that he had the right to visit him in Massachusetts once a month; according to Prostano, Gigliotti spent 55 percent of the travel trust on "luxury lodgings" and items other than plane fare; the travel trust would have permitted Gigliotti to make eight round trips to Massachusetts at an average of $400 per round trip.
According to Gigliotti's income and expense declaration, his gross monthly income was $3,833, with a net monthly disposable income of $2,725. He claimed total monthly expenses of $2,951, also in excess of his disposable income; however, he claimed $266 for travel expenses for visitation, which apparently reflected the amount he was ordered to deposit into the travel trust, and which he used to reimburse himself for his travel to Massachusetts for visitation with Michael.[1]
In connection with his order to show cause, Gigliotti also challenged Prostano's expense of $980 for child care as excessive and submitted fees for other area preschools and day-care centers which were less that $980. According to Prostano's responsive declaration, "Gigliotti has visited none of [the other schools]," and had no personal knowledge whatsoever of those facilities. She claimed that the other, cheaper facilities were "less appropriate and satisfactory school/child care," and that some were in "high-crime areas which I would not drive through, much less leave my child in."
*524 At the hearing on January 4, 1994, the court made the following order: "The quarterly visits are going to be extended to a week in duration from Saturday to Saturday. I'm not extending it to Sundays, except at the mother's sole election. If she wants to come out here on Saturday and stick around here for a while, that's her business. [¶] Mother is going to continue to pay for her costs of transportation. [¶] The child support is modified pursuant to the child support guideline.... Based on the following: 5 percent visitation, married filing jointly status this is all for [Gigliotti] two exemptions, $3,833 gross income.... [¶] $2,500 for the petitioner head-of-household status, two exemptions, $147 for health insurance that she incurs for the child. [¶] The court has reviewed carefully the declaration of the respondent concerning his investigations into child care opportunities and is reasonably persuaded for a couple of reasons, that the $980 that petitioner actually spends to send this child to this Montessori with extended day care is higher than it reasonably needs to be. [¶] I think that the law, as opposed to wisdom, says that you get to have child care expenses. Now, wisdom may say that parents should do whatever they can do to see that their kids [get] the best education and training possible. And it may very well be that this [Montessori] school is exactly where this child ought to be.... [¶] And having reviewed the declaration and the multitude of alternative resources available, the court has decided that the reasonable level of child care expenses is $750 and will base its support on $750. The respondent's share will be $375. [¶] The child support is $717. Total of $1,092. The respondent is ordered to pay the sum of $1,092 per month as child support."
The court made the foregoing provisions retroactive to December 1, 1993, and also denied Gigliotti's requests for longer periods of visitation and that Prostano bear the cost of the quarterly visits after Michael reaches age five. The trial court also expressly stated that the travel trust provisions of the judgment were to remain in effect.
As the parties interpret the trial court's order, which interpretation appears to us to be correct, Gigliotti is entitled to deposit into his travel trust the amount of $266.67 per month, or $3,200 per year, which is deducted from the amount of child support otherwise payable to Prostano. In other words, the net amount of child support which Gigliotti is to pay to Prostano pursuant to the January 4, 1994, order is $825.33 per month ($1,092-$266.67). Prostano filed timely notice of appeal from the order. Her principal contention on appeal is that "The trial court erred in treating travel *525 expense as a deduction from child support rather than as a mandatory add-on as required by statute."[2]
I
MANDATORY GUIDELINE FOR CHILD SUPPORT
(1) We apply the law in effect at the time the trial court made its ruling. (County of San Diego v. Guy C. (1994) 30 Cal. App.4th 1325, 1331 [36 Cal. Rptr.2d 222].) Thus, this appeal is governed by the new Family Code provisions, which, inter alia, adopt a statewide uniform guideline for determining child support orders (see Fam. Code, § 4055), operative January 1, 1994.
"The establishment of the statewide uniform guideline constitutes a change of circumstances." (Fam. Code, § 4069.) "There is a rebuttable presumption affecting the burden of proof that the amount of child support established by the guideline formula is the correct amount of child support to be ordered. (Fam. Code, § 4057, subds. (a), (b); former Civ. Code, § 4721, subd. (d).) This presumption `may be rebutted by admissible evidence *526 showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Section 4053, because one or more of the following factors is found to be applicable by a preponderance of the evidence, and the court states in writing or on the record the information required in subdivision (a) of Section 4056....'" (Estevez v. Superior Court (1994) 22 Cal. App.4th 423, 430 [27 Cal. Rptr.2d 470].)
In the instant case, the January 4, 1994, order must be reversed because the court in fact reduced the statewide uniform guideline amount of $717 by $266.67 without complying with the provisions of subdivision (a) of Family Code section 4056, which require that when the court orders an amount for child support that differs from the guideline amount, the court "shall state, in writing or on the record, the following information ...: [¶] (1) The amount of support that would have been ordered under the guideline formula. [¶] (2) The reasons the amount of support ordered differs from the guideline formula amount. [¶] (3) The reasons the amount of support ordered is consistent with the best interests of the children."
While the court acknowledged that the guideline amount was $717, the court did not justify the deduction of the amount of $266.67 from the guideline amount with appropriate findings pursuant to Family Code section 4056.
Moreover we reject Gigliotti's claim that "special circumstances exist in the instant case to warrant the establishment and maintenance of the travel trust as a deduction from child support." No such special circumstances were found by the trial court, either expressly or by implication from this record.
Pursuant to Family Code section 4052, "The court shall adhere to the statewide uniform guideline and may depart from the guideline only in the special circumstances set forth in this article." Pursuant to Family Code section 4057, subdivision (b), the presumption that the guideline formula amount is the correct amount of child support to be ordered may be rebutted by "admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case ... because one or more of the following factors is found to be applicable by a preponderance of the evidence, and the court states in writing or on the record the information required in subdivision (a) of Section 4056: [¶] ... [¶] (5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following: [¶] (A) Cases in which the parents have different time-sharing arrangements for different children. [¶] (B) Cases in which both *527 parents have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent. [¶] (C) Cases in which the children have special medical or other needs that could require child support that would be greater than the formula amount."
None of the foregoing factors were found by the trial court in the instant case, and the trial court made no finding that any other factor rendered the statutory guideline unjust or inappropriate. Gigliotti's brief suggests that because it was appellant who moved away with Michael, it is just and appropriate to reduce Michael's level of child support because of respondent's increased costs in connection with visitation, regardless of the parties' incomes. By this logic, the child's level of support with the primary custodial parent is being reduced for no reason other than the fact that, with the court's permission and implied finding that such move was in the child's best interest, the child's primary residence was moved a substantial distance from Gigliotti's residence. Gigliotti cites no provision in the Family Code which permits a reduction in child support for that reason alone, and we perceive no equity or logic in such a result in this case.
We also cannot uphold the trial court's order on the theory, asserted by respondent, that there were no changed circumstances justifying modification of the judgment. The claim is legally and factually incorrect. Family Code section 4069 states that the establishment of the statewide uniform guideline constitutes a change in circumstances. As a factual matter, numerous changed circumstances existed in this case, including an increase in Gigliotti's income, a decrease in Prostano's anticipated income, and increased housing and child care expenses incurred by Prostano. The trial court obviously found changed circumstances because it awarded an add-on for child care. For all of the foregoing reasons, the trial court's reduction of the guideline amount of child support by $266.67 constituted error.
II
TRAVEL EXPENSES FOR VISITATION
(2) We also agree with Prostano's claim that the January 4, 1994, order is erroneous with respect to its treatment of travel expenses for visitation. As noted by Prostano, travel expenses for visitation are treated by Family Code section 4062, subdivision (b), as a discretionary "add-on" to child support, and there is no provision in the code for a deduction or "take-off" from the guideline amount for the expenses in section 4062.
Family Code section 4062 provides in pertinent part: "(a) The court shall order the following as additional child support: [¶] (1) Child care costs *528 related to employment or to reasonably necessary education or training for employment skills. [¶] (2) The reasonable uninsured health care costs for the children.... [¶] (b) The court may order the following as additional child support: [¶] (1) Costs related to the educational or other special needs of the children. [¶] (2) Travel expenses for visitation." (Italics added.)
"`It is a well established rule of statutory construction that the word "shall" connotes mandatory action and "may" connotes discretionary action.' [Citation.] Thus, section 4062 mandates ... additional child support for employment-related child care costs and reasonable uninsured health care costs, while it makes discretionary ... additional child support for educational or special needs of a child or for travel expenses for visitation. Among the family law bench and bar, these are usually referred to as mandatory or discretionary add-ons." (In re Marriage of Fini (1994) 26 Cal. App.4th 1033, 1039 [31 Cal. Rptr.2d 749].)
In this case, it is clear that until Michael reaches age five in September of 1995, appellant is obligated to accompany him on the plane to California for his quarterly visits with Gigliotti, each visit lasting about a week. Because of Prostano's job responsibilities in Massachusetts during the period of Michael's visit, she must make two round trips in connection with each visit, resulting in eight round trips per year. While Gigliotti was entitled to visit Michael in Massachusetts once a month, in the period since entry of the judgment, he had made only four such trips, and had paid for such trips with the amount in the travel trust established by the judgment. Under these circumstances, the amounts incurred by Prostano so that Gigliotti can enjoy visitation with Michael in California should be considered by the trial court as discretionary add-ons. It is clear that the trial court in the instant case failed to acknowledge its discretion in this regard, so on remand, the trial court will have an opportunity properly to apply Family Code section 4062 to the facts in this record.
As stated by one court under different circumstances than those presented here: "The statutory language concerning additional child support in the discretion of the court for travel expenses for visitation is confusing, because such expenses are usually incurred by the noncustodial parent who is paying child support. Under these circumstances, it is a misnomer to call it additional child support or an add-on, since incurring the financial burden of this expense usually will result in some reduction of the child support otherwise ordered. In this sense, although semantically peculiar, it might more properly be called a negative add-on." (In re Marriage of Fini, supra, 26 Cal. App.4th at p. 1039, fn. 5.)
To the extent that the court in Fini interpreted Family Code section 4062 to permit a reduction of the guideline amount of child support, or what it *529 denominated a "negative add-on," because of travel expenses for visitation incurred by the parent paying child support, we find no such authority therein or elsewhere in the code. In fact the language of subdivisions (b)(1) and (b)(2) of section 4061 appears to authorize only additions to the guideline formula amount because of expenses set out in section 4062.
In any event, this case is not the usual one described in Fini, because appellant, the custodial parent who was receiving child support, was in fact the parent who incurred the greater amount of travel expenses for visitation. According to our record, Gigliotti incurred about $3,200 per year in travel expenses for visitation, while Prostano incurred about $4,800 in yearly travel expenses because the court placed upon her the obligation to bring Michael to California for Gigliotti's quarterly visits with him. Thus, this case does not present the situation envisioned in Fini where the noncustodial parent paying child support is also the parent bearing all of the financial expenses of visitation. Thus, even under Fini, there is no basis here for a reduction in the guideline formula amount of child support for Gigliotti's travel expenses for visitation.
We conclude that the trial court lacked authority to reduce the guideline amount of child support due to Gigliotti's travel expenses, and failed to exercise its discretion under Family Code section 4062, subdivision (b)(2), with respect to an add-on for Prostano's and Michael's travel expenses, incurred so that Gigliotti could enjoy visitation with Michael.
Prostano requests that we modify the order to add on to the basic child support amount of $717, the amounts of $375 for mandatory child care expenses and $333.50, representing one-half the total visitation travel expenses incurred by Prostano. As the issue of an add-on for travel expenses is properly subject to the exercise of the trial court's discretion in the first instance, we believe the appropriate disposition is to reverse that part of the order dealing with travel expenses with directions that the trial court address the issue of an add-on for travel expenses consistent with the views expressed herein.
In light of our disposition, we necessarily find to be without merit Gigliotti's request for sanctions on appeal.
DISPOSITION
That part of the order of January 4, 1994, establishing $717 as the amount of child support under the statewide guideline formula and $375 for child care expenses is affirmed; in all other respects the child support provisions *530 of the order of January 4, 1994, are reversed and the cause is remanded to the trial court for redetermination of the issue of add-ons to child support payable to Prostano consistent with the views expressed herein. Prostano is entitled to her costs on appeal.
Johnson, J., and Woods (Fred), J., concurred.
NOTES
[1] By the time of the January 1994 hearing, Gigliotti had remarried and his spouse's gross monthly income was listed on his income and expense declaration as $1,800. At the time of hearing, the court stated that under the new Family Code provisions, "I don't get to consider new spouse income," and ordered that respondent "Cross the $1800 off of those because it's no longer accurate."
[2] Not challenged by any party to this appeal is the trial court's determination that $717 was Gigliotti's basic child support obligation under the statewide uniform guideline formula. There is also no challenge to the $375 add-on for child care expenses, in which the trial court first determined what it believed a reasonable expense should be, and divided that amount 50-50 between the parties. Family Code section 4062, subdivision (a), provides that "The court shall order the following as additional child support: [¶] (1) Child care costs related to employment or to reasonably necessary education or training for employment skills." The statute does not require that the child care costs be "reasonable" as opposed to actual. The word "reasonably" modifies the phrase "necessary education or training for employment skills," and appears to refer to the education or training of the parent, not the child. Although we question the trial court's interpretation of subdivision (a)(1) of Family Code section 4062 as authorizing the court to fashion a "reasonable" expense which does not correlate to the actual expense borne by the parent, we have no occasion to resolve this issue here. We do point out, however, that Family Code section 4061 provides that if there is to be an apportionment of expenses pursuant to section 4062, "... the expenses shall be divided one-half to each parent unless either parent requests a different apportionment pursuant to subdivision (b) and presents documentation which demonstrates that a different apportionment would be more appropriate." (Fam. Code, § 4061, subd. (a).) Under subdivision (b) of section 4061, the court has discretion to apportion such expenses other than one-half to each parent, but if it does so, the court must follow the provisions of subdivision (b); subdivision (b)(1) requires that the trial court is to first compute the basic child support obligation "using the formula set forth in subdivision (a) of Section 4055, as adjusted for any appropriate rebuttal factors in subdivision (b) of Section 4057." Then, under subdivision (b)(2), any additional child support "required for expenses pursuant to Section 4062 shall thereafter be ordered to be paid by the parents in proportion to their net disposable incomes as adjusted pursuant to subdivisions (c) and (d)."
There is no evidence the trial court proceeded in the foregoing manner in awarding the add-on for child care costs. However, as this add-on is not at issue here, we set it aside in analyzing the remaining elements of the support order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1339763/ | 246 Ga. 631 (1980)
272 S.E.2d 332
DUCKWORTH
v.
THE STATE.
36612.
Supreme Court of Georgia.
Submitted August 29, 1980.
Decided November 5, 1980.
Huff & Phillips, B. Wayne Phillips, P. Samuel Huff, Edwin J. Wilson, for appellant.
Thomas J. Charron, District Attorney, Debra Halpern, Assistant District Attorney, Arthur K. Bolton, Attorney General, William B. Hill, Jr., Assistant Attorney General, for appellee.
NICHOLS, Justice.
Donald Bruce "Duck" Duckworth was convicted and sentenced to life imprisonment for the murders of James Daniel "Bear" Graham and Richard David Boyd, the two life sentences to be served consecutively. This is his appeal.
The jury heard evidence authorizing the following to be found as facts beyond a reasonable doubt: Duckworth, Graham, Boyd and others dealt in marijuana. Duckworth purchased marijuana from or through Graham, as did others including Bobby Allen Wilson, Mark Snipes, Randy Saxon, Mark Ammons, Gregory Lee, Wyatt "Rabbit" Bagwell, and Raymond East. Boyd was Graham's friend.
Wilson, Snipes and Saxon had provided Duckworth some "front money" with which to purchase marijuana but Duckworth neither had obtained the marijuana nor returned the money. Ammons and Lee drove to Duckworth's apartment either to get the marijuana or to bring back the money. Duckworth and Ammons telephoned Graham, who told them he had the marijuana and would make the transfer to them that evening.
Ammons had brought his .22 caliber Ruger semi-automatic pistol with him at Duckworth's request. Duckworth loaded the pistol with hollow-point rounds and left for his connection with Graham.
Graham divided the shipment of marijuana and left to make his connections with Duckworth, Bagwell and East. East and his girl friend, Marsha Adkinson, drove to the C & M Quick Market to make their connection with Graham. When East and Adkinson arrived, an empty pick-up truck and a light-colored late-model automobile were in the parking lot of the market. A white male with curly or wavy brown hair, who was wearing wire-rimmed glasses, was sitting in the parked car. Graham and Boyd arrived, and Graham got *632 into the light-colored automobile. Graham signaled East not to follow. The light-colored automobile with Graham and the white male left followed by Boyd in his automobile. East and Adkinson remained in the parking lot. Approximately 15 minutes later, East and Adkinson heard fireworks or gunfire. When Graham did not return, they left.
A witness testified that he saw two automobiles traveling down the Old Dallas Highway "real close together." Approximately three to five minutes later he heard gunfire, after which one of the automobiles returned up Old Dallas Highway.
Duckworth returned to his apartment with the pistol and ten to eleven pounds of marijuana. He unloaded the pistol and returned it to Ammons, commenting that he had shot some possum. He delivered the marijuana to Wilson the next day, as promised.
East went to look for Graham's automobile, found it together with Graham's and Boyd's bodies, and arranged for the police to be notified.
Medical evidence indicated Graham's death was caused by a bullet in the brain fired at close range from behind. Boyd died from two gunshot wounds, one in the back of his head fired at close range, and another fired at greater range. The medical examiner testified that scrape marks on Boyd's body indicated that he was shot once while running away then shot again in the back of the head at close range.
Duckworth was contacted by the investigating officers through his girl friend and agreed to come to police headquarters for questioning. He was stopped by officers at his apartment when he arrived there instead of at police headquarters. He signed a consent to search, pursuant to which a pair of wire-rimmed eyeglasses were removed from his automobile. Pursuant to a search warrant, marijuana, $200.00 and a CCI brand .22 caliber cartridge were removed from his apartment. He was arrested, read his rights and questioned.
East and Adkinson immediately identified Duckworth's automobile, parked in the police lot among some seventy-five other automobiles, as the vehicle in which they saw Graham leave the C & M Quick Market.
Five CCI brand .22 caliber shell casings were recovered at the murder scene by investigating officers. Markings on these casings indicated that they had been fired from the .22 caliber pistol recovered from Ammon's house. The location of three of these shell casings indicated that they had contained the death bullets. Graham and Boyd had been shot with hollow-point bullets consistent with CCI brand ammunition.
*633 Duckworth testified that he knew Graham but not Boyd. He admitted his involvement in the drug dealings. He denied he made money from the sale of marijuana but the state's evidence revealed he made only $148.00 per week and that approximately $1,200.00 had passed through his checking account very recently during a four-day period. He testified that the arrangements for the marijuana connection on the evening of the murders were made by him and Graham, and that he drove a van that night and did not carry a gun. He swore he made the deal with Graham then went home. He admitted that he does occasionally wear glasses for driving but was not sure if he had them with him that night. He admitted that he may have purchased some hollow-point .22 caliber cartridges.
1. He first enumerates as error the denial of the general grounds. The foregoing evidence amply supports the verdicts under the current legal standard. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979). Rutledge v. State, 245 Ga. 768 (267 SE2d 199) (1980).
2. Duckworth next contends that the trial court erred in setting his two life sentences to run consecutively rather than concurrently. He relies upon the rationale of Wade v. State, 231 Ga. 131 (200 SE2d 271) (1973), as extended and applied by a majority of the members of this court in Anglin v. State, 244 Ga. 1 (1) (257 SE2d 513) (1979), to cases in which the death penalty is sought but two recommendations of mercy are returned by the jury without a specification as to whether the life sentences to be fixed by the court shall run concurrently or consecutively. When the death penalty is sought, the judge and jury proceed in accordance with Code Ann. §§ 27-2503 (b) and 27-2534.1. The rationale of Wade as extended and applied in Anglin is that Code Ann. § 27-2510 (a) requires that the two life sentences fixed by the court pursuant to the two recommendations of mercy of the jury be served concurrently unless the jury specifies that they be served consecutively.
The Anglin principle does not apply in the present case because the state did not seek the death penalty; hence, Code Ann. §§ 27-2503 (b) and 27-2534.1 were inapplicable and the court sitting without a jury pursuant to Code Ann. § 27-2503 (a) was authorized to fix Duckworth's two life sentences to run either concurrently or consecutively. Setting the count two sentence to run consecutively to the count one sentence was not error. The second enumeration of error is without merit.
3. In support of his third and fourth enumerations of error, Duckworth contends that his motion to suppress certain evidence should have been sustained since the warrant to search his residence was defective because the state failed to establish the reliability of the *634 confidential informants and failed to show probable cause to believe the items sought were located in his residence. He relies on Aguilar v. Texas, 378 U.S. 108 (84 SC 1509, 12 LE2d 723) (1964) and Spinelli v. United States, 393 U.S. 410 (89 SC 584, 21 LE2d 637) (1969). During a hearing on a motion to suppress, the burden rests upon the state to prove that the search and seizure were lawful. Code Ann. § 27-313 (b). However, unless the factual or credibility findings of the trial court on the motion to suppress are shown to have been clearly erroneous, those findings must be accepted by this court. Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974); Tucker v. State, 245 Ga. 68 (3) (263 SE2d 109) (1980).
The reliability of the confidential informants was established primarily by testimony of the investigating officer presented to the justice of the peace prior to his issuing the warrant. The reliability of the information obtained from one confidential informant had been verified through an independent source. Another informant had been a friend of the investigating officer for over twelve years, and also was the brother of one of the two murder victims. Statements of other informants were verified by polygraph tests. Two of the informants risked criminal prosecution by divulging information because they were some of the other persons who were supposed to have received a "drop" from the victims on the night of the homicides. The latter two informants had observed one of the victims get into Duckworth's automobile at the C & M Quick Market and had observed Duckworth drive away from the market with one of the victims in his automobile, accompanied by the other victim following in a second automobile. The finding of the trial court regarding reliability of the confidential informants is not clearly erroneous.
Neither is the trial court's finding regarding probable cause clearly erroneous. The pistol used in the commission of the crimes had not been located during the consent search of Duckworth's automobile. Duckworth was reputed to have returned to his home after the homicides. Personal items were missing from the bodies of the victims which were not discovered during the search of Duckworth's automobile. It was reasonable to infer that one or more of these items would be found during the search of Duckworth's residence. Murphy v. State, 238 Ga. 725 (1) (234 SE2d 911) (1977). The third and fourth enumerations of error are without merit.
4. Duckworth contends that the trial court erred in refusing to require the jurors to be examined individually on voir dire outside the presence of each other. "The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within *635 the sound discretion of the trial court, and only in the event of manifest abuse will it be upset upon review." Whitlock v. State, 230 Ga. 700, 706 (5) (198 SE2d 865) (1973). More specifically, this court has held that "whether or not this individual questioning of the jurors is to take place outside of the presence of the other jurors is one of those matters lying within the sound discretion of the trial court." Finney v. State, 242 Ga. 582, 586 (4) (250 SE2d 388) (1978).
Duckworth supported his motion for sequestered examination by the testimony of a clinical psychologist to the effect that sequestered voir dire examination of jurors would give a more accurate profile of biases and prejudices. The mere possibility that jurors' answers might be more accurate under sequestered individual examination falls far short of a showing of sufficient prejudice to require a holding that the trial court manifestly abused his discretion. Stinson v. State, 244 Ga. 219, 221 (259 SE2d 471) (1979). The fifth enumeration of error is without merit.
5. Duckworth contends next that the trial court abridged his right of confrontation by sustaining the State's objection to his question as to the source of the marijuana. The state's witness under cross examination by the defense already had answered the question more than once by saying that he did not know where Graham got the marijuana; that he merely had provided the money with which Graham purchased it. The question was repetitive. No abuse of discretion has been illustrated. Davis v. State, 230 Ga. 902, 904 (3) (199 SE2d 779) (1973); Ruffin v. State, 243 Ga. 95, 104 (16) (252 SE2d 472) (1979).
6. In his seventh enumeration of error, Duckworth contends that the trial court erred by admitting in evidence a mugshot taken of him at the time of his arrest. The photograph was highly relevant because the state's witnesses Marsha Adkinson and Ray East observed the victims drive away from the C & M Quick Market accompanied by a white male who had wavy or curly brown hair and who was wearing wire-rimmed glasses. A determination by the jury of whether or not Duckworth met this description thus was crucial to the state's proof. The photograph was admissible for that purpose. Cooper v. State, 229 Ga. 277 (3) (191 SE2d 27) (1972).
7. The trial court sustained the defense's hearsay objection to the testimony of the state's ballistics expert insofar as the witness swore that another firearms examiner had reached the same conclusions based upon his examination of the .22 pistol. Duckworth now contends that the court on its own motion should have instructed the jury to ignore the testimony to which the objection related. No motion for corrective action was made and denied during trial. The eighth enumeration of error is without merit. Hightower v. State, 137 *636 Ga. App. 790 (4) (224 SE2d 842) (1976).
8. During trial, Duckworth objected to the introduction of any evidence as to bullet fragments removed from Boyd's body on the ground that the bullet fragments had been lost and were not available at trial. On appeal, Duckworth contends that Patterson v. State, 238 Ga. 204 (232 SE2d 233) (1977), precluded introduction of such evidence because due process required that analysis of the bullet fragments not be left completely within the province of the state. Assuming that the objection at trial and the enumeration of error raise the same issue, Patterson involved no more than identification of a substance as contraband. This court has declined to extend the Patterson contraband principle to create a right to an independent examination in behalf of the defendant of all physical evidence utilized in a criminal case. Moore v. State, 240 Ga. 807, 814 (5) (243 SE2d 1) (1978); Emmett v. State, 243 Ga. 550, 554 (3) (255 SE2d 23) (1979). This court declines to extend the Patterson principle to the bullet fragments involved in the present case.
Furthermore, the testimony that the bullet fragments could have been fired from the .22 pistol introduced in evidence was in no respect crucial as to guilt or innocence, and its introduction, if error, was harmless. The defense was able to have all other physical evidence in the possession of the state subjected to independent examination and analysis. The state's ballistics expert testified that the shell casings definitely were fired in the .22 pistol that was in evidence. Furthermore, the state's evidence placing Duckworth at the murder scene with the pistol was overwhelming. Duckworth borrowed the pistol from Ammons, took it with him that night, then returned it to Ammons. Duckworth admitted his participation in the drug transactions that night but denied he had the pistol or that he shot the victims. He admitted that he may have purchased .22 hollow-point ammunition. The shell casings found at the murder site were from the same brand of hollow-point .22 caliber ammunition recovered from his residence. He was seen driving away from the market with the victims just minutes before the death shots were fired. The ninth enumeration of error is without merit.
9. Duckworth contends in his tenth enumeration of error that the trial court erred by allowing him to be cross-examined regarding his employment of an independent expert to examine the.22 pistol introduced by the state in evidence as the murder weapon. An objection was interposed to the entire line of questioning, but Duckworth was allowed to testify that an expert had been hired to check on whether or not the pistol was the weapon that had been used to shoot Graham and Boyd. The trial court sustained a hearsay objection to the question of whether or not Duckworth knew the *637 results of his expert's tests. No abuse of discretion as to the scope of cross-examination by the state has been shown. Ruffin v. State, 243 Ga. 95, 104 (16) (252 SE2d 472) (1979).
10. Duckworth contends that the trial court erred in excluding the testimony of Lieutenant Keheley and and Agent Pierce. This testimony was tendered by the defendant to impeach Sergeants Lee and Tressel, who had conducted the investigation of the murders. Sergeants Lee and Tressel had testified that they were confident that Duckworth was the murderer, that no one else was being investigated or was under suspicion for the murders, and that the investigation of the murders was complete.
Agent Pierce apparently would have testified that an unnamed informant had told Pierce that he had heard of a second individual, also unnamed, who knew of a third individual, also unnamed, who might be able to implicate a fourth individual in the murders for which Duckworth was on trial. Lieutenant Keheley's testimony was still further removed from the fact in that he only could have testified that Agent Pierce told him the foregoing. The state's hearsay objection properly was sustained to this line of questioning.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725503/ | 675 So. 2d 1024 (1996)
STATE of Florida, DEPARTMENT OF REVENUE, By and on Behalf of Nadean THOMAS, Appellant,
v.
Lee Roy THOMAS, Appellee.
No. 95-4548.
District Court of Appeal of Florida, First District.
June 25, 1996.
*1025 Joseph R. Boyd and William H. Branch of Boyd & Branch, P.A.; Chriss Walker, Department of Revenue, Tallahassee, for Appellant.
Dale E. Rice, Crestview, for Appellee.
PER CURIAM.
The State of Florida, Department of Revenue, by and on behalf of Nadean Thomas, appeals an order granting a motion for relief from the final judgment of dissolution. The order reduced Lee Roy Thomas' child support obligation from $500 to $400 per month. We reverse.
Lee Roy Thomas contends that he was entitled to relief under Rule 1.540(a), Florida Rules of Civil Procedure, because the initial award of $500 child support was due to a "clerical" mistake in the entry of the judgment. However, clerical mistakes under Rule 1.540(a) encompass only errors or mistakes from accidental slip or omission and not errors or mistakes in the substance of what is decided by the judgment or order. Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162, 1164 (Fla.1979); Peters v. Peters, 479 So. 2d 840, 841 (Fla. 1st DCA 1985)(change in the amount of child support due is a change in "substance" not a "clerical" mistake). There was no evidence in this case that the trial judge who entered the final judgment of dissolution meant to award only $400 in child support support, but through an accidental slip or omission awarded $500 instead.
Appellant's Issue II, arguing that the effect of the trial court's order will be to erroneously retroactively modify vested child support arrearages, has been rendered moot by our reversal of that order. Upon remand, if the trial court wishes to reduce past-due child support arrearages, it must be guided by the law that "absent extraordinary or compelling circumstances such as waiver, laches, estoppel, or reprehensible conduct on the part of the custodial parent, a trial court cannot cancel or retrospectively reduce the amount of past-due installments owed." State, Dept. of Health and Rehabilitative Services v. Burns, 654 So. 2d 1014, 1016 (Fla. 1st DCA 1995).
REVERSED and REMANDED for proceedings consistent with this opinion.
BOOTH, JOANOS and VAN NORTWICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1339804/ | 272 S.E.2d 357 (1980)
Barner A. HUNT, Personal Representative of the Estate of Jacqueline W. Hunt, Deceased,
v.
MONTGOMERY WARD AND COMPANY, INC.
No. 8019DC361.
Court of Appeals of North Carolina.
December 2, 1980.
*359 Pollock, Fullenwider & Cunningham, P. A. by Bruce T. Cunningham, Jr., Southern Pines, for plaintiff-appellee.
Frazier, Frazier & Mahler by Harold C. Mahler and Patrick A. Weiner, Greensboro, for defendant-appellant.
WHICHARD, Judge.
Defendant assigns error to the trial court's denial of its motions for directed verdict at the conclusion of plaintiff's evidence and at the conclusion of all the evidence, and the denial of its motion for judgment notwithstanding the verdict. Defendant contends the plaintiff has shown no evidence of actionable negligence on defendant's part; and that if actionable negligence was shown, by his own evidence plaintiff established his decedent's contributory negligence as a matter of law.
A motion for directed verdict under Rule 50(a) of the North Carolina Rules of Civil Procedure, G.S. 1A-1, and a motion for judgment notwithstanding the verdict under G.S. 1A-1, Rule 50(b) present the question whether the evidence was sufficient to entitle the plaintiff to have a jury pass on it. Dickinson v. Pake, 284 N.C. 576, 583, 201 S.E.2d 897, 903 (1974); Kelly v. Harvester Co., 278 N.C. 153, 157, 179 S.E.2d 396, 397 (1971). The question of sufficiency *360 of the evidence to send a case to the jury is a question of law. The question presented to the appellate court in reviewing the decision of the trial court "is the identical question which was presented to the trial court by defendant's motion ..., namely, whether the evidence, when considered in the light most favorable to plaintiff, was sufficient for submission to the jury." Kelly, 278 N.C. at 157, 179 S.E.2d at 397. The trial court should deny motions for directed verdict and for judgment notwithstanding the verdict when, viewing the evidence in the light most favorable to the plaintiff and giving the plaintiff the benefit of all reasonable inferences, it finds "`any evidence more than a scintilla' to support plaintiff's prima facie case in all its constituent elements." 2 McIntosh, North Carolina Practice and Procedure 2d, § 1488.15 (Phillips Supp.1970); see also Gwyn v. Motors, Inc., 252 N.C. 123, 127, 113 S.E.2d 302, 305 (1960). In a negligence case, "[i]f the evidence in the light most favorable to the plaintiff, giving him the benefit of all permissible inferences from it, tends to support all essential elements of actionable negligence, then it is sufficient to survive the motion to nonsuit." Lake v. Express, Inc., 249 N.C. 410, 412, 106 S.E.2d 518, 520 (1959).[1]
Applying these well-established principles to the evidence adduced at the trial of this case, we find the following:
Defendant's witness, Ronald Dance, an employee in the major appliance section of defendant's store testified that defendant's employees had prepared a sign containing the word "HOT" which was "placed on the middle of the cooking surface of the stove" when the stove had been demonstrated. Viewing this evidence in the light most favorable to the plaintiff, we believe the jury could have found therefrom that the defendant had the requisite notice that the stove posed a potential hidden danger or unsafe condition to its patrons. "The inviter is charged with knowledge of an unsafe or dangerous condition on his premises during business hours created by his own negligence or the negligence of an employee acting within the scope of his employment, or of a dangerous condition of which his employee has notice." Long v. Food Stores, 262 N.C. 57, 60, 136 S.E.2d 275, 278 (1964) (emphasis supplied).
The witness Dance further testified that at the time plaintiff's decedent was injured the "`HOT' sign" was located on the "back guard" of the stove where defendant's employees customarily placed it "after the stove cools down." He testified that "[t]here [were] no locking devices on [the stove's] knobs to prevent them from being turned on nor was there any tape or other protective device across the knobs when the stove was not being demonstrated." The decedent's daughter, Tricia Burnett, testified for the plaintiff that she "did not see any signs or notices indicating not to touch the stove" at the time of her mother's injury. She also testified that "[t]here were no ropes and cords surrounding the stove"; that she "saw no employees of the store in the immediate area of the stove"; and that she did not recall "any kind of indication of warning." Viewing this evidence in the light most favorable to the plaintiff, we believe the jury could have found therefrom that even though defendant had notice, as set forth above, of the potential danger posed to its patrons by the stove, it failed to exercise ordinary care to keep its premises in a reasonably safe condition with regard to display of the stove. The jury also could have found from this evidence that defendant failed to exercise ordinary care to warn its patrons of the potential hidden danger or unsafe condition posed by the display of the stove. While the proprietor of a store is not an insurer of the safety of customers on the premises, "he does owe to them the duty to exercise ordinary care to keep the premises in a reasonably safe condition and to `give warning of hidden perils or unsafe conditions in *361 so far as can be ascertained by reasonable inspection and supervision'." Jones v. Pinehurst, Inc., 261 N.C. 575, 578, 135 S.E.2d 580, 582 (1964).
On the issue of defendant's negligence, then, the evidence recited above, viewed in the light most favorable to the plaintiff, presented a question for the jury to decide as to whether defendant failed to exercise ordinary care in that it failed to maintain its premises in a reasonably safe condition. It also presented a question for the jury as to whether defendant's failure to warn its patrons of a potential hidden peril or unsafe condition on its premises constituted a failure to exercise ordinary care for their safety. Thus, the trial court properly denied defendant's motions for a directed verdict and for judgment notwithstanding the verdict insofar as they related to the issue of defendant's negligence.
Defendant further contends in this assignment of error that its motions for directed verdict and for judgment notwithstanding the verdict should have been granted because the evidence established as a matter of law the contributory negligence of plaintiff's decedent. This issue, too, "necessitates an appraisal of [the] evidence in the light most favorable to [plaintiff]." Morgan v. Tea Co., 266 N.C. 221, 228, 145 S.E.2d 877, 883 (1966). As Justice Huskins stated in Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979):
With respect to contributory negligence as a matter of law, `[t]he general rule is that a directed verdict for a defendant on the ground of contributory negligence may only be granted when the evidence taken in the light most favorable to plaintiff establishes her negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Contradictions or discrepancies in the evidence even when arising from plaintiff's evidence must be resolved by the jury rather than by the trial judge.'
Rappaport, 296 N.C. at 384, 250 S.E.2d at 247.
Applying this well-established principle to the evidence adduced here, we find that defendant's witness, Ronald Dance, testified that the stove in question was "the newest product in Montgomery Ward's line of ranges" and "was the top of the line, was the best looking stove, and had the most features on it." He further testified that it "was placed on the main aisle to draw attention to it." In describing the stove he said: "The top looks like a counter top, but the burners are marked by spiderweb patterns in the smooth glass top." (Emphasis supplied.) Plaintiff's witness, Tricia Burnett, in her description of the stove, stated that it had "a flat ceramic white top with patterns of lines to indicate the burner areas."
Viewing this evidence in the light most favorable to the plaintiff, we believe the jury could have found therefrom that a reasonably prudent person under the circumstances could be attracted to observe the "newest product" in the "top of the line" of a product in everyday household use, especially when the product was placed on display in the store at a place and in a manner "to draw attention to it." Further, especially since the top of the product looked "like a counter top" rather than having clearly demarcated "eyes" as stoves customarily have had, we believe the jury could have found that a reasonably prudent person under the circumstances might have "brushed her left hand across the surface," as plaintiff's decedent did, without being cognizant of the potential danger in doing so.
Under the evidence in this case we cannot say as a matter of law that a reasonably prudent person under the circumstances could not have expected to be able to engage in a physical examination of merchandise displayed for sale as here without first testing the product for potential injury-inducing effects. Only a jury could answer the question whether under these circumstances the plaintiff's decedent could reasonably have assumed that the stove was, like other merchandise in the store, in suitable condition for physical inspection by prospective purchasers.
*362 On the issue of plaintiff's contributory negligence, then, the trial court properly denied defendant's motions for a directed verdict and for judgment notwithstanding the verdict. Defendant's first assignment of error is overruled.
Defendant also assigns error to the trial court's failure "to instruct the jury on the law pertaining to the duty owed to an invitee by a store owner." The pertinent portion of the court's charge on the issue of defendant's negligence was as follows:
Members of the jury, as I said, there are three issues in this case. Let's take them one at a time now. The first one is: "Was Jacqueline Hunt injured by the negligence of the defendant?" On this issue, the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, that she suffered a personal injury as a proximate result of the negligence of the defendant. Negligence is the lack of ordinary care. It is the failure to do what a reasonably careful and prudent person should have done, or the doing of something which a reasonably careful and prudent person would not have done, considering all the circumstances existing on the occasion in question. The party seeking damages as a result of negligence has the burden of proving not only negligence, but also that such negligence was the proximate cause of the injury. Proximate cause is a real cause, the cause without which the claimed injury would not have occurred, and one which a reasonably careful and prudent person could foresee would probably produce such injury or some similar injurious result. Members of the jury, the plaintiff contends that you should answer the first issue yes. The defendant contends that you should answer the first issue no. If you find by the greater weight of the evidence that the defendant was negligent in that he failed to act as a reasonably prudent person would have acted and further find by the greater weight of the evidence that such negligence was a proximate cause of the plaintiff's damages, then you should answer the first issue yes. If you fail to so find, or if you are unable to determine where the truth lies, you should answer the first issue no.
General Statutes section 1A-1, Rule 51(a) requires the trial court to "declare and explain the law arising on the evidence given in the case." As Judge Vaughn noted in Redding v. Woolworth Co., 14 N.C.App. 12, 16, 187 S.E.2d 445, 447 (1972): "The decisions of the Supreme Court of North Carolina are consistently to the effect that a mere declaration of the law in general terms ... is not sufficient."
In Griffin v. Watkins, 269 N.C. 650, 153 S.E.2d 356 (1967), Justice Sharp (later Chief Justice) said for our Supreme Court:
Failure to exercise due care is the failure to perform some specific duty required by law. To say that one has failed to use due care or that one has been negligent, without more, is to state a mere unsupported conclusion. `(N)egligence is not a fact in itself but is the legal result of certain facts.' (Citation omitted.) In his charge, the trial judge must tell the jury what specific acts or omissions, under the pleadings and evidence, constitute negligence, that is, the failure to use due care.
Griffin, 269 N.C. at 654, 153 S.E.2d at 359 (emphasis supplied). The instruction in Griffin was held erroneous in giving "the jury carte blanche to find [the defendants] generally careless or negligent for any reason which the evidence might suggest to them." Griffin, 269 N.C. at 654, 153 S.E.2d at 359.
Like the court in Redding, "we regret the necessity of prolonging the litigation." Redding, 14 N.C.App. at 16, 187 S.E.2d at 447. We are, however, constrained to hold, as did the court there, that the trial judge failed to "declare and explain the law arising on the evidence" as required by Rule 51(a) in accordance with the standards established therefor by the decisions of our courts. The instructions to the jury on the issue of defendant's negligence consisted of a brief summary of the evidence; a statement of the issue; a statement on the burden of proof; and general *363 definitions of negligence and proximate cause. The trial court failed to relate the principles of law set forth in its instructions to the evidence in this case. It failed to specify the duties owed by defendant to plaintiff's decedent and the acts or omissions by defendant established by the evidence from which the jury could find a breach of those duties. It failed to relate the contentions of negligence supported by the evidence. See N.C.P.I.-Civil 805.55. Such failure is inherently prejudicial under the decisions of our courts. In Investment Properties v. Norburn, 281 N.C. 191, 188 S.E.2d 342 (1972), our Supreme Court stated, per Justice Moore:
G.S. 1-180, as now incorporated in G.S. 1A-1, Rule 51, required the judge to explain and apply the law to the specific facts pertinent to the issue involved. A mere declaration of the law in general terms was not sufficient to meet the requirements of the statute. (Citation omitted.) It is the duty of the court, without a request for special instructions, to explain the law and to apply it to the evidence on all substantial features of the case. (Citation omitted.) A failure to do so constitutes prejudicial error for which the aggrieved party is entitled to a new trial.
Investment Properties, 281 N.C. at 197, 188 S.E.2d at 346 (emphasis supplied).
Because of the failure of the trial court to declare and explain the law arising on the evidence in the case as required by Rule 51(a) in accordance with the standards established in the decisions cited and other decisions of the appellate courts of North Carolina, there must be a new trial.
New trial.
CLARK and WEBB, JJ., concur.
NOTES
[1] The Lake case was decided prior to adoption of the North Carolina Rules of Civil Procedure. The reasoning of the Lake case with respect to the motion to nonsuit was carried forward and applied to motions for directed verdict and judgment notwithstanding the verdict in Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1950316/ | 91 N.W.2d 688 (1958)
Ronald H. HARTMAN, a Minor, by Alfred Hartman, His Father, Appellee,
v.
Wendell KRUSE and Louis Kruse, Appellants.
No. 49470.
Supreme Court of Iowa.
July 28, 1958.
Rehearing Denied September 19, 1958.
*689 Murray & Murray, Sheldon, and Roseberry & Down, LeMars, for appellants.
Orville A. Hames, Ramsen, and Thomas L. McCullough, Sac City, for appellee.
WENNERSTRUM, Justice.
Plaintiff, a minor, in an action brought in his behalf by his father, sought recovery under the guest statute for personal injuries received in an automobile accident. It occurred at night at a T intersection of a graveled country road and a blacktop numbered highway. Defendants' motions for a directed verdict were overruled and upon submission of the cause to the jury a verdict was returned against them. Later defendants' motions for judgment notwithstanding the verdict and for new trial were overruled. They have appealed.
Ronald H. Hartman, the plaintiff, was 17 years of age at the time of the accident which occurred on April 2, 1956. He and the defendant, Wendell Kruse, lived with their respective parents on nearby farms in Plymouth County, Iowa. They are related by marriage.
The plaintiff had attended a national guard drill at LeMars on the evening of the accident. Later the young men went to the plaintiff's home. The defendant, Wendell Kruse, was driving his father's car. Shortly after 10 o'clock p. m. they left the Hartman home in the Kruse car to attend a dance at Akron, approximately 12 miles away. They drove west over a graveled hilly road to where the accident occurred some 10 miles from the Hartman home. The Kruse boy when he observed the nature of the intersection he was approaching endeavored to turn and guide the car as to avoid striking a railroad embankment and a telephone pole across the road to the west. The car rolled over once as it skidded into the ditch and landed on its wheels. Both boys were thrown out on the right hand side.
Inasmuch as the plaintiff contends the Kruse boy was driving the car in a reckless manner at the time of the accident and over the road they had traveled we deem it advisable to relate the testimony concerning the manner in which the car was driven from the time it left the Hartman farm until it entered the T intersection. Two of several intervening north and south roads between the Hartman home and Highway 12 where the accident occurred were marked with stop signs. The first intervening road which had a stop sign was about one and one-half miles west of the Hartman home, and is known as Highway No. 29. The second road which had a stop sign was about one and six-tenths miles east of the place *690 of the accident. There is testimony by the plaintiff the Kruse boy stopped his car at the first stop sign. He also testified the defendant, Wendell Kruse, increased his speed after crossing the last referred to highway and he observed the speedometer indicated a speed of 85 miles per hour when they reached a bridge about five and one-half miles from the Hartman home and about four and one-half miles from the place of the accident. This rate of speed is denied by the defendant but under our established holdings we are to consider the testimony of the plaintiff in the light most favorable to him in considering a motion for a directed verdict. There is testimony on the part of the plaintiff he asked the defendant to slow down, that the defendant laughed and said: "I know how to drive this car." He also testified Wendell said he was going to overhaul the car in two weeks and he didn't care if he did drive the heck out of it. These statements were made approximately four and one-half miles east of where the accident took place.
There is a hill about a quarter of mile from the T intersection on Highway 12 where the accident occurred. There is a stop sign at this road. The defendant driver testified he first observed the stop sign after the car had leveled off at the bottom of the hill and the lights of his car illuminated it. He was then about 100 feet away from the sign and he then put on his brakes. The plaintiff twice gave testimony the defendant "slammed on his brakes". The car skidded on into the intersection and continued another 62 feet to the west shoulder of Highway No. 12. It then rolled over. When the car came to rest Wendell, the driver, was lying on the ground about three feet from the car and the plaintiff was about ten feet from it.
The plaintiff in his amended and substituted petition based his claim on recklessness in the main upon the claimed dangerous rate of speed the car driven by the defendant, Wendell Kruse, at and prior to the time of the accident and alleged the automobile was driven at a speed of between 80 and 85 miles an hour to a point where the road on which the defendant was driving ended. It is further alleged that the driver of the car failed to have the automobile under control when he drove into the T intersection previously mentioned.
In connection with these allegations of the petition it should be noted the plaintiff did not testify as to any particular rate of speed after the occupants of the car had passed the bridge some four and a half miles east of Highway Number 12. The only testimony given by the plaintiff relative to the movement of the car after it passed the bridge is as follows:
"* * * Then we came to this next stop sign. Wendell just slammed on his brakes. He didn't stop. He just slammed it in second and went right on across. * * * After Wendell Kruse passed this second stop sign I said `Wendell, we should have stopped at this stop sign.' He just said, `Yeah, I guess so,' and just took right off and kept right on going. After that point the road was still hilly.
"Q. What happened after that, if anything? A. Well, I was scared. I didn't know what to do. And he came over this last hill and as the car started to go down I shut my eyes because I didn't know what to do. The next thing I knew he hit his brakes.
"Q. Did you have your eyes closed at the time that he hit his brakes? A. No. I opened them up and there was the black-top right ahead of us.
"Q. Well, what if anything did you see at that point. A. As soon as I seen the black-top I blacked right out."
I. The initial question for our determination is whether the facts heretofore *691 set forth generate a jury question relative to the claimed recklessness of the defendant driver. We have set out such parts of the plaintiff's testimony which, interpreted in the light most favorable to him, must be considered in determining whether it discloses "* * * a situation from which reasonable men might draw an inference of `no care, coupled with disregard for consequences'." Anderson v. Elliott, 244 Iowa 670, 677, 57 N.W.2d 792, 795. We have said "The evidence must disclose something from which recklessness could be legitimately inferred, * * *." Wilde v. Griffel, 214 Iowa 1177, 1180, 243 N.W. 159, 160; Goetsch v. Matheson, 246 Iowa 800, 806, 68 N.W.2d 77.
However, in order that the action and conduct of the driver of a car can be classified as reckless "* * * it must be such as to manifest a heedless disregard or indifference to the rights of others; * * *". Wilde v. Griffel, supra. We have also held in order to show recklessness there must be evidence of (1) "* * no care, coupled with disregard for consequences. * * *", (2) there must be evidence a driver "* * * had actual knowledge of an existing danger, or there was a danger so obvious that he should be cognizant of it, and proceeded without any heed of or concern for the consequences. * * *"; and (3) "* * * the consequences of the actions of the driver are such that the occurrence of the catastrophe is a probability rather than a possibility. * * *" Fritz v. Wohler, 247 Iowa 1039, 78 N.W.2d 27, 28, and cases cited.
II. As heretofore shown the defendant driver failed to stop at the intersecting road and stop sign approximately one and six-tenths miles from the road where the accident occurred. It was after the car had passed this stop sign the plaintiff made the remark previously quoted and the defendant replied as heretofore set out. We do not believe the statement of the plaintiff can be interpreted as amounting to a protest or a complaint relative to an excessive rate of speed. Neither can we interpret the reply of the defendant driver as indicating a mental attitude of indifference to and a complete disregard for consequences.
In Goodman v. Gonse, 247 Iowa 1091, 76 N.W.2d 873, 876, the plaintiff introduced testimony that shortly before the accident there considered one of the occupants of the car said to the driver he was "driving too fast" and in reply the driver said: "Shut your month, I don't like back seat drivers, you can get up here and drive." We made no extensive comment about these remarks in the opinion but upon all the evidence in the plaintiff's case we held there was not sufficient showing from which an inference of recklessness might be drawn.
III. We should also consider whether there is evidence of "* * * no care, coupled with disregard for consequences". In the present case there is undenied evidence the defendant driver, as soon as he observed the stop sign at the Highway 12 T intersection, put on the brakes of his car. It was then 100 feet from the stop sign. From this point it skidded into the intersection and then proceeded another 62 feet to the west shoulder of Highway 12 and rolled over. As the car skidded into the highway the defendant driver, according to his testimony: "* * * thought I had better straighten it out and it kept going. Then I thought, well, there is a telephone pole straight ahead and a big embankmenta low embankment, but I didn't want to hit that so I tried to turn to the left."
We are unable to conclude the driver's actions showed "* * * acts utterly inconsistent with prudence or proper regard for the safety of the guest in his car, from which the inference could be drawn that the operation of the vehicle was reckless." Goodman v. Gonse, supra, 247 Iowa 1091, 76 N.W.2d 873, 877, 878; *692 Wilde v. Griffel, supra, 214 Iowa 1177, 1179, 243 N.W. 159. In the instant case, as in the Wilde case, there is no evidence the driver did not do everything in his power to avoid the accident.
IV. We should determine whether the defendant driver "* * * had actual knowledge of an existing danger, * * *" and then proceeded "* * * without any heed of or concern for the consequences. * * *"
It is true there is testimony by the plaintiff Wendell had been over the road traveled. The defendant testified he had not driven over the road but had ridden over it a couple of nights before. Relative to knowledge of the nature of the intersection at Highway 12 the defendant driver testified: "* * * Then after this second stop sign I slowed down to about 45 because I kind of thought there was a dead endI thought there was a dead end ahead and I was looking for a sign of some kind to tell me that there was a dead end. I didn't know exactly how far it was from the second stop sign to the dead end of the road. I thought it was at least two miles or more. I expected there would be some sign when I got there to tell it was a dead end. There is a stop sign at the north and south highway that is about a mile and a half or a mile and six-tenths east of Highway No. 12 where the accident took place. That intersecting road was a graveled road. After I reached that road that is approximately a mile and a half east of Highway 12, I drove the car westward toward Highway No. 12 at about 45 miles an hour."
There is no other evidence of Wendell's knowledge relative to the "dead end" intersection. We have held where the driver does not have conscious knowledge that a road ends at a T intersection one is not guilty of recklessness in not observing the character of the intersection in time. Tucker v. Heaverlo, Iowa, 86 N.W.2d 353, 357; Wilde v. Griffel, supra; Tomasek v. Lynch, 233 Iowa 662, 10 N.W.2d 3.
As shown by the quoted testimony the defendant driver had knowledge he was approaching a T intersection but he did not know just where it was. When he did observe the stop sign and road he put on the brakes and sought to turn the car and avoid hitting the embankment across the road. It is our considered conclusion the defendant driver did everything he could to avoid the accident and that he did not proceed "without any heed or concern for the consequences."
In Tucker v. Heaverlo, supra, we held where the driver put on the brakes approximately 25 feet from a ditch "* * * it does indicate an effort to stop the automobile as soon as the driver became aware of the apparent danger" [86 N.W. 2d 356]. In Tomasek v. Lynch, supra, there is evidence the car skidded for 20 feet before it went over an embankment. In each of the last two cited cases this court held there was not sufficient evidence of recklessness to justify submitting that question to the jury. In the present case the brakes were put on approximately 162 feet from the ditch. It may be true the driver then tried to straighten up the car when it began to skid but he was endeavoring to control and stop it. He also endeavored to turn it to the left. All these acts, it is our conclusion, do not indicate a lack of or unconcern for consequences.
Other cases where this court has held there was not sufficient evidence of recklessness to justify submitting that question to a jury, where the driver of a car sought to stop and control it, are: Brown v. Martin, 216 Iowa 1272, 1285, 248 N.W. 368; Scott v. Hansen, 228 Iowa 37, 44, 46, 289 N.W. 710; Schmitt v. Cutkomp, 248 Iowa 575, 81 N.W.2d 662, 665.
It is when a driver has conscious knowledge of a dangerous situation and then does not exercise the slightest care to avoid injury to his guest that recklessness is shown. Roberts v. Koons, 230 Iowa 92, 296 N.W. 811; Peter v. Thomas, 231 Iowa 985, 2 N.W.2d 643; Long v. Pearce, *693 233 Iowa 1025, 10 N.W.2d 50. Such is not the situation in the present case.
V. Upon a review of the evidence heretofore set out, as well as all the evidence disclosed by the record we are unable to conclude "* * * the consequences of the action of the driver are such that the occurrance of the catastrophe is a probability rather than a possibility." There is nothing to indicate the action of the driver, in the light of what he endeavored to do, showed there was a probability of a catastrophe rather than a possibility.
VI. The plaintiff's testimony concerning the speed of 85 miles per hour was when the car was at or near the bridge approximately four and a half miles from Highway 12, the intersecting road. In the light of the comment in the dissenting opinion relative to speed it can be again stated there is no reference to the probable speed of the car just before the accident except as previously stated. It is true the plaintiff made a statement regarding the speed of the car during the last quarter of a mile before reaching the intersecting road when he testified: "I knew the car was going a fast rate of speed." This, however, is a comparative term. It does not indicate a particular mileage per hour. And it was then, or shortly thereafter when, according to the plaintiff's own statement, "The next thing I knew he hit his brakes". Speed in itself does not amount to recklessness. Thornbury v. Maley, 242 Iowa 70, 74, 45 N.W.2d 576, and cases cited. And as stated in the Maley case the question whether a particular speed is dangerous depends upon the surroundings and the attendant circumstances. A fact to be considered is the effort of the defendant to stop his car, which is substantiated by the plaintiff's statement previously quoted. And as heretofore set out in another division of this opinion we have held even when a driver has conscious knowledge of a dangerous situation recklessness is shown only when the driver does not exercise the slightest care to avoid injury to his guest. Upon the plaintiff's own version of the situation immediately prior to the accident there is no evidence the defendant did not exercise the slightest care.
VII. In Shenkle v. Mains, 216 Iowa 1324, 1328, 247 N.W. 635, 637, we commented on the exceptional grounds upon which a plaintiff might recover in a recklessness case as follows: "* * * The general rule is that a guest cannot recover. The exceptional grounds are: (1) `intoxication' of the driver; (2) `reckless operation' by the driver. The exceptional character of these grounds implies an infrequency of application thereof. To use and apply the exceptions as the general rule, and in effect to supplant the general rule with the constant use of the exceptions, is to drive against a red light. If the application of the exceptions becomes more frequent than that of the general rule, it may well be deemed a warning sign that we are misapplying the exceptions. * * *" The foregoing statement has application in the instant case.
We have concluded the defendant's motion for a directed verdict at the close of all the evidence should have been sustained. Inasmuch as the motion heretofore mentioned was overruled the subsequent motion for judgment notwithstanding the verdict should have been approved. It is very apparent the plaintiff presented all the evidence obtainable and it is hardly possible additional witnesses or testimony could be secured if the case is retried. Under 58 I.C.A. Rule 349, R.C.P., we may enter or direct the trial court to enter a final judgment. It is our conclusion the trial court should do so. Schneider v. Parish, 242 Iowa 1147, 49 N.W.2d 535, 540.
The judgment entered against the defendants by reason of the verdict returned is reversed and remanded and it is directed a judgment should be entered in favor of the defendants and against the plaintiff for costs.
Reversed and remanded, with directions.
*694 BLISS, HAYS, THOMPSON, LARSON, and PETERSON, JJ., concur.
OLIVER, J., and GARFIELD, C. J., dissent.
OLIVER, Justice (dissenting).
I respectfully dissent.
Not only does the majority opinion misinterpret legal propositions involved in this case but it also overlooks important facts which, if considered, would require the conclusion that the trial court did not err in overruling defendant's motions for directed verdict and for judgment notwithstanding the verdict. The majority tells us there is a rule of law that in passing upon such motions, "we are to consider the testimony of the plaintiff in the light most favorable to him * * *." The correct rule, I understand, is that for such purpose, not only the testimony of plaintiff, but also all other evidence, should be considered in the light most favorable to plaintiff. However, the serious error here is not that the majority mistakes the rule but that it fails to consider the evidence in the light required by such rule, overlooks evidence favorable to plaintiff, considers evidence in the light most favorable to defendant and usurps the province of the jury by passing upon the weight of evidence.
April 2, 1956, plaintiff Ronald Hartman lived on a farm two miles north and about ten miles east of Akron. Wendell Kruse, for convenience referred to herein as the defendant, lived a short distance farther east. Defendant's age, not shown in the majority opinion, was then seventeen years. At 10:15 P. M. the two boys left plaintiff's home in the 1954 Chevrolet automobile of defendant's father, driven by defendant, to attend a dance at Akron. The lights and brakes of the automobile were good. The boys were late in starting to the dance which began about 8 P. M. and ended about 11:30. En route to Akron plaintiff was thrown out of the car and injured when it left the road and overturned at a dead end intersection.
About two miles west of plaintiff's home Highway 29 ran north and south. Eight miles farther west was Highway 12 which also ran in a general north-south direction. Both of these highways were hard surfaced, blacktop. Two of the roads running west from 29, both of which defendant had previously traveled, came to dead ends at Highway 12 eight miles west of Highway 29. On the night of April 1, defendant had driven plaintiff to Akron. On that occasion defendant had traveled south on Highway 12 for several miles before turning west to Akron. This third route was blacktop and was the best route to Akron. However, it was two miles longer than the two other routes, each of which ran west from Highway 29 to Highway 12, where each came to a dead end, from which places travelers could take Highway 12 south to Akron.
En route to Akron on the night of April 2, defendant drove west from plaintiff's home to and across Highway 29 and continued west on the graveled road toward Highway 12. Plaintiff asked him why they were taking this road, and said they should take the blacktop. Defendant answered that he knew this road, had driven it before and had been over it just two nights before and knew it was a good road. Plaintiff was not familiar with it. Concerning this road a witness testified: "It is approximately eight miles between 29 and 12. There are some awful steep hills running about three to four hills per mile." In this eight mile stretch there are eight roads intersecting this graveled road, "all blind intersections, that is, they meet on top of a hill. A quarter of a mile east of where this gravel road intersects or dead ends with Highway No. 12, there is a hill."
After defendant told plaintiff he knew the road, he "just took off" on the graveled road at a speed of 60 or 65 miles per hour. It was a cloudy night. When they had traveled several miles plaintiff "noticed he *695 was pushing it harder and I was starting to get pretty scared." At the bottom of a hill they came to a bridge which "the car really weaved over." "I was so scared I didn't know what to do. I * * * noticed the speedometer said 85. So I said to Wendell, `We had better slow down a little bit. The way we are riding it is like going on a rollie coaster.' He just laughed and said, `I know how to drive this car, * * * and I don't care if I do drive the heck out of it.' By that time I was really scared and he didn't slow down a bit, so I felt the best thing to do was to be quiet, not to say anything, because it wouldn't do no good." Plaintiff testified defendant did not slow down as he crossed the various blind intersections where there were no stop signs. On this point defendant testified, "Well, I'd say some that I seen in time that I did, yes." They came to the second stop sign, 1.6 miles from the place of the accident. Defendant slammed on his brakes, threw the car into second gear and went right on across. Plaintiff said they should have stopped. Defendant answered, "`Yeah, I guess so,' and just took right off and kept right on going. After that point the road was still hilly." "Well, I was scared. I didn't know what to do."
As they started down the west slope of the last hill, a quarter of a mile from Highway 12, "I shut my eyes because I didn't know what to do." "I opened them up and there was the blacktop (Highway 12) right ahead of us. * * * I knew the car was going at a fast rate of speed." Defendant testified he applied the brakes to the automobile 100 feet east of the stop sign. This stop sign was 62 feet east of the west shoulder of the highway. The majority opinion states the car skidded 162 feet to the west shoulder of the highway. However, after it reached the shoulder of the highway it plunged into the ditch, rolled over and stopped right side up 50 to 75 feet south of the intersection. Defendant testified, "Ronald and I both flew out of the car through the (right) door on Ronald's side." Plaintiff's slipper type shoes and his jacket were torn from his body. He suffered serious injuries.
I. In its statement of facts the majority opinion sets out what it states is: "The only testimony given by the plaintiff relative to the movement of the car after it passed the bridge." Reference has already been made to the testimony of both parties that defendant did not reduce the speed of the car as it crossed blind intersections with crossroads. There was also the following testimony of plaintiff on cross-examination, already referred to herein. "For the quarter of a mile from the top of the hill until just before we got to No. 12 my eyes were closed. Q. And you weren't paying any attention to how the car was going or what was being done in the car? A. I knew the car was going at a fast rate of speed. * * * We skidded way across Highway No. 12."
The statement in the majority opinion that it had set out, "The only testimony" of plaintiff "relative to the movement of the car after it passed the bridge," overlooks the testimony just quoted. The majority opinion is based in part upon its assumption that there was no testimony save that of defendant, concerning the movement of the car immediately prior to the accident. Plaintiff's testimony that it was then going at a fast rate of speed is contrary to this assumption.
II. Two witnesses testified they traveled in an automobile over the road in question at night when the conditions of the road, light and weather were the same as at the time of the accident. It will be remembered an automobile traveling west on the graveled road comes over the crest of a hill a quarter of a mile east of the dead end. One witness testified:
"As you come over the hill your lights come right down onto the black-top. There is a big black post and a long embankment and a stop sign, but you can't read the stop sign until you get halfway down the hill when your *696 lights come back up. You could see the telephone pole and embankment and the road at the top of the hill. As you get down the slope your car levels off and you can see the whole road, stop sign and all. As you go down the hill you cannot see the dead end or embankment for a second or two, but after you get down to the bottom of the hill and level out, the embankment, telephone pole and black-top road and stop sign become visible. Last night I measured the distance from the bottom of the hill at which you could see these objects, the embankment, stop sign, and so forth.
"Q.there is a point there at which your lights can shine down and your lights don't shine out onto the stop sign and on this road embankment, is that right, sir? A. Yes. Within about 1200 feet she comes back up and you can see everything."
The other witness testified:
"The car was being driven at a speed of about fifty. * * * You could see the light on the sign when you came over the hill. Then as you go down the hill, you couldn't see. When you got to the foot, you could see it again then plain, the stop sign. * * * 420 feet back."
According to this testimony the big black post, long embankment and stop sign at the dead end, at night become visible to the driver of an approaching automobile at the top of the hill one quarter mile east of the dead end, are lost to view for a short distance, but come into full view at a distance of 1,200 feet and are very plain from the bottom of the hill about 420 feet east of the stop sign. The majority opinion entirely overlooks the testimony of these two witnesses and proceeds on the theory there is no such evidence.
Defendant testified: "after I leveled out my lights would shine on that stop sign. (420 feet distant) * * * I'd say I was about 100 feet from the stop sign when I first saw it."
Nevertheless, the majority opinion views the testimony upon this phase of the case in the light most favorable to defendant, stating in Division III: "In the present case there is undenied evidence the defendant driver, as soon as he observed the stop sign at the Highway 12 T intersection put on the brakes of his car. It was then one hundred feet from the stop sign." Of course, no witness could deny defendant's testimony that he applied the brakes as soon as he observed the stop sign or that he first saw it when it was 100 feet distant. However, the jury was not required to believe that testimony.
In Anderson v. Elliott, 244 Iowa 670, 676, 57 N.W.2d 792, 795, the court, in disposing of a similar matter, stated: "There is of course no one except Elliott who knows his real intention, but we think the jury was not bound to accept his version."
There is a rule, too well established to require the citation of authorities, that, under conditions comparable to those here shown, one may not be heard to say he did not see that which was in plain sight before him. Hence, the majority statement, that the evidence was "undenied" that defendant put on the brakes as soon as he saw the stop sign, is incorrect from a legal standpoint. The testimony of other witnesses was sufficient to support a finding by the jury that defendant saw the dead end which his car was approaching, when he was one fourth mile east thereof, that he saw it again plainly when he was 1,200 feet east thereof and thereafter until his car sped past it, and that the letters on the stop sign were plainly visible to defendant when he reached the foot of the hill 420 feet east of such stop sign.
III. Division IV of the majority opinion quotes at length from the testimony of defendant, which it views in the light most favorable to defendant, and concludes *697 the record establishes that defendant who knew he was approaching the T intersection, did not know just where it was.
Defendant testified he thought there was a dead end ahead and was looking for a dead end sign. However, the jury was not required to believe his story that he was driving at a reduced speed and keeping a conscious lookout for such a highway sign. If he were keeping such lookout his failure to see the stop sign and intersection until long after these had come into his view would be difficult to understand. The jury had the right to believe plaintiff's testimony that after defendant "ran" the stop sign at the crossroad 1.6 miles east of the T intersection he "took right off and kept right on going" and as he approached the T intersection "the car was going at a fast rate of speed." The weight to be given this testimony was for the jury to determine and this court may not properly pass upon it.
IV. In Division III the majority opinion states that as soon as defendant saw the stop sign at the T intersection he put on the brakes and, as the car skidded 100 feet into the intersection, he tried to turn to the left to avoid the telephone pole and embankment. The opinion then appears to hold "there is no evidence the driver did not do everything in his power to avoid the accident" and hence no "inference could be drawn that the operation of the vehicle was reckless."
That proposition was considered in the much cited case of Mescher v. Brogan, 223 Iowa 573, 578, 272 N.W. 645, 648, in which the driver was operating the automobile over a wide, well settled, graveled highway with which he was unfamiliar at a speed of 65 miles per hour at night and was unable to negotiate a turn.
"There is nothing in the testimony to indicate that the driver did not exercise all the care possible to avoid injury after he discovered the corner or turn in the road. In other words, there is no evidence of recklessness, or even want of care, in the operation of the car from the moment the defendant discovered that he could not make the turn in safety. The recklessness, if any, consists in the high rate of speed at night with visibility limited, coupled with his apparent attitude of indifference to consequences and to the rights of the other occupants of the car, most of whom, according to the evidence, were plainly indicating that they were frightened at the speed he was traveling at night over a graveled highway, which was not marked, when the driver knew, or in the exercise of ordinary care should have known, that he might come upon a turn or sudden curve in the road. We think the evidence presents a case, not of one driving in the face of apparent danger, but a danger reasonably to be anticipated by a person exercising ordinary prudence and caution under the circumstances, and that under all the facts and circumstances, it was for the jury to determine, and not a case presenting facts upon which minds of reasonable men might not differ as to whether the conduct of the defendant came within the definition of `recklessness,' as defined by this court, as hereinbefore set forth."
Moreover the case at bar is stronger than Mescher v. Brogan, supra, in which the driver was not familiar with the road and the turn was not marked, in that here the evidence was sufficient to support a finding of fact that defendant was familiar with the dead end intersection, which was marked by a stop sign, was looking for it and saw it a quarter of a mile before he drove through it and that he did not attempt to slacken the speed of his car until (according to his testimony) it was only 100 feet from the stop sign and, according to plaintiff's testimony, not until the intersection was "right ahead of us."
V. Division II of the majority opinion refers to a statement by plaintiff, "Wendell, *698 we should have stopped at this stop sign." and the answer, "Yeah, I guess so." The majority opinion then states: "We do not believe the statement of the plaintiff can be interpreted as amounting to a protest or a complaint relative to an excessive rate of speed. Neither can we interpret the reply of the defendant driver as indicating a mental attitude of indifference to and a complete disregard for consequences." Here, again, the majority selects a part of the record only, and finds that this statement did not "amounting to a protest or a complaint relative to an excessive rate of speed," and that the reply did not indicate "a mental attitude of indifference to and a complete disregard for the consequences."
If such a finding had been proper and was deemed necessary to bolster the majority opinion, it should have been based upon all pertinent statements of the parties, shown in the record. Obviously, the consideration of only one statement and one answer would not be sufficient. However, when the whole record is considered, it clearly appears that plaintiff was protesting and complaining about the excessive rate of speed at which defendant was driving.
I quote from plaintiff's cross-examination:
"Q. But you were complaining about his speed. A. Yes. * * *.
"Q. And the only objectionthe only protest that you say you made was about the speed he was driving? A. Yes, and at the time he got a little too far over on the shoulder and it started to weave.
"Q. And you protested and told him about that, did you? A. Yes."
Plaintiff had already testified on direct examination:
"I * * * noticed the speedometer said 85. So I said to Wendell, `We had better slow down a little bit. The way we are riding it is like going on a rollie coaster.' He just laughed and said, `I know how to drive this car, * * * and I don't care if I do drive the heck out of it.' * * * He didn't slow down a bit."
Plaintiff's testimony that he protested and complained about the speed of 85 miles per hour was sufficient to support a finding of the jury to that effect. It was not necessary that his testimony concerning such protests or complaints be corroborated. In other words, testimony of a person that he protested and complained about speed is some evidence he protested and complained about speed. The holding by the majority opinion is tantamount to a finding this testimony of plaintiff was not worthy of belief and was entitled to no weight. There is no basis for such holding. Moreover, such holding is a usurpation of the function of the jury.
What has just been said is applicable also to the finding of fact by the majority opinion that defendant's laughter and reply did not indicate a mental attitude of indifference to and a complete disregard for consequences. This finding exemplifies the method employed by the majority of deciding the appeal upon fragments of the record deemed favorable to defendant. Whether there was evidence of "a mental attitude of indifference", etc., need not depend wholly upon what defendant said. In determining such attitude the jury properly could have considered also his wild, eight mile race in the darkness, along this graveled road, up and down very steep hills, through blind intersections at 85 miles per hour, and through stop signs, plus his failure to safely approach the dead end intersection for which he testified he was consciously looking, and which was visible a quarter of a mile away.
The procedure adopted by the majority in singling out and disposing separately of various propositions is not proper in a guest case involving recklessness. Such cases are usually based upon proof of a combination of circumstances regarded as *699 sufficient to show recklessness. Plaintiff is entitled to have all the pertinent acts and conduct of defendant considered together rather than piecemeal as the majority opinion has done. In the language of Hahn v. Strubel, 243 Iowa 438, 446, 448, 52 N.W.2d 28, 33,
"We must consider the whole affair as it happened that night.
* * * * * *
"While it may be assumed that standing alone single instances above set forth would not necessarily constitute recklessness, yet we think that when taken as a whole they fit into a pattern which would justify a finding that the defendant at the time in question was reckless within the meaning of the guest statute. Under the record we hold that it was for the jury to pass upon the question as to whether or not defendant was reckless as alleged by plaintiff."
VI. In Division IV the majority opinion states: "we should determine whether the defendant driver * * * had actual knowledge of an existing danger * * * and then proceeded `* * * without any heed or concern for the consequences.'" Again the majority would usurp the function of the jury. The question is not what we should determine. It is whether there was substantial evidence to support findings by the jury. Without conceding that the majority correctly states the proposition which the finder of facts should determine, I will say that here there was substantial evidence that the defendant driver had actual knowledge of the so-called existing danger, he testified he knew of it and was looking for it, and the evidence would support a finding that he saw it when he was a quarter of a mile distant and that thereupon he proceeded without any heed or concern for the consequences. In the language of Claussen v. Johnson's Estate, 224 Iowa 990, 998, 278 N.W. 297, 301: "The degree of visibility of the trailer (struck by defendant's automobile), as shown by the evidence, was such that it was a jury question as to when it must have been seen by Johnson, if he was looking ahead."
Following the statement concerning what "we should determine" the majority opinion concedes there is testimony by plaintiff that defendant had been over this road before. It will be observed the majority does not go as far as to concede there was evidence defendant had driven over the road. Apparently the majority is unwilling to consider this part of plaintiff's testimony. Upon this point, it next states: "The defendant testified he had not driven over the road but had ridden over it a couple of nights before."
After this statement the majority opinion quotes at length defendant's story that he slowed down to 45 miles per hour, thought there was a dead end ahead and was looking for a dead end sign. It does not consider nor mention plaintiff's testimony that after running the stop sign 1.6 miles away defendant "took right off and kept right on going" and that "the car was going at a fast rate of speed when it came to the dead end." The majority opinion states also: "There is no other evidence of Wendell's knowledge relative to the `dead end' intersection." Again I point to the evidence from which the jury could properly have found he saw it a quarter of a mile away.
The majority opinion next states:
"We have held that where the driver does not have conscious knowledge that a road ends at a T intersection one is not guilty of recklessness in not observing the character of the intersection."
Without agreeing with that statement I will say one answer to it is that the testimony of both parties shows defendant did "have conscious knowledge" that the road ended at this T intersection. However, the majority opinion next states defendant "did not know just where it *700 was." One answer to this reasoning is that the jury could have found defendant did know its location. Another is it was visible to defendant for a quarter of a mile and the evidence was sufficient to support a finding of the jury that defendant observed it a quarter of a mile ahead.
Defendant testified that when his car reached the bottom of the hill, which the evidence shows was about 420 feet distant, his lights shone on the stop sign. In defendant's own words: "There was a stop sign at Highway No. 12. I saw that stop sign that night. As I came down that incline my lights did not shine on that stop sign. After I leveled out my lights would shine on that stop sign."
"On the night of the accident I'd say I was about 100 feet from the stop sign when I first saw it, and I tried my best to stop the car." Defendant does not explain what he did during the time his car was traveling between the place where he testified his car "leveled out" and his lights shone on the stop sign and the place 320 feet nearer the stop sign where he testified he first tried to stop his car.
The majority opinion next makes a finding of fact. "When he did observe the stop sign and road he put on the brakes and sought to turn the car and avoid hitting the embankment across the road." This is based on defendant's testimony only. There is much evidence to the contrary. It is followed by this pronouncement and finding of fact. "It is our considered conclusion the defendant driver did everything he could to avoid the accident and that he did not proceed `without any heed or concern for the consequences.'" This conclusion usurps the function of the jury whose finding to the contrary is supported by the great weight of the evidence.
After citing several authorities, none of which is in point factually the majority opinion continues its finding of fact, as follows:
"In the present case the brakes were put on approximately 162 feet from the ditch. It may be true the driver then tried to straighten up the car when it began to skid but he was endeavoring to control and stop it. He also endeavored to turn it to the left."
The majority opinion next makes another finding which is necessarily based upon defendant's testimony, considered in the light most favorable to defendant. "All these acts, it is our conclusion, do not indicate a lack or unconcern for consequences." This is followed by the citation of several cases, none of which is factually in point.
The majority opinion next states: "It is when a driver has conscious knowledge of a dangerous situation and then does not exercise the slightest care to avoid injury to his guest that recklessness is shown." The majority opinion next cites several authorities, none of which is factually in point. Following this the majority makes a finding of fact. "Such is not the situation in the present case."
Division V of the majority opinion consists of a finding of fact seasoned with a legal quotation.
"Upon a review of the evidence heretofore set out, as well as all the evidence disclosed by the record we are unable to conclude `* * * the consequences of the action of the driver are such that the occurrence of the catastrophe is a probability rather than a possibility'.
"There is nothing to indicate the action of the driver, in the light of what he endeavored to do, showed there was a probability of a catastrophe rather than a possibility."
What the majority refers to as the evidence heretofore set out is largely defendant's story of the accident. The evidence, not set out by the majority, includes, in part, the testimony of plaintiff that the car was going at a fast rate of speed and that defendant did not "hit his brakes" until "there was the black-top right ahead *701 of us." Another part of the evidence not at any place set out or even mentioned by the majority opinion is the testimony referred to in Division II of this dissent. To the testimony there set out may be added: "As you come over the hill your lights come down and it shows right on No. 12. You can see a low embankment and you can see black posts. As you see it you can read it. As you come down within about 410 feet you can see the whole road and you can read the whole stop sign. In the daytime you can see everything. At night because of the fact that you are going down hill there is a point at which your lights can shine down and your lights don't shine out onto the stop sign and on this road embankment." The testimony immediately following the foregoing is set out in Division II hereof, and is in part:
"Qthere is a point there at which * * * your lights don't shine out onto the stop sign and on this road embankment, is that right, sir? A. Yes. Within about 1200 feet she comes back up and you can see everything."
The jury could have found defendant deliberately "ran" this stop sign, with same mental attitude as that exhibited when he "ran" the last previous stop sign, 1.6 miles to the east.
Were it proper for me to pass upon the facts of this case, as the majority has done, I would not be inclined to agree with the holding of the majority that there is no probability of a catastrophe when an automobile "runs" a stop sign at a T intersection at "a fast rate of speed."
VII. I have pointed to some of the various findings of fact by the majority and have stated such procedure was improper. Objections to this procedure should not have been summarily brushed off by the majority. Whiting v. Stephas, 247 Iowa 473, 477, 74 N.W.2d 228, 230, 231, states:
"The question is not for us to decide as to the matter of whether or not there was recklessness involved. That is a question for the jury. However, it is the responsibility of a trial court, and now of this Court, to decide whether or not the evidence is so substantial that such question should be submitted to the jury. From the circumstances, and the physical facts and other supporting evidence heretofore outlined, a jury could find speed. Adding to this the many attendant circumstances, also heretofore shown, they could find recklessness. We hold there is sufficient evidence for submission to the jury."
Headnote 2 of the cited case in the Northwestern Reporter states:
"On appeal by guest from judgment sustaining a directed verdict * * * in action under the automobile guest statute for injuries, it was not for the Supreme Court to decide whether or not there was recklessness within meaning of the statute, since that was a question for the jury, but it was the responsibility of the Supreme Court to decide whether or not the evidence was so substantial that the question should have been submitted to the jury."
The majority should not have changed this rule of law without overruling this part of Whiting v. Stephas and the many other decisions cited under the Key number.
Hahn v. Strubel, 243 Iowa 438, 446, 52 N.W.2d 28, 32, supra, an automobile guest case, states: "It is for the jury and not for the court to draw inferences from the evidence shown. Olson v. Southern Surety Co., 201 Iowa 1334, 208 N.W. 213. See also Russell v. Turner, 8 Cir., 148 F.2d 562."
VIII. I have stated that none of the decisions cited by the majority is in point factually. None of them involves injuries *702 to a guest in an automobile resulting from the running at a fast rate of speed, of a stop sign at a T intersection, with which intersection the driver is familiar, and for which stop sign and intersection he is consciously keeping a lookout, and which intersection and stop sign are visible to the driver at a distance of one fourth mile and thereafter continuously from a distance of 1,200 feet to the intersection.
Other circumstances shown in the case at bar are the wild night drive for eight miles by the seventeen year old defendant, up and down the "awful steep hills" traversed by the gravel road, at 85 miles per hour, through blind intersections and through stop signs, and over plaintiff's protests, at which defendant laughed and which he disregarded.
Crowell v. Demo, 231 Iowa 228, 1 N.W.2d 93, in which a judgment for the guest was affirmed, involved high speed at night on a graveled road over protests of the guest. The car struck a tree which had blown down and which blocked the road. Among other similar decisions are: Anderson v. Elliott, 244 Iowa 670, 57 N.W.2d 792, supra; Mescher v. Brogan, 223 Iowa 573, 272 N.W. 645, supra; Thornbury v. Maley, 242 Iowa 70, 45 N.W.2d 576; Hahn v. Strubel, 243 Iowa 438, 52 N.W.2d 28, supra.
None of these cited authorities appears to be as strong as the case for this plaintiff, if the parts of the record favorable to plaintiff be considered.
In Whiting v. Stephas, 247 Iowa 473, 74 N.W.2d 228, supra, there is a good discussion of pertinent decisions of this court. It quotes with approval a statement from Hahn v. Struble, supra. Plaintiff "was then a beneficiary of the rule that the evidence must be viewed in the light most favorable to her. Likewise she was entitled to every legitimate inference from the facts shown. In addition she was to have taken as established every fact which her evidence fairly tended to prove. * * * In addition she would be entitled `to the benefit of all the facts which the evidence offered by him tends to prove, giving them the most favorable construction of which they are fairly susceptible in support of his claim.' Thompson v. Cudahy Packing Co., 171 Iowa 579, 151 N.W. 470, 471."
Whiting v. Stephas refers also to Anderson v. Elliott, 244 Iowa 670, 57 N.W.2d 792, stating: "There is evidence of speed together with road signs and when defendant attempted to go around the curve his car left the pavement and ran into a rather deep depression between the roads, and the guest was killed."
The Whiting case cites Thornbury v. Maley, 242 Iowa 70, 45 N.W.2d 576, and states with reference to the driver in that case: "He came to a sharp curve in the road where there was a road sign indicating a turn. However, his automobile failed to make the turn and left the highway * * * and the driver and plaintiff's intestate were killed. * * * In the case under consideration (Whiting v. Stephas) the question of whether or not the jury decides as to excessive speed depends upon circumstances and physical facts, and such other evidence as is shown in the record. The circumstance of road signs is present in both cases, except in this case there were more road signs than in the above cited case."
Whiting v. Stephas continues: "* * * Hart v. Hinkley, 215 Iowa 915, 247 N.W. 258, is a case somewhat similar to this case. * * * The turn started before arriving at the bridge and then again turned after leaving the bridge. The driver had crossed the bridge and failed to make the second turn, driving into a ditch and plaintiff's intestate was killed. Speed and roadway circumstances were involved in said case. * * * The court made some significant statements * * * which have a bearing on this (Whiting) case, as follows: `Something more is shown in this case than mere speed. Seventy miles per hour in the nighttime upon a gravel highway would be more or less hazardous at the best. When considered in the light of the surroundings and circumstances *703 shown in this case, we think the evidence quite sufficient to sustain the verdict against the driver of the automobile. * * * It is obvious from the testimony that the driver of the automobile lost control thereof because the speed at which he was driving was so great that he was unable to maintain control of the car and guide it across the bridge and make the necessary turn to the left. It may be that the speed of the car was less than seventy miles per hour, but when considered in light of the facts and circumstances, was so great as to constitute reckless operation within the meaning of the statute.'"
Whiting v. Stephas, 247 Iowa 473, 74 N.W.2d 228, supra, which has been referred to herein and quoted from at some length, was written recently by a member of this court who now concurs in the majority opinion, and was concurred in by all other members of the court. The legal propositions approved and followed in that case and decisions therein cited are repudiated by the majority in the case at bar. The majority has the power to do this but it has not the power to make the various findings of fact upon which it bases its conclusion. Article 5, Section 4, Constitution of Iowa, I.C.A.; Section 624.2, Code of Iowa 1958 I.C.A.; R.C.P. 334. Of equal or greater importance are the various errors of fact in the majority opinion many of which have been pointed out hereinbefore.
IX. Since this dissent was circulated the majority has added a Division to its opinion, in which it states: "In the light of the comment in the dissenting opinion relative to speed it can again be stated there is no reference to the probable speed of the car just before the accident except as previously stated." (Italics supplied.) That is not quite correct. In its preliminary statement the majority opinion states: "The only testimony given by the plaintiff relative to the movement of the car after it passed the bridge is as follows:" (Italics supplied.)
However, the majority opinion overlooked plaintiff's testimony, "I knew the car was going a fast rate of speed." until the dissent quoted it. Some indication of this speed is furnished by defendant's testimony. "Q. Did you think that you could make the turn in safety? A. I thought I had a chance, maybe, of making it."
In the face of this and other evidence the jury was not required to believe defendant's story that he was driving at a rate of only 45 miles per hour and was unable to make the turn 162 feet after he applied the brakes of the car.
GARFIELD, C. J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263971/ | 33 Cal.App.4th 634 (1995)
39 Cal. Rptr.2d 384
JEFFREY SCOTT GANANIAN, Plaintiff and Respondent,
v.
FRANK S. ZOLIN, as Director, etc., Defendant and Appellant.
Docket No. A061141.
Court of Appeals of California, First District, Division Three.
March 28, 1995.
*636 COUNSEL
Daniel E. Lungren, Attorney General, Henry G. Ullerich, Assistant Attorney General, William S. Clark, Jose R. Guerrero and S. Michele Inan, Deputy Attorneys General, for Defendant and Appellant.
John Halley for Plaintiff and Respondent.
OPINION
CHIN, P.J.
Frank S. Zolin, as Director of the Department of Motor Vehicles (DMV), appeals from a judgment granting respondent Jeffrey Scott Gananian's petition for writ of mandamus. The writ directs the DMV to set aside its suspension of Gananian's driving privilege for driving with an illegal blood-alcohol concentration (BAC). The DMV contends that substantial evidence does not support the trial court's decision. We agree. Therefore, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of October 10, 1992, California Highway Patrol Officer Jeffrey T. Cobb arrested Gananian for driving under the influence of alcohol *637 in violation of Vehicle Code section 23152.[1] Cobb then administered two breath tests to determine Gananian's BAC. The first test showed a BAC of 0.14 percent, and the second showed a BAC of 0.13 percent. Based on these results and pursuant to section 13353.2, Cobb issued an administrative per se order suspending Gananian's driving privilege, effective 45 days from the date of the order.
Gananian requested a formal administrative hearing to review the suspension. At the hearing, the DMV relied exclusively on documentary evidence to support the suspension, including the sworn report that Cobb submitted under section 23158.2,[2] his arrest report, the report of the results from the breath tests that he administered, and the police report of San Mateo County Deputy Sheriff Jerry Grochowski, who participated in Gananian's detention and arrest. According to Cobb's sworn report, Grochowski observed Gananian driving at 80 to 100 miles per hour, weaving from side to side, and swerving into the oncoming traffic lane over solid double yellow traffic lines. Cobb did not see Gananian driving. The sworn report also indicated that Gananian had bloodshot/watery eyes, the odor of alcohol, an unsteady gait, and slurred speech, and that he failed field sobriety tests. Similarly, the unsworn reports of Cobb and Grochowski indicated that Grochowski observed Gananian driving and stopped him, and that Cobb later appeared and administered the field sobriety tests before arresting Gananian.
Gananian presented no evidence to rebut the DMV's case. Instead, he made evidentiary objections to most of the DMV's documentary presentation. Specifically, he raised a hearsay objection to Cobb's sworn report, arguing in part that it was inadmissible insofar as it did not report Cobb's personal observations, but reported Grochowski's observation of Gananian's driving. He raised a similar objection to Cobb's unsworn arrest report. He also asserted that the unsworn report was inadmissible because the DMV failed to lay a proper foundation for it as a business or official record, and because it was not in the correct form for use in DMV hearings. Gananian asserted similar objections in challenging the admissibility of Grochowski's unsworn police report. Based on these objections, Gananian argued that the DMV failed to offer admissible evidence to sustain its burden of proving that he was driving the car. The hearing officer overruled all of Gananian's objections and affirmed the suspension.
Gananian then filed a petition for writ of mandamus in the superior court, in which he asserted that the DMV had suspended his driving privilege *638 "without any lawful authority so to do." In his supporting memorandum, Gananian reasserted his evidentiary objections to the DMV's documentary evidence, arguing in part that the hearing officer had erroneously admitted the two unsworn police reports and the sworn report as proof that he was driving. At the hearing on the petition, the superior court agreed, finding that the unsworn reports were inadmissible under the Vehicle Code and that the evidence was otherwise insufficient to sustain the suspension. The superior court subsequently issued a judgment finding that the DMV failed to sustain its burden of proof and directing issuance of a writ of mandate commanding the DMV to set aside Gananian's suspension. The DMV then filed this timely appeal.
DISCUSSION
(1) "The trial court's task in this case was to determine, using its independent judgment, whether the weight of the evidence supported the administrative decision. [Citation.]" (Yordamlis v. Zolin (1992) 11 Cal. App.4th 655, 659 [14 Cal. Rptr.2d 225].) In making that determination, the trial court had to "weigh the evidence and make its own determination as to whether the administrative findings [were] sustained." (Petrucci v. Board of Medical Examiners (1975) 45 Cal. App.3d 83, 87 [117 Cal. Rptr. 735].) Our task on appeal is to "review the record to determine whether the trial court's findings are supported by substantial evidence. [Citations.]" (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10 [93 Cal. Rptr. 234, 481 P.2d 242].) "We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court's decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court's. [Citation.] We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]" (Yordamlis v. Zolin, supra, 11 Cal. App.4th at p. 659.)
(2a) To justify suspension of Gananian's driving privilege, it is the DMV's burden to prove that Cobb had reasonable cause to believe that Gananian was driving in violation of section 23152 or 23153, that he lawfully arrested Gananian, and that Gananian was driving with a BAC of at least .08 percent. (Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536 [189 Cal. Rptr. 512, 658 P.2d 1313]; Santos v. Department of Motor Vehicles (1992) 5 Cal. App.4th 537, 544-545 [7 Cal. Rptr.2d 10].) In meeting its burden, the DMV may use hearsay evidence "... for the purpose of supplementing or explaining other evidence...." (Gov. Code, § 11513, subd. (c).) However, hearsay evidence is not "... sufficient in itself to support a finding unless it would be admissible over objection in civil *639 actions...." (Gov. Code, § 11513, subd. (c); see also Daniels v. Department of Motor Vehicles, supra, 33 Cal.3d at p. 538.)
In challenging the DMV's evidentiary showing, Gananian argues only that the "record contains no evidence sufficient over objection" to establish that he "was in fact driving...." The DMV asserts that it established this fact by submitting Grochowski's unsworn police report and Cobb's sworn report, both of which indicate that Grochowski observed Gananian driving. The DMV contends that these documents would be admissible in a civil action under the public employee records exception to the hearsay rule (Evid. Code, § 1280), and are therefore sufficient to establish the fact of driving. Gananian responds that section 23158.2 prohibits the DMV from relying on Grochowski's unsworn police report, even if it otherwise qualifies as a public employee record. Regarding Cobb's sworn report, Gananian concedes that courts have found similar reports admissible under Evidence Code section 1280 as public employee records and sufficient to justify suspension. (See, e.g., Snelgrove v. Department of Motor Vehicles (1987) 194 Cal. App.3d 1364, 1369-1375 [240 Cal. Rptr. 281]; Fisk v. Department of Motor Vehicles (1981) 127 Cal. App.3d 72, 76-79 [179 Cal. Rptr. 379, 31 A.L.R.4th 905].) However, he contends that "such a report is not admissible under the official records exception ... as to any assertions not based on the personal knowledge of the officer who prepared it. [Citations.]" (Original italics.) Accordingly, Cobb's sworn report does not qualify under the exception insofar as it relates Grochowski's observation of the driving.
We agree with the DMV that Cobb's sworn report qualifies under Evidence Code section 1280 as an admissible public employee record even to the extent that it reports Grochowski's personal observations, and thus is sufficient alone to prove that Gananian was driving. (3) Evidence Code section 1280 makes admissible a writing that records an act, condition, or event if "(a) [t]he writing was made by and within the scope of duty of a public employee; [¶] (b) [t]he writing was made at or near the time of the act, condition, or event; and [¶] (c) [t]he sources of information and method and time of preparation were such as to indicate its trustworthiness." The object of this hearsay exception "is to eliminate the calling of each witness involved in preparation of the record and substitute the record of the transaction instead. [Citations.]" (County of Sonoma v. Grant W. (1986) 187 Cal. App.3d 1439, 1451 [232 Cal. Rptr. 471].)[3] Accordingly, for the exception to apply, "[i]t is not necessary that the person making the entry have *640 personal knowledge of the transaction. [Citations.]" (Loper v. Morrison (1944) 23 Cal.2d 600, 609 [145 P.2d 1].) Assuming satisfaction of the exception's other requirements, "[t]he trustworthiness requirement ... is established by a showing that the written report is based upon the observations of public employees who have a duty to observe the facts and report and record them correctly."[4] (People v. Baeske (1976) 58 Cal. App.3d 775, 780 [130 Cal. Rptr. 35], original italics.)
In Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114 [52 Cal. Rptr. 561, 416 P.2d 793], the Supreme Court discussed application of these principles to information in police records. In Taylor, plaintiff, who sued for personal injuries in connection with an assault at a bowling alley, unsuccessfully sought to have police officers testify from police records regarding other disturbances at the bowling alley. (Id. at pp. 117-119.) Addressing the admissibility of this testimony, the court explained: "In a proper case the business records exemption to the hearsay rule is applicable to public documents, such as police reports. [Citations.] The problem arises, however, because business records are not admissible under this exception when they are `not based upon the report of an informant having the business duty to observe and report.' [Citations.] The admissibility of the instant report, therefore, depends first upon whether its contents are based on [the testifying officer's] own observations, or the observations of other police officers or public officials whose job it is to know the facts recorded; if so, but only if so, is it then admissible under the business records exception. [Citations.]" (Id. at p. 126, italics added.)
(2b) Following Taylor, we find that Cobb's sworn report was admissible under Evidence Code section 1280 as proof that Grochowski observed *641 Gananian driving. In reporting his personal observations to Cobb, Grochowski was acting pursuant to his duty as a police officer to observe the facts and report them correctly. Accordingly, Cobb's sworn report qualified as an admissible public employee record even to the extent that it reported Grochowski's observations. It constituted adequate proof that Gananian was, in fact, driving. Gananian offered no contrary evidence. Nor did he offer any evidence to suggest that Grochowski did not perform his duty. Accordingly, the record does not support the trial court's decision.[5]
In support of the trial court's decision, Gananian cites a series of recent license suspension cases that reached a seemingly contrary conclusion regarding the requirement of personal knowledge. The lead case is Imachi v. Department of Motor Vehicles (1992) 2 Cal. App.4th 809 [3 Cal. Rptr.2d 478]. There, the DMV relied on a supplemental sworn statement in which a police officer reported blood test results and declared "that he had reviewed the chemical test results and that the information on the form was true and correct." (Id. at p. 812.) The court held that the supplemental statement was inadmissible to the extent that it reported the test results because the test was "not performed by the officer" and the results were "not within [his] personal knowledge." (Id. at p. 816.) The court explained: "The problem ... is that the blood test results were put in evidence only through the hearsay statement of the officer. While the statement is admissible as a public employee record to the extent it reports the officer's firsthand observations (Snelgrove, supra, 194 Cal. App.3d [at p.] 1375; Fisk, supra, 127 Cal. App.3d at p. 77), the hearsay within the statement could not be the sole basis for suspension of [the] driver's license. (Gov. Code, § 11513; see Daniels, supra, 33 Cal.3d at p. 538.)" (Imachi v. Department of Motor Vehicles, supra, 2 Cal. App.4th at p. 817, fn. omitted.)
For several reasons, we choose not to follow Imachi insofar as it suggests that the public employee records exception applies only if the person making the record has personal knowledge of the recorded facts. First, there is no mention in Imachi of the cases, such as Taylor, that expressly declare to the contrary. Second, we do not believe that the decisions on which Imachi relies support the narrow rule that Imachi appears to announce. Citing Snelgrove v. Department of Motor Vehicles, supra, 194 Cal. App.3d 1364, and Fisk v. Department of Motor Vehicles, supra, 127 Cal. App.3d 72, the court in Imachi stated: "The conclusion of these cases that the officer's statement falls within the public employee records exception to the hearsay rule was premised on the fact that the officer's report was based on firsthand observations. [Citations.]" (Imachi v. Department of Motor Vehicles, supra, 2 *642 Cal. App.4th at pp. 815-816.) Although this statement is accurate, neither Snelgrove nor Fisk suggests that sworn reports qualify as public employee records only if they contain the reporting officer's firsthand observations. In Snelgrove, the court found that a sworn statement was an admissible public record, noting that "[t]he source of information firsthand observations by the officer indicates trustworthiness [citation], and the only hearsay items within the statement are Snelgrove's own admissions [citations]." (Snelgrove v. Department of Motor Vehicles, supra, 194 Cal. App.3d at p. 1375.) Similarly, in Fisk, the court found that the source of information in a sworn statement was trustworthy for purposes of the hearsay exception "since the writing consisted of a report of firsthand observations by the arresting officer." (Fisk v. Department of Motor Vehicles, supra, 127 Cal. App.3d at p. 77.) In each case, the court simply determined the exception's applicability based on the facts at issue, i.e., that the source of information was the reporting officer's firsthand observations. Neither stated a rule applicable to a different set of facts, and neither establishes that personal knowledge is a prerequisite to application of the public employee records exception.[6] For these reasons, we do not find Imachi determinative of the issue before us.
Nor do we find Gananian's citation to Burge v. Department of Motor Vehicles (1992) 5 Cal. App.4th 384 [7 Cal. Rptr.2d 5] persuasive. There, the court, in generally discussing the applicable principles, stated: "Public employee business records... are admissible in civil actions only to the extent that they report the employee's firsthand knowledge. [Sworn] statements, therefore, may form the sole basis for suspension of a driver's license only if made from firsthand observation. [Citation.]" (Id. at p. 389.) As authority for this proposition, the court relied exclusively on Imachi. Moreover, since the documentary evidence in Burge only reported firsthand observations (id. at pp. 389-390), the court's statement is dictum to the extent it purports to address the adequacy of documents that do not. For these reasons, we choose not to follow Burge.
*643 For similar reasons, we choose not to follow the other cases Gananian cites. In Santos v. Department of Motor Vehicles, supra, 5 Cal. App.4th at pages 546-547, the same appellate panel that decided Imachi simply relied on its prior opinion in holding that a test report from the laboratory that performed the test was admissible as a public employee record.[7] In Wilson v. Zolin (1992) 9 Cal. App.4th 1104, 1106-1107 [11 Cal. Rptr.2d 870], the court cited Imachi`s statement regarding the necessity of personal knowledge only as a point of distinction because the documentary evidence in Wilson was a firsthand account of test results. The court therefore had no occasion to examine Imachi`s analysis. In Davenport v. Department of Motor Vehicles (1992) 6 Cal. App.4th 133, 141, footnote 3 [7 Cal. Rptr.2d 818], the court discussed Imachi's conclusion that test "results are admissible over a hearsay objection only if reported by the test analyst, who reports firsthand observations. [Citation.]" Davenport did not present this question, however, because there was "no information" as to whether the reporting officer directly observed the test results and there was no hearsay objection "raised in the trial court."[8] (Ibid.) Thus, none of the cases on which Gananian relies prevents us from concluding that Cobb's sworn statement is admissible under Evidence Code section 1280 to the extent it reports Grochowski's observation of the driving.
Nor does the Third District Court of Appeal's recent decision in Cantrell v. Zolin (1994) 23 Cal. App.4th 128 [28 Cal. Rptr.2d 238] alter our conclusion. There, as in this case, the DMV relied on a sworn statement in which one officer reported another officer's observation of the driving. (Id. at p. 131.) The driver challenged the admissibility of this statement only insofar as it was relevant to the existence of probable cause to believe that the driver had *644 driven while under the influence. (Ibid.) The court rejected the challenge, finding that the statement was not hearsay on the issue because the DMV offered it to prove only the reasonableness of the officer's belief, not the truth of the matter stated. (Id. at pp. 132-133.) In a footnote, the court stated that the report was also relevant as proof that the driver was actually driving. (Id. at p. 133, fn. 2.) As to this issue, the court asserted that the report "was hearsay and thus insufficient alone to support a finding [citation]." (Ibid.) However, the court offers no analysis to support its statement. Moreover, the statement is dictum because the driver did not object to the report's introduction as proof that he was driving and the report "was corroborated by the testimony of [the driver] and his friends...." (Ibid.) For these reasons, we choose not to follow Cantrell.
The judgment is reversed, and the matter is remanded to the trial court with directions to deny Gananian's petition and reinstate the DMV's suspension order. The DMV shall recover its costs on appeal.
Merrill, J., and Corrigan, J., concurred.
Respondent's petition for review by the Supreme Court was denied June 22, 1995. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
NOTES
[1] Unless otherwise indicated, all further statutory references are to the Vehicle Code.
[2] Section 23158.2, subdivisions (a) and (b), require the peace officer who arrests the driver or serves the suspension order "immediately [to] forward to the [DMV] a sworn report of all information relevant to the enforcement action" using "forms furnished or approved by" the DMV.
[3] In County of Sonoma, we were discussing the business records exception to the hearsay rule (Evid. Code, § 1271) rather than the public employee records exception. (County of Sonoma v. Grant W., supra, 187 Cal. App.3d at pp. 1450-1451.) The two exceptions are essentially the same, except that the former applies to business records instead of official records and "`requires a witness to testify as to the identity of the record and its mode of preparation in every instance....'" (People v. Dunlap (1993) 18 Cal. App.4th 1468, 1477 [23 Cal. Rptr.2d 204].) Given this similarity, decisions analyzing the business records exception are applicable to our analysis in this case.
[4] As the court explained in Fisk v. Department of Motor Vehicles, supra, 127 Cal. App.3d at pages 78-79: "... the essential `circumstantial probability of trustworthiness' justifying the common law exception to the hearsay rule for official statements `is related in its thought to the presumption that public officers do their duty. When it is a part of the duty of a public officer to make a statement as to a fact coming within his official cognizance, the great probability is that he does his duty and makes a correct statement.... The fundamental circumstance is that an official duty exists to make an accurate statement, and that this special and weighty duty will usually suffice as a motive to incite the officer to its fulfillment.... It is the influence of the official duty, broadly considered, which is taken as the sufficient element of trustworthiness, justifying the acceptance of the hearsay statement.' [Citation.] (Italics in original.)" (See also Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal. App.3d 762, 786 [142 Cal. Rptr. 1] [because the requirement of a business duty to transmit information is a reasonable means of assuring reliability, the business records exception should apply where the entry is based upon information transmitted to the recorder by persons with firsthand knowledge and a business duty to know and report the information].)
[5] Given our conclusion, we need not determine whether section 23158.2 prohibits the DMV from relying on the unsworn police reports.
[6] On the contrary, quoting People v. Baeske, supra, 58 Cal. App.3d at page 780, the court in Fisk stated: "`The trustworthiness requirement for [the public employee records] exception to the hearsay rule is established by a showing that the written report is based upon the observations of public employees who have a duty to observe the facts and report and record them correctly.' [Citations.]" (Fisk v. Department of Motor Vehicles, supra, 127 Cal. App.3d at p. 77, italics added by the Baeske court.) Fisk's reliance on Baeske is significant. There, defendant contended that the trial court had improperly excluded a police report of a telephone call from the victim's neighbor, in which the neighbor reported the license number of the car involved in the crime. After making the statement that Fisk quotes, Baeske found the public employee records exception inapplicable because the neighbor, "the source of the information, was not a public employee with any duty either to observe facts correctly or to report her observations accurately to the police department." (People v. Baeske, supra, 58 Cal. App.3d at p. 781.) The court's decision implies that the report would have been admissible had the source of the information been a public employee with such a duty.
[7] Quoting Imachi, the court explained that "`... the requisite indicia of trustworthiness would be supplied by the fact that the analyst was reporting firsthand observations as well as by the presumption of official duty regularly performed. (Evid. Code, § 664.)'" (Santos v. Department of Motor Vehicles, supra, 5 Cal. App.4th at p. 547.)
[8] The court in Davenport also stated that "[e]ach matter sworn to [in a sworn report] must itself be supported by an adequate foundation of personal knowledge by the officer and any other appropriate guarantee of reliability, or that matter is not admissible and cannot be relied upon. [Citations.]" (Davenport v. Department of Motor Vehicles, supra, 6 Cal. App.4th at p. 140.) Since there was no hearsay objection, this statement is dictum. Moreover, the court's supporting citations do not establish this rule. In Daniels v. Department of Motor Vehicles, supra, 33 Cal.3d at page 537, the court held that a driver's accident report was not admissible under the business records exception because, although the source of the information was trustworthy, there was no showing as to "its identity and the mode of its preparation." In both Carlton v. Department of Motor Vehicles (1988) 203 Cal. App.3d 1428 [250 Cal. Rptr. 809], and Hoel v. City of Los Angeles (1955) 136 Cal. App.2d 295 [288 P.2d 989], courts held the exception inapplicable to police reports that either were or might have been based on observations of participants and bystanders who had no official duty to observe and report the relevant facts. None of these cases establishes that the exception applies only where the record contains personal observations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/827032/ | Order Michigan Supreme Court
Lansing, Michigan
September 6, 2011 Robert P. Young, Jr.,
Chief Justice
143040 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 143040
COA: 302568
St. Clair CC: 09-002337-FH
RICHARD PROCHOWSKI,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the March 18, 2011 order
of the Court of Appeals is considered and, it appearing to this Court that the cases of
People v Likine (Docket No. 141154), People v Parks (Docket No. 141181), and People v
Harris (Docket No. 141513) are pending on appeal before this Court and that the
decisions in those cases may resolve an issue raised in the present application for leave to
appeal, we ORDER that the application be held in ABEYANCE pending the decisions in
those cases.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 6, 2011 _________________________________________
p0829 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204044/ | 888 N.E.2d 1186 (2008)
227 Ill. 2d 587
PEOPLE
v.
CLEMON.
No. 105901.
Supreme Court of Illinois.
March Term, 2008.
Disposition of petition for leave to appeal[*]. Denied.
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725515/ | 675 So. 2d 951 (1996)
Michael WILKERSON, et al., Appellants,
v.
ALACHUA COUNTY, Florida, et al., Appellees.
No. 95-607.
District Court of Appeal of Florida, First District.
March 19, 1996.
Rehearing Denied July 16, 1996.
Robert A. Rush, Gainesville, for Appellants.
Robert M. Ott, County Litigation Attorney, Gainesville, for Appellees.
PER CURIAM.
Appellants are challenging an order granting appellee's motion to dismiss with prejudice, nunc pro tunc. Appellants argue *952 that the appellee is estopped from asserting a statute of limitations defense. This estoppel argument, however, was never presented to the lower court. This court has no authority to apply an equitable defense, such as estoppel, in the first instance. See, Palmer v. Thomas, 284 So. 2d 709 (Fla. 1st DCA 1973) (the function of an appellate court is to review errors allegedly committed by trial courts and not to entertain for the first time on appeal defenses which the complaining party could and should have but did not interpose and present to the trial court for decision). Because it was not raised below, we cannot find the lower court erred in not applying this equitable defense. See, Mighty Oak, Inc. v. Hartford Accident & Indemnity Co., 399 So. 2d 425 (Fla. 5th DCA 1981). Having no basis to overturn the lower court's order, it is AFFIRMED.
BOOTH, JOANOS and VAN NORTWICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1339905/ | 272 S.E.2d 861 (1981)
In re Scott Webster BROWNLEE.
No. 159.
Supreme Court of North Carolina.
January 6, 1981.
*869 John C. Cooke, Asst. County Atty., Raleigh, for petitioner-appellant, Wake County.
Johnson & Johnson by Sandra L. Johnson, Raleigh, for respondent-appellee, Scott Webster Brownlee.
BRITT, Justice.
The present case brings before this court two principal questions for our consideration: (1) whether Wake County is entitled to appeal from the orders entered by Judge Bason; and (2) whether the district court was empowered to direct the county to provide care for respondent at the Brown Schools in Austin, Texas. These issues are separate and distinct. Accordingly, it is appropriate for us to examine each one independently of the other.
WAKE COUNTY'S RIGHT TO APPEAL
G.S. § 1-271 codifies the common law rule that "[a]ny party aggrieved may appeal in the cases prescribed in this chapter." (Emphasis added.) See Duke Power Co. v. Salisbury Zoning Board of Adjustment, 20 N.C.App. 730, 202 S.E.2d 607, cert. denied, 285 N.C. 235, 204 S.E.2d 22 (1974). One who is not a party to an action or who is not privy to the record is not entitled to appeal from the judgment of a lower court. Siler v. Blake, 20 N.C. 90 (1838).
It is clear that Wake County was not a party to the present action when it came on for hearing before the district court. In his order of 22 August 1980, Judge Bason gave notice to Wake County that the court would turn to the county to bear the cost of providing care for Scott in the event that the North Carolina Department of Human Resources, the Wake County Area Mental Health Program, or the Wake County Board of Education were unable to develop and fund an appropriate program of treatment for the child. In that order, Judge Bason specifically requested the participation of the county in the dispositional hearing which he scheduled for 12 September 1980. In particular, the county was directed to provide the court with "any information and assistance it may wish ... or be able to offer regarding placement of Scott in an appropriate treatment facility which is less expensive than the Brown School." Notwithstanding this notice of the intention of the district court, the county elected not to participate in the dispositional hearing. There is no dispute, upon the present record, that the county had notice of the pendency of the action and was given the opportunity to be heard, both at the dispositional hearing as well as at the earlier hearing.
At the hearing of 18 August 1980, the county argued that it ought not to be a party to the proceeding because "it has never filed a motion or petition and because *870 there is no legal relationship between it and the child." While the factual basis of the county's argument is correct, to so argue, however, is to miss the point. The county had no responsibility to file a motion in the cause. Nor was the county privy to a legal relationship between itself and the child. The pertinent legal relationship was that between respondent and the Division of Youth Services to whom Scott's custody had been committed for the unauthorized use of a motor vehicle. The extent of the county's actual interest in the present case arises from its potential liability for the expenditure of its tax revenues. As such, it had no legitimate interest in the commencement of the action. Instead, its interest is confined to the effect a final disposition of the cause will have upon its financial resources.
Even if the county had been a party, it would not have had the right to appeal from the orders in question. G.S. 7A-667 provides as follows:
An appeal may be taken by the juvenile; the juvenile's parent, guardian, or custodian; the State or county agency. The State's appeal is limited to the following:
(1) Any final order in cases other than delinquency or undisciplined cases;
(2) The following orders in delinquency or undisciplined cases:
a. An order finding a State statute to be unconstitutional;
b. Any order which terminates the prosecution of a petition by upholding the defense of double jeopardy, by holding that a cause of action is not stated under a statute, or by granting a motion to suppress.
It is manifest that the statute which is set out above does not empower a county to take an appeal in a juvenile proceeding. While it is true that the Wake County Department of Social Services was given custody of Scott and directed to make all of the necessary arrangements for his transfer to the Brown Schools, that portion of Judge Bason's order cannot be employed as a basis upon which to found a right of appeal under the applicable statute. It is clear that the terminology "county agency" could not have been intended to include the very entity which would create the agency in the first place.
We hold that Wake County did not have the right to appeal from the challenged orders. Nevertheless, this court is authorized to issue "any remedial writs necessary to give it general supervision and control over the proceedings of the other courts" of the state. N.C. Constitution, Article IV, Section 12(1). Under exceptional circumstances this court will exercise power under this section of the constitution in order to consider questions which are not presented according to our rules of procedure; State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975); and this court will not hesitate to exercise its general supervisory authority when necessary to promote the expeditious administration of justice. Brice v. Robertson House Moving, Wrecking and Salvage Co., 249 N.C 74, 105 S.E.2d 439 (1958); Park Terrace, Inc. v. Phoenix Indemnity Co., 243 N.C. 595, 91 S.E.2d 584 (1956).
We consider the present case to be of such importance that the expeditious administration of justice requires us to invoke our supervisory authority. The novelty of the issues presented, coupled with the potential liability of the counties of North Carolina, serves to emphasize the proper role of the judiciary in securing a prompt resolution of this matter. While it is true that Wake County was not a formal party to the proceeding before Judge Bason, it does have a significant interest in the outcome of the matter in that its funds have already been expended pursuant to a court order and that its funds are potentially subject to further expenditures pursuant to the directive of the district court. In other words, the county has a cognizable interest in the determination of whether the action of the lower court was authorized by law. Therefore, we elect to treat the papers *871 which have been filed in this court as a motion calling upon the court to exercise its supervisory powers to enable it to review the orders entered by Judge Bason. The motion is allowed, and we will now proceed to examine the cause on its merits.
THE VALIDITY OF THE ORDERS
A careful study of the pertinent statutes leads us to conclude that Judge Bason did not have the authority to require Wake County to pay for Scott's treatment at the Brown Schools in Austin, Texas.
Judge Bason's order of 16 September 1980 states that he was sending Scott to "the Brown Schools for residential treatment pursuant to G.S. 7A-649(6)." G.S. 7A-649 lists ten "dispositional alternatives" that a district court judge has available to him in dealing with delinquent juveniles. G.S. 7A-649(6) provides that a judge may "[o]rder the juvenile to a community-based program of academic or vocational education or to a professional residential or non-residential treatment program. Participation in the programs shall not exceed 12 months". Obviously Judge Bason concluded that the Brown Schools provide "a professional residential ... treatment program".
G.S. 7A-647 provides district court judges with certain dispositional alternatives in dealing with delinquent, undisciplined, abused, neglected, or dependent juveniles. G.S. 7A-647(3) provides as follows:
In any case, the judge may order that the juvenile be examined by a physician, psychiatrist, psychologist or other qualified expert as may be needed for the judge to determine the needs of the juvenile. If the judge finds the juvenile to be in need of medical, surgical, psychiatric, psychological or other treatment, he shall allow the parent or other responsible persons to arrange for care. If the parent declines or is unable to make necessary arrangements, the judge may order the needed treatment, surgery or care, and the judge may order the parent to pay the cost of such care pursuant to G.S. 7A-650. If the judge finds the parent is unable to pay the cost of care, the judge may charge the cost to the county .... (Emphasis added.)
Since our present Juvenile Code, G.S. 7A, Articles 41-54, was enacted by the 1979 General Assembly and became effective on 1 January 1980 (1979 N.C. Sess. Laws c. 815) the courts have had little opportunity to construe its provisions. It is fundamental that legislative intent controls the interpretation of statutes. Housing Authority of the City of Greensboro v. Farabee, 284 N.C. 242, 200 S.E.2d 12 (1973); Person v. Garrett, 280 N.C. 163, 184 S.E.2d 873 (1971). In seeking to ascertain and give effect to the legislative intent, an act must be considered as a whole. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972). Statutes which deal with the same subject matter must be construed in pari materia, e. g., Shaw v. Baxley, 270 N.C. 740, 155 S.E.2d 256 (1967), and harmonized, if possible, to give effect to each. E. g., Jackson v. Guilford County Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969).
The first section of our Juvenile Code, G.S. 7A-516, provides:
This Article shall be interpreted and construed so as to implement the following purposes and policies:
(1) To divert juvenile offenders from the juvenile system through the intake services authorized herein so that juveniles may remain in their own homes and may be treated through community-based services when this approach is consistent with the protection of the public safety;
(2) To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents; and
(3) To develop a disposition in each juvenile case that reflects consideration of *872 the facts, the needs and limitations of the child, the strengths and weaknesses of the family, and the protection of the public safety. (Emphasis added.)
While it is manifest that the express words of the statute which is set out above speak in terms of "this article", it would be inappropriate for us to be oblivious to the public policy objectives which prompted the adoption of the new Juvenile Code by the 1979 General Assembly and which the legislature attempted to articulate in the introductory provisions of the legislation. Prior to the adoption of the Juvenile Code, judges of the district courts who were sitting in juvenile matters had little flexibility in making suitable provision for youthful offenders. Other than committing a juvenile to a county or regional detention home when such was needed for the protection of the community or in the best interest of the child, see G.S. § 110-24 (1978), the judges of the state were empowered only to place juveniles on probation, the conditions and duration of which were to be set out in the appropriate order entered in the cause. See G.S. § 110-22 (1978).
In seeking to introduce greater flexibility in the juvenile justice system of the state, the General Assembly, we think, was echoing the sentiments of the Penal System Study Commission of the North Carolina Bar Association. In its report, As the Twig Is Bent, the Commission observed
Certainly there are young people within our society for whom confinement and rigid discipline may be necessary for both their protection and society's protection. The State must provide a system of dealing with youngsters who become delinquent for whatever reason. It must afford young people maximum opportunities to overcome their problems and to become adults well equipped to take their places in society. Our present system does not achieve this goal.
* * * * * *
We must establish a continuity of care that begins when the child is arrested and continues through and beyond his incarceration until all reasonable steps have been taken to assure his rehabilitation.
North Carolina Bar Association Penal System Study Commission, As the Twig Is Bent 23 (1972); compare National Advisory Committee on Criminal Justice Standards and Goals, Juvenile Justice and Delinquency Prevention 611-12 (1976).
While the term "community-based program" is a term of art, see G.S. § 7A-517(8) (Cum.Supp.1979), we feel that its usage by the General Assembly reflects its concern that responses to the problems of the juveniles coming before the courts be fashioned in a flexible manner so as to address the best interests of the child in ways other than probation and commitment to training schools. The same subsidiary concept at work in the introductory provisions of the Juvenile Code permeates all of its subsequent provisions: The relationship of family and friends is an important component in the rehabilitative program for a youthful offender, and institutionalization of a child ought not to be ordered except in an extraordinary situation. Otherwise, the stabilizing and motivational attributes of familiar surroundings is lost to the process.
Indeed, the General Assembly has provided in concrete terms an expression of its concern in this regard by stating in G.S. § 7A-646 that
The purpose of dispositions in juvenile actions is to design an appropriate plan to meet the needs of the juvenile and to achieve the objectives of the State in exercising jurisdiction. If possible, the initial approach should involve working with the juvenile and his family in their own home so that the appropriate community resources may be involved in care, supervision, and treatment according to the needs of the juvenile. Thus, the judge should arrange for appropriate community-level services to be provided to the juvenile and his family in order to strengthen the home situation.
In choosing among statutorily permissible dispositions for a delinquent juvenile, *873 the judge shall select the least restrictive disposition both in terms of kind and duration, that is appropriate to the seriousness of the offense, the degree of culpability indicated by the circumstances of the particular case and the age and prior record of the juvenile. A juvenile should not be committed to training school or to any other institution if he can be helped through community-level resources. (Emphasis added.)
As we observed earlier, G.S. § 7A-649 provides ten specific alternatives from which the court is empowered to select what it feels to be the most appropriate disposition for a delinquent child. The wide variety and scope of the alternatives which are embodied in the statute's formulation of dispositional alternatives leads us to conclude that it was the legislature's intention that the district courts exercise sound discretion in fashioning an appropriate response to each particular instance of delinquency. The tenth alternative which is provided by the statute is clearly the most severe: commitment of the juvenile to the Division of Youth Services in accordance with the provisions of G.S. § 7A-652. This alternative is the most severe in that it makes no change in the former practice of committing juveniles to state training schools when it was concluded that conditional probation was inappropriate on the facts of the case. Clearly, that alternative ought to be employed only when there is no reasonable alternative open to the court in its disposition of the matter.
A close examination of the other nine alternatives provided by G.S. § 7A-649 indicates that all of them are subsumed within the concept of community-level services. It will be recalled that we earlier observed that community-based program is a term of art defined in the statute itself as being a residential or non-residential treatment program which serves a juvenile in the community in which he lives. Only G.S. § 7A-649(6) is in any way defined in terms of this term of art. Even then, its scope is limited to a program of academic or vocational education. Every other alternative provided by the statute, including the provision of G.S. § 7A-649(6) which authorizes commitment of a child to a professional residential or non-residential treatment program, can be employed in such a manner upon an appropriate court order that the concern of the Juvenile Code that the needs of an individual child be addressed in terms of programs which provide meaningful, community-level efforts which would serve to keep the child in familiar surroundings. It is apparent that such programs would be aided by the fact that a child's rehabilitation in such a program would be aided to a considerable degree by keeping the child among his family and friends, or at the very least, having them within reasonably close proximity to the location where the care is being provided to the child in question.
G.S. § 7A-646 sets forth in clear terms the mandate of the General Assembly in providing for various dispositional alternatives for delinquent juveniles. The statute provides that
... the initial approach should involve working with the juvenile and his family in their own home so that the appropriate community resources may be involved in the care, supervision and treatment according to the needs of the juvenile. Thus, the judge should arrange for appropriate community-level resources to be provided to the juvenile and his family in order to strengthen the home situation.
* * * * * *
A juvenile should not be committed to training school or any other institution if he can be helped through community-level resources.
While it is true that one of the clear objectives of the juvenile justice system is to fashion a response to the problems of a child within its purview which addresses the particular needs of the child and is in the child's best interests as determined by the court, see In re Vinson, 298 N.C. 640, 260 *874 S.E.2d 591 (1979); compare State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920), that determination cannot be made in a vacuum. Indeed, in making its decision concerning the disposition of a juvenile, a court exercising its juvenile jurisdiction must also weigh the best interests of the state. See In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd. sub. nom., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). What is or is not in the best interest of the child must be determined in tandem with the perception of the legislature as to what is in the best interest of the state as enunciated by the terms of the Juvenile Code and by its general theme as deduced from the impetus behind its enactment.
While G.S. § 7A-649 provides numerous alternatives to be employed in fashioning a suitable disposition for a juvenile delinquent, some of its provisions are not self-executing. It is conceivable that an appropriate disposition of a juvenile's case would require that resources other than those provided by governmental units be employed by the court. No doubt exists in our minds that the General Assembly envisioned such a situation emerging. This conclusion is made clear upon examination of the provisions of G.S. § 7A-647. In that statute, the legislature directed that
In any case, the judge may order that the juvenile be examined by a physician, psychiatrist, psychologist or other qualified expert as may be needed for the judge to determine the needs of the juvenile. If the judge finds the juvenile to be in need of medical, surgical, psychiatric, psychological, or other treatment, he shall allow the parent or other responsible persons to arrange for care. If the parent declines or is unable to make necessary arrangements, the judge may order the the needed treatment, surgery, or care, and the judge may order the parent to pay the cost of such care .... If the judge finds that the parent is unable to pay the cost of care, the judge may charge the cost to the county.
It would seem, therefore, that the dispositional alternatives enumerated by G.S. § 7A-649 are to be read in tandem with this provision. If it were not for this grant of authority, it is possible that the alternatives provided to the courts would, in some instances, be empty and unworkable. However, in invoking the authority to charge the cost of care to the county, the courts must be sensitive not only to the proper placement of the child. The courts must also consider what is in the best interest of the state in the utilization of its resources and those of its inferior components.
Throughout the Juvenile Code, there is a consistent emphasis upon treating a child at the community level. We do not understand this emphasis to be taken in a literal fashion. To do so would be to foster an absurd result. It is manifest that not all areas in our state are privy to the same wealth and the resources which that wealth would make available within the confines of the geographic community. While we hasten to add that the best interests of the child will often be served by keeping the individual in his own home, subject to guidance and outpatient services of one kind or another, it need not necessarily be so.
Our decision today ought not to be taken to mean that judges may not remove a child from his neighborhood and hometown or county. That would not be a reasonable interpretation of the statute and the legislative intent. Instead, we feel that the term community ought to be interpreted in a broad manner, connoting an interrelationship among persons who live in the same general area, but who also share the same laws, rights, and interests. See Sacred Heart Academy of Galveston v. Karsch, 173 Tenn. 618, 122 S.W.2d 416 (1938). In this regard, we find Judge Bason's order to be fatally defective. By making the detailed provisions of the Juvenile Code, with their repeated emphasis upon community-level services, we find it inconceivable that the General Assembly intended to vest the court with the authority to order a child *875 committed to an out-of-state facility and charge the cost of the care so provided to the county.
We commend Judge Bason for his longstanding concern for the welfare of juveniles who come before him. The record in the present case reveals the patience that His Honor exercised in dealing with Scott over a period of many months and his tireless efforts to secure effective help for a delinquent and disturbed youth. Such patience and expenditure of effort is a salutary example to the judiciary of this state. However, we are unable to conclude that the General Assembly intended to vest him with the authority which he sought to exercise in this case. Hopefully, this case and others like it, will prompt our state to develop an effective means of dealing with children of Scott's nature and disposition.
For the reasons stated, the judgment of the District Court is
Reversed.
CARLTON, Justice, dissenting.
I respectfully dissent from the majority opinion. In interpreting the statutes enacted by our Legislature, it places form above substance, erroneously construes the dispositional provisions of our juvenile code, and produces a result which seriously curtails the ability of court officials to deal with emotionally disturbed children.
I disagree with the majority's repeated emphasis on and interpretation of the provisions of G.S. 7A-649 for two reasons.
First, it is obvious from the record that Judge Bason intended to commit the child under the authority of G.S. 7A-647(3), not G.S. 7A-649(6) as assumed by the majority. As developed more fully below, the former clearly authorizes Judge Bason's action. While the final order did recite that Scott was being sent to the Brown School pursuant to G.S. 7A-649(6), it also expressly stated that Wake County's responsibility to provide for the care was pursuant to G.S. 7A-647(3). Moreover, various findings and conclusions by the trial judge compel the conclusion that he was proceeding under the authority of G.S. 7A-647(3). For example, conclusion of law E. in the final order provided, "This court has the authority to order the treatment Scott needs and to charge that cost to Wake County pursuant to G.S. 7A-647(3) " (emphasis added). For the majority to ignore all of this and simply conclude that the judge was proceeding solely under G.S. 7A-649(6) is, in my opinion, placing form above substance.
Secondly, assuming arguendo that Judge Bason was proceeding under the authority of G.S. 7A-646(6), I strongly disagree that this statute is presently limited to programs within the State of North Carolina. The statute provides that a judge may "[o]rder the juvenile to a community-based program of academic or vocational education or to a professional residential or non-residential treatment program." G.S. 7A-649(6) (Cum. Supp.1979) (emphasis added). The "community-based" limitation is clearly intended to apply only to the academic or vocational education programs-programs normally available in many communities. The remainder of the sentence referring to professional programs is pointedly separated by the words "or to" and there is not even a hint that such programs must be located within the child's home community or the state. Indeed, such programs are available in relatively few communities in North Carolina and no community in the state has available the program prescribed for Scott. This was the finding of the trial court and is binding on this Court on appeal.
G.S. 7A-647(3), quoted in the majority opinion, clearly allows the trial judge to order psychiatric, psychological or other appropriate care for a child when he finds the child needs such care and to charge the costs to the county. This is what the statute provides, plainly and simply. There is absolutely nothing in the statute limiting the trial court to in-state placement for treatment of a disturbed child.
The majority has strained mightily to find some language in our juvenile code to *876 support its result. In my opinion, it has failed to do so. After quoting, disjointedly, various sections of the code emphasizing the laudable goal of serving troubled children in surroundings most similar to their own communities when appropriate programs are available, the majority then concludes that, "we find it inconceivable that the General Assembly intended to vest the court with the authority to order a child committed to an out-of-state facility and charge the cost ... to the county." The majority cites no authority for such a conclusion, for there is none.
I find the reasoning of the majority both strained and inconsistent. For example:
(1) It speaks of the lack of flexibility provided by the former juvenile code in dispositional alternatives and interprets the present code to provide a more "flexible manner" for courts to fashion responses to the problems of juveniles, yet it denies that very flexibility in the matter before us.
(2) It acknowledges the clear intent of the code that juveniles be committed to training school only when no other "reasonable alternative" is available, yet it denies Scott Brownlee the only "reasonable alternative" the trial court could find for him after weeks of pleading with local and state agencies for help they were unable to provide.
(3) In holding that one of the clear purposes of the juvenile justice system is to serve the child's best interests, the majority holds that a dispositional "determination cannot be made in a vacuum." The majority states, "a court exercising its juvenile jurisdiction must also weigh the best interests of the state," yet the majority fails to point to any step in these proceedings at which the trial court was acting in a "vacuum" or at which the judge failed to consider the "best interests of the state." Indeed, the majority could make such statements only in the abstract because the record before us discloses that the trial court gave Wake County every conceivable opportunity to present an alternative solution and invited the county to fully participate in the proceedings. The assistant county attorney, at one stage of the proceedings, walked out of the courtroom. If any "vacuum" resulted, it was the fault of Wake County, not that of the trial court or of the child.
(4) The majority states that "[i]t is conceivable that an appropriate disposition ... would require that resources other than those provided by governmental units be employed by the court. No doubt exists in our minds that the General Assembly envisioned such a situation emerging." The majority here denies such a resource to Scott Brownlee.
(5) The majority holds that G.S. 7A-649 must be read "in tandem" with G.S. 7A-647, yet it fails to apply the clear language of G.S. 7A-647(3) to the matter before us.
(6) The majority holds that when a juvenile judge invokes the authority to charge the cost of care to a county, the judge must be sensitive both to the proper placement for the child and consider the best interests of the state "in the utilization of its resources and those of its inferior components," yet it fails to note any failure of the trial court to consider the utilization of Wake County's resources. If the implication is that the approximate annual cost in excess of $40,000 for treatment at the Brown School is excessive, how does the majority rationalize such a conclusion with the finding quoted in the opinion that the average annual cost of treatment for an adolescent at Dorothea Dix Hospital in Raleigh is $65,000?
(7) The majority states that, "Our decision today ought not to be taken to mean that judges may not remove a child from his neighborhood and hometown or county. That would not be a reasonable interpretation of the statute and the legislative intent," yet it denies such removal of this child. Its only explanation for such a result is that the majority finds "inconceivable" a legislative intent to vest the trial court with authority for out-of-state placement at county expense.
*877 The majority, in effect, has held that the juvenile code permits treatment of a child only in "community-based" facilities and that "community" is intended by the Legislature to encompass the entire state. That this could not have been the legislative intent is clear from the code itself. Throughout the code are references to treatment of the child within his own community, and full utilization of "community-level resources" is required before a juvenile can be committed to a state training school. Additionally, a "community-based program" is defined as "[a] program providing nonresidential or residential treatment to a juvenile in the community where his family lives." G.S. § 7A-517(8) (Cum.Supp.1979) (emphasis added). "Community" was obviously intended by our Legislature to mean a much smaller geographic area than the entire state. And it is also obvious that the Legislature, although it intended that resources within the child's community be utilized first, did not intend district court judges to be limited to resources available within the child's community when fashioning the appropriate disposition for each child. Likewise, there is nowhere manifested in the juvenile code an intent that the available dispositional alternatives be limited to facilities within the state.
This Court announces today that juvenile judges must exercise "sound discretion" in determining appropriate dispositions for juvenile delinquents, yet it cites no instance in which Judge Bason abused his discretion. Is it because the costs of this program are too excessive or the distance to Texas too far? Is it because the majority feels the program of treatment inappropriate for this child? Trial courts are given no guidelines for exercising their discretion. One can only conclude from the opinion that the majority feels that Judge Bason abused his discretion by placing Scott in a program beyond the borders of North Carolina. However, would the majority result have been any different had the same program at the same cost been available within our state but several hundred miles from Scott's home county? I realize, of course, that an appellate court cannot always answer questions which are not asked and must deal with the record before it. However, I fear that the majority opinion today will be confusing to our trial judges as they attempt to decide whether their dispositions for juveniles are based on "sound discretion."
I wish to make it clear that I do not advocate that juvenile judges be given the authority to send children all over the country for treatment wherever and whenever they wish. Obviously, there is a limit to the amount of public funds which can be expended for such purposes. Equally obvious, as the majority acknowledges, is that North Carolina must develop effective programs for such children. The Legislature must address this serious problem. In the meantime, however, Scott Brownlee should not be denied a program which is in his best interests and which the present juvenile code plainly allows, G.S. § 7A-647(3) (Cum. Supp.1979). I do not think this Court should engage in judicial legislating.
The result of the decision of this Court today is to take Scott Brownlee from a program found to be in his best interest and to bring him back to Wake County to face an uncertain future. Perhaps that will not matter. Like the majority, I have no idea whether Scott has made any progress whatsoever. It may be that this young man's mind is so disturbed that no program anywhere in the world could prevent his graduation from juvenile delinquent to hardened criminal. It seems to me, however, that we ought not to give up on him in the middle of treatment and return him to a situation which offers little hope. The odds that he will soon be an adult criminal will surely be greater if he is returned. Such a result, I might add, will be far more expensive to the public than the costs of his present program. With so much at stake, I simply cannot understand why a majority of this Court chooses to read words into our juvenile code which are not there.
*878 During oral argument, one member of this Court stated that he could not conceive that our Legislature intended to give juvenile judges the authority to send children, at county expense, to such far away places as Texas, Hawaii or England. I agree that not even the first member of our Legislature consciously considered that our emotionally disturbed children would be sent so far away. Such a conclusion on our part, however, should not result in the decision reached by the majority today. Rigid adherence to such a view has led a majority of this Court to usurp the legislative process. Moreover, our juvenile judges will find it far more difficult in the future to utilize novel and innovative programs for delinquent children.
Assuming the Legislature never contemplated the situation presented by the record before us, what should this Court do about it? The answer is, of course, that we should construe the statute according to its plain meaning and not attempt to divine what the Legislature would have intended had it considered this situation. We should affirm the action of the trial court because it was proper under the present code. The Legislature convenes in this city in less than three weeks and can, if it wishes, amend the statutes to more clearly reflect the legislative intent, whatever that may be. The public money spent during the interim would surely not be an unwise investment when compared to the harm this decision may cause to Scott Brownlee and to thousands of other young people in the future.
I vote to affirm.
EXUM, J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070731/ | Fourth Court of Appeals
San Antonio, Texas
August 26, 2015
No. 04-15-00486-CV
Elgin TRACY, Adolph Tracy, and Travis Morgan,
Appellants
v.
Edward W. CHAMRAD, Jr.,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 15-05-0240-CVW
Honorable Russell H. Wilson, Judge Presiding
ORDER
In this accelerated appeal, the reporter’s record was due on August 10, 2015. See TEX. R.
APP. P. 35.1(b). On August 17, 2015, after no reporter’s record had been filed, we notified court
reporter Leticia M. Escamilla that the record was late. On August 24, 2015, court reporter
Leticia M. Escamilla filed a notification of late reporter’s record that stated Appellant has not
paid for the record and is not entitled to appeal without paying the reporter’s fee.
We order Appellant to provide written proof to this court within ten days of the date of
this order that (1) the reporter’s fee has been paid or arrangements have been made to pay the
reporter’s fee, or (2) Appellant is entitled to appeal without paying the reporter’s fee. If
Appellant fails to respond within the time provided, Appellant must file a brief with this court
within twenty days from the date of this order, and the court will only “consider and decide
those issues or points [raised in Appellant’s brief] that do not require a reporter’s record for a
decision.” See id. R. 37.3(c).
If Appellant timely complies with this order, the reporter’s record will be due ten days
from the date Appellant files written proof showing compliance with this order. See id. R.
35.3(c) (limiting an extension of time to file the record in an accelerated appeal to ten days).
If the reporter’s record is not filed with this court as ordered above, any requests for
additional time to file the record must be accompanied by a signed, written status report. The
report must describe the transcript by day with the date, description, page counts, and remarks
for each day. The page counts must include the total number of pages, the number of pages
edited, proofread, and formatted into the required electronic form (including bookmarks). The
report may describe any unusual aspects of the record. The report must describe any problems
the court reporter reasonably believes may delay the completion of the record beyond the
requested date. A preferred form for the status report, with an accompanying example, is
attached to this order.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 26th day of August, 2015.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1916105/ | 110 N.J. 650 (1988)
542 A.2d 900
TRIANTAFYLLOS THANASOULIS, PLAINTIFF-APPELLANT,
v.
WINSTON TOWERS 200 ASSOCIATION, INC., DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Argued February 17, 1988.
Decided June 30, 1988.
*652 John Dolan Harrington argued the cause for appellant.
Joseph B. Fiorenzo argued the cause for respondent (Greenstone and Sokol, attorneys; Joseph B. Fiorenzo and Jeffrey A. Zenn, on the brief).
The opinion of the Court was delivered by STEIN, J.
In this case we are required to reconcile the exercise of a condominium association's managerial powers with the provisions of the Condominium Act, N.J.S.A. 46:8B-1 to -38 (the "Act"), and a condominium master deed. Specifically, the primary issue is whether a condominium association can charge nonresident unit owners higher monthly parking fees than it charges resident owners in order to retain the extra revenue for the association's benefit. A second issue concerns an association regulation that prohibits a new purchaser of a condominium unit from renting the unit until after he or she has lived in the unit for one year. The trial court upheld both regulations and granted summary judgment in favor of the association. A divided Appellate Division panel affirmed, Thanasoulis v. Winston Tower 200 Ass'n, Inc., 214 N.J. Super. 408, (1986). We hold that in adopting the parking fee differential, the association exceeded the scope of its power as defined by the Act and the master deed, and that the regulation is therefore invalid. We also find that because there remain unresolved issues of material fact concerning plaintiff's challenge to the one-year residency requirement, that question should not have been disposed of by summary judgment. We therefore reverse the judgment of the Appellate Division.
I
Plaintiff, Triantafyllos Thanasoulis, owns a condominium unit in the Winston Towers high-rise residential complex, located in Cliffside Park, New Jersey, which he presently leases to a tenant. The complex contains 614 apartment units and includes *653 a multi-level parking garage with 903 spaces and a parking yard with 100 spaces. Defendant, Winston Towers 200 Association, Inc. (Association), is the association of unit owners created by the Winston Towers Master Deed.
The Association, through its elected Board of Directors (Board), is responsible for the administration and management of the Winston Towers common elements, which include the parking areas. Paragraph nine of the master deed deals with the parking facilities:
9. PARKING AND GARAGE FACILITIES: The parking and garage facilities within the Property shall be part of the Common Elements and, subject to the provisions of the By-Laws, will be operated by the Association which shall have the right to lease all or part of the operation thereof on such terms and conditions as it may determine. Each Unit Owner, upon application, will be entitled to rent annually at least one garage space. Rentals for garage space will be established by the Association and shall be payable as the Association shall direct. All revenue received by the Association from the garage operation shall be applied in accordance with the By-Laws. [Emphasis added.]
Plaintiff purchased his unit in December 1972 and resided there until February 1981. During this period, plaintiff exercised his right to lease a parking space at the condominium's parking garage. The charges per month for parking spaces for all unit owners were $25 for a single indoor space, $40 for a tandem space, and $20 for an outdoor space.
In June 1981, the Board revised the parking charges. The rates for nonresident owners were increased to $75 for a single indoor space, $125 for a tandem space, and $50 for an outdoor space; the Association's rationale was that the new rates reflected the "market value" of parking spaces in the community. Resident unit owners would continue to pay the original rates. The president of the Association stated that through this action the Association sought to prevent unit owners who rented their units from realizing profits from parking space rentals. The Board determined that a unit owner would be prohibited from renting his unit unless his tenant separately leased the unit's parking space from the Association at the *654 higher rates.[1] The trial court noted that the additional funds raised by the revised rates were added to the common expense fund, which financed the maintenance of all the common elements.
In October 1981, the Association adopted another rule that required incoming unit owners to occupy their units for at least one year before leasing them to third parties.
In February 1983, plaintiff leased his unit, for the first time, to a tenant for a two-year term.[2] To conform with the Board's parking rule, plaintiff's agreement with his tenant contained the following language:
Landlord [plaintiff] agrees that he will guarantee payment of rent due and owing under said parking lease in the event Tenant fails to pay same promptly.
It is understood and agreed that the Tenant should enter into a lease with Management for Parking Space: $75.00 for indoor parking; $125.00 for tandem parking and $50.00 for outdoor parking per month and that any additional security required by management shall be paid by Tenant.
Plaintiff filed suit in the Chancery Division, seeking to invalidate *655 both rules.[3] The court granted defendant's motion for summary judgment. It found that although the differential parking charges discriminated against nonresident unit owners, such discrimination was not an illegal exercise of the Association's power. The court similarly disposed of plaintiff's challenge to the one-year residency requirement on the basis of a colloquy with counsel that apparently persuaded the trial court that plaintiff had been given notice of the residency requirement at the time he purchased his unit.
The Appellate Division's affirmance was "substantially for the reasons expressed by" the trial court. 214 N.J. Super. at 412. According to the majority, the scope of judicial review of condominium association decisions is limited to a two-pronged test: "(1) whether [an association's] action was authorized by statute or its own bylaws and, if so, (2) whether the action was fradulent, self-dealing or unconscionable." Id. at 411. The court assumed, without extended discussion, that the Association's action was properly authorized, and concluded that the first prong had been satisfied. In addition, the court accepted the trial court's finding that the parking rate differential "was reasonable and was adopted in good faith," and ruled that the Association's action was valid under the second prong of the test as well. The majority opinion did not address the one-year residency requirement issue.
The dissenting judge would have invalidated the revised parking fee schedule. Judge Cohen observed that the Association had "improperly converted to the use of all unit owners a property right granted by the master deed to individual unit owners." Id. at 471. After analyzing several sections of the *656 Act, Judge Cohen concluded that "an association may not selectively create a class of individual owners and deprive them of valuable elements of unit ownership." 214 N.J. Super. at 424. Concerning the residency requirement, Judge Cohen viewed the trial court's ruling on that issue as turning on the question of plaintiff's standing to challenge the rule. Judge Cohen expressed the view that plaintiff had been denied the opportunity to show that he had standing to challenge the residency requirement and that summary judgment in favor of defendant on that issue should not have been granted. Id. at 425.
By virtue of the dissent, plaintiff appealed as of right to this Court. R. 2:2-1(a).
II
In Siller v. Hartz Mountain Ass'n, 93 N.J. 370 (1983), we noted some of the unique aspects of condominium ownership. We observed that "[t]he individual condominium purchaser owns his unit together with an undivided interest in common elements." Id. at 375. In addition, we explained that this ownership interest constitutes a separate parcel of real property that the owner may deal with as he would any parcel of real property. Ibid.
One aspect of condominium ownership that distinguishes it from other types of property interests, however, is the role of the condominium association. An association is comprised exclusively of the unit owners who, through their individual deeds, automatically become members. In essence, an association is responsible for the governance of the common areas and facilities used by the owners of the condominium units. It is a representative body that acts on behalf of the unit owners. Its powers derive from its by-laws, the master deed, and applicable statutory provisions. An association may enter into contracts, bring suit and be sued. The most significant responsibility of an association is the management and maintenance of the *657 common areas of the condominium complex. See generally W. Smith, New Jersey Condominium Law § 2:4, at 10-11 (1985) (generally defining and describing condominium associations); W.S. Hyatt, Condominium and Homeowner Association Practice: Community Association Law, 6-7 (1978) (same).
We have not had occasion previously to consider in depth the appropriate standard of judicial review of actions by condominium associations. In Siller, supra, 93 N.J. 370, however, we recognized certain basic principles: first, that acts of an association "should be properly authorized;" and second, that the association's management has a "fiduciary relationship to the unit owners, comparable to the obligation that a board of directors of a corporation owes its stockholders," and that "[f]raud, self-dealing or unconscionable conduct at the very least should be subject to exposure and relief." Id. at 382.
We need not elaborate on these principles here because, in our view, the validity of the parking fee regulation depends on whether its adoption was within the Association's authority as defined by the Act and the Winston Towers master deed. We agree with the dissent below that "[t]here may be some cases in which differences in judicial approaches to condominium self-government will lead to different results. This case is not one of them." 214 N.J. Super. at 424.[4]
Our discussion focuses on certain provisions of the Act and the Winston Towers master deed. A condominium is created by the recording of a master deed. N.J.S.A. 46:8B-8. The Act requires the master deed to contain certain information. N.J.S.A. 46:8B-9. Each unit of the condominium must be separately *658 described and identified. N.J.S.A. 46:8B-9(e). The Act defines "unit" as "a part of the condominium property designed or intended for any type of independent use," including "the proportionate undivided interest in the common elements * * * assigned thereto in the master deed * * *." N.J.S.A. 46:8B-3o. (Emphasis added.) "Common Elements" means the land described in the master deed, and includes "yards, gardens, walkways, parking areas and driveways * * *, unless reserved or limited by the master deed." N.J.S.A. 46:8B-3d. (Emphasis added.) The Winston Towers master deed provides that the "common elements shall consist of all parts of the property other than the Apartment Units, including the items set forth in the Condominium Act," and specifies that the "parking and garage facilities within the Property shall be part of the Common Elements." The master deed also provides that each apartment owner is "entitled to rent annually from the Association at least one garage space."
Plaintiff's unit deed contained his unit designation as set forth in the master deed and a statement of his proportionate undivided interest in the common elements. A unit deed "shall have the same force and effect in regard to such unit as would be given to a like instrument pertaining to other real property * * *." N.J.S.A. 46:8B-10. Further, "each unit shall constitute a separate parcel of real property which may be dealt with by the owner thereof in the same manner as is otherwise permitted by law for any other parcel of real property." N.J.S.A. 46:8B-4; see also Siller v. Hartz Mountain Ass'n, supra, 93 N.J. at 375 ("unit owner, having a fee simple title, enjoys exclusive ownership of his individual apartment or unit, while retaining an undivided interest as a tenant in common in the common facilities * * *.").
The Act specifically characterizes the nature of plaintiff's property rights in his portion of the common elements:
The proportionate undivided interest in the common elements assigned to each unit shall be inseparable from such unit, and any conveyance, lease, devise or other disposition or mortgage or other encumbrance of any unit shall *659 extend to and include such proportionate undivided interest in the common elements, whether or not expressly referred to in the instrument effecting the same. The common elements shall remain undivided and shall not be the object of an action for partition or division. The right of any unit owner to the use of the common elements shall be a right in common with all other unit owners (except to the extent that the master deed provides for limited common elements) to use such common elements in accordance with the reasonable purposes for which they are intended without encroaching upon the lawful rights of the other unit owners. [N.J.S.A. 46:8B-6 (emphasis added).]
Thus, the Act explicitly guarantees that the right of a unit owner to the use of common elements is indivisible from the owner's interest in the condominium itself.
Each condominium unit owner is proportionately liable for "common expenses," which include "expenses declared common by provisions of [the Act] or by the master deed * * *." N.J.S.A. 46:8B-3e. These common expenses are charged to unit owners according to the percentage of their respective undivided interests in the common elements as determined by the master deed. N.J.S.A. 46:8B-17. Paragraph five of the Winston Towers master deed, in pertinent part, provides:
5. COMMON EXPENSES: Each Unit Owner shall be required to pay his proportionate share of the expenses of maintenance, repair, replacement, administration and operation of the Common Elements, including the fees, charges and expenses payable with respect to the Additional Recreational Facilities Agreement herein referred to which expenses are hereinafter referred to collectively as "Common Expenses". Such proportionate share shall be the same as the proportionate, undivided interest of the Unit Owner in the Common Elements as set forth in Exhibit C hereof. [Emphasis added.]
Thus, both the Act and the Winston Towers master deed mandate that the expense of common elements, such as the parking garage, be allocated proportionately among unit owners; neither authorizes a distinction in this regard between resident and nonresident owners.
A condominium association is responsible for the administration and management of the condominium. N.J.S.A. 46:8B-12. N.J.S.A. 46:8B-15 specifically enumerates some of the Association's powers, which are qualified by the master deed, by-laws, and other provisions of the Act. Chief among them for purposes of this case is the power of the Association to "lease or *660 license the use of common elements in a manner not inconsistent with the rights of unit owners." N.J.S.A. 46:8B-15(c) (emphasis added.)
Finally, the Act provides that a master deed may be amended or supplemented only "in the manner set forth therein." N.J.S.A. 46:8B-11. Further, no amendment to the master deed can "change a unit" unless that unit owner consents to the change. Ibid. Amendments to the Winston Tower master deed must be approved by "unit owners owning not less than Seventy-Five (75%) percent in the aggregate of the total ownership interest in the Common Elements."
III
Because the Winston Towers master deed made the parking facilities part of the common elements, plaintiff's ownership interest in his unit included the exclusive use of his apartment unit, a proportionate undivided interest in the common elements, and the right to rent a parking space. N.J.S.A. 46:8B-6. This property interest is inseparable from the balance of plaintiff's unit, and his lease with his tenant "extended to and included" the parking space. Ibid. By substituting itself as the lessor of plaintiff's parking space and thereby severing plaintiff's property right to his parking space, defendant exceeded its authority under the Act, which permits it only to "lease or license the use of the common elements in a manner not inconsistent with the rights of unit owners." N.J.S.A. 46:8B-15(c).[5]
Defendant asserts that pursuant to the master deed the Association possesses broad discretionary control over the garage and the authority to change the parking-garage rentals. Concededly, defendant can establish reasonable rules and regulations *661 concerning the size of the spaces, speed limits in the garage, and other rules necessary to maintain order and safety in the area. But while it possesses the discretionary power to establish rental rates, the Association cannot expropriate the economic value of plaintiff's parking space for its own use. As a unit owner, plaintiff has the right to lease his unit, which includes his parking space and his interest in the common elements. The economic reality of the new regulation is that the Association has effectively confiscated for its own use the value of plaintiff's parking space.[6]
Moreover, the Association is prohibited by the Act from discriminating against plaintiff because he is a nonresident owner. Under the Act, plaintiff is only proportionately liable for his share of the common expenses, N.J.S.A. 46:8B-3e, determined on the basis of plaintiff's proportionate undivided interest in the common elements. N.J.S.A. 46:8B-9(g). Another vice of the parking fee regulation is that the higher fees paid by nonresident owners necessarily reduce the common-elements charge apportioned among all owners. In effect, defendant has required plaintiff, through his tenant, to contribute three times more money to the common-expense fund for parking privileges than do other unit owners who do not rent their units. The result is that plaintiff is compelled to bear a disproportionate share of the common expenses.
Defendant contends that a primary purpose of the new rule is to make less burdensome the common expenses shared by all unit owners. However, defendant's argument proves too much. Any reduction in the burden of common expenses resulting from the Board's action comes at the expense of one class of unit owners those who rent their units.
*662 Defendant also contends that the parking garage exists for the benefit of all unit owners and any profit made by renting spaces should belong to all unit owners. This argument was persuasively refuted by Judge Cohen's dissent in the Appellate Division. He stated:
The argument ignores the fact that the right to rent a space is guaranteed to each owner just as is the right to exclusive use of the apartment unit itself. The owner's profit on renting the apartment is not subject to confiscation by the Association, and neither is the owner's profit on subleasing garage use to the unit tenant. They are both profits gained by leasing the whole of the owner's bundle of rights to another person. It should not matter whether the apartment is leased for $1925 per month and the garage space for $75, or if the apartment costs $2000 per month and parking is afforded with no extra cost. [214 N.J. Super. at 421-22 (Cohen, J.A.D., dissenting).]
Obviously, the Association could not charge tenants of nonresident owners a surcharge for the use of some component of the unit, such as the right to use a unit's storage area, on the theory that the unit owner is deriving some profit from renting that part of his unit. Yet, because the Act and master deed accord plaintiff's parking space the same status as any other component of his property interest in the unit, that is precisely what the Association has done in this case.
The Association also seeks to justify its regulation as a security measure designed to prevent unit owners and their tenants from subletting their parking spaces to people not residing in the building. Security of the condominium complex is obviously a legitimate concern of the Association. In our view, however, the regulation at issue cannot be sustained on this basis. There are other methods by which the Association can secure the parking facilities, such as requiring permits and employing security personnel, without encroaching on the rights of unit owners under the Act and master deed.
The Association's action violates another provision of the Act. The revised schedule of parking space charges was adopted by the Association's Board of Directors. The Board's resolution, specifically referring to paragraph eighteen of the master deed, which established the procedure unit owners had to follow to *663 rent their units, declared that no leases of units would be approved without a provision requiring the owner's tenant to lease the parking space directly from the Association at the increased rental rates. The effect of the Board's action was to supersede paragraph eighteen of the master deed. Because the Board's resolution was adopted without the approval of seventy-five percent of the unit owners, it was an unauthorized exercise of power by the Board. See N.J.S.A. 46:8B-11.
Further, the Board's action in revising the parking rates constituted a "change in a unit" contrary to N.J.S.A. 46:8B-11, which prohibits "changes in a unit" without the consent of the unit owner. The Act does not define the phrase "change in a unit," but we assume that the legislative intent was that a unit owner should retain essentially the same property rights originally deeded to him for as long as he owns his unit, unless he affirmatively consents to their being altered. A parking space in a 614-unit condominium complex that is situated in a congested area is obviously a vital component of the unit. The revised parking rules have the effect of confiscating a portion of the property interest he acquired when he purchased his unit, thereby denying plaintiff the economic value of a portion of his unit. The revised rules, therefore, did constitute a "change" in plaintiff's unit in contravention of the Act.
Plaintiff purchased a property interest that included a proportionate undivided interest in the parking facilities, and the right to rent a parking space. That property interest was permanent and inseparable from his unit and could be altered only through the specific procedures contained in the Act and the master deed. Accordingly, defendant exceeded its authority, and the revised parking fee schedule is invalid.
Our reading of the trial court's disposition of plaintiff's challenge to the residency requirement reveals that the court did not properly focus on the essence of plaintiff's argument. The regulation was adopted nine years after plaintiff purchased his unit. The critical issue is not whether plaintiff or a new *664 purchaser received notice of the regulation prior to purchasing the unit. Rather, plaintiff argues that the regulation affects the marketability and value of his unit because it discourages prospective buyers who are interested in purchasing his unit for investment purposes. The record contains no evidence relating to whether the regulation affects plaintiff in this manner. We agree, therefore, with Judge Cohen that there remained unresolved issues of material fact concerning the threshold matter of plaintiff's standing to challenge this regulation. If plaintiff is able to establish that this regulation affects the alienability of his property to the extent that he has "sufficient stake and real adverseness" necessary to confer standing, Crescent Park Tenants Ass'n v. Realty Equity Corp. of N.Y., 58 N.J. 98, 107 (1971), he may challenge its validity. Therefore, the grant of summary judgment in favor of defendant was improper.
The judgment of the Appellate Division is reversed and the matter is remanded to the Chancery Division for proceedings consistent with this opinion.
GARIBALDI, Justice, dissenting in part, concurring in part.
In Siller v. Hartz Mountain Assocs., 93 N.J. 370, 382, cert. den., 464 U.S. 961, 104 S.Ct. 395, 78 L.Ed.2d 337 (1983), we held that "[t]he association's board of directors, trustees or other governing body have a fiduciary relationship to the unit owners, comparable to the obligation that a board of directors of a corporation owes to its stockholders." Accord Papalexiou v. Tower West Condominium, 167 N.J. Super. 516 (Ch.Div. 1979); Rywalt v. Writer Corp., 34 Colo. App. 334, 526 P.2d 316 (Ct. App. 1974). By analogizing the role of a condominium association to that of a corporation's Board of Directors, we concluded that the "business judgment" rule should be applied in reviewing condominium rulemaking.
Applying that rule in this case, I find that the Association acted within its authority and in good faith when promulgating *665 the regulation that increased parking garage fees for tenants of nonresident owners. Hence, I dissent from so much of the Court's judgment as holds that the parking garage regulation was invalid. However, I concur with so much of the Court's judgment as holds that summary judgment was improperly granted with respect to plaintiff's standing to challenge the one-year residency requirement.
I.
Ownership of a condominium differs in significant respects from other traditional forms of property ownership. Unlike the more traditional property owner, an owner of a condominium unit faces certain restrictions of ownership rights when entering into a condominium arrangement. In the condominium context, for instance, courts have consistently rejected individual unit owners' challenges to condominium rulemaking when the challenged restrictions have been promulgated by the Association in order to benefit a majority of the condominium's unit owners. Papalexiou, supra, 167 N.J. Super. 516 (right of Board of Directors to make special assessment against unit owners upheld); Ritchey v. Villa Nueva Condominium Ass'n, 81 Cal. App.3d 688, 146 Cal. Rptr. 695 (Ct.App. 1978) (condominium by-laws restricting occupancy of unit to persons age eighteen or older upheld); Rywalt v. Writer Corp., supra, 526 P.2d 316 (Association authorized to construct tennis court on common property); Johnson v. Hobson, 505 A.2d 1313 (D.C. 1986) (upheld regulation, under which unlicensed or unregistered cars could be towed from condominium lot); Juno by the Sea N. Condominium Ass'n v. Manfredonia, 397 So.2d 297 (Fla.Ct. App. 1980) (parking regulation reasonable where prospective unit owners had notice of the assignment of parking spaces); Seagate Condominium Ass'n v. Duffy, 330 So.2d 484 (Fla. Dist. Ct. App. 1976) (by-law amendment prohibiting leasing of units for any purpose other than a private dwelling for owner and immediate family upheld); Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. Dist. Ct. App. 1975) (Board of Directors' *666 rule prohibiting the use of alcohol in the condominium clubhouse upheld); Franklin v. Spadafora, 388 Mass. 764, 447 N.E.2d 1244 (1983) (by-law amendment limiting to two the number of units in condominium owned by any one person upheld); Ryan v. Baptiste, 565 S.W.2d 196 (Mo. Ct. App. 1978) (Board of Directors rule installing locks on exterior entryways upheld); Garrison Apts, Inc. v. Sabourin, 113 Misc.2d 674, 678-80, 449 N.Y.S.2d 629, 633-34 (Civ.Ct. 1982) (condominium regulation establishing security patrol and providing for patrol service in lieu of $25.00 per month assessment not discriminatory to tenants physically unable to serve where service not mandated but an alternative to payment); River Terrace Condominium Ass'n v. Lewis, 33 Ohio App.3d 52, 514 N.E.2d 732 (App. 1986) (association's rule that all units had to be sprayed to exterminate cockroaches was upheld and unit owner was permanently enjoined from refusing access to her unit so that condominium association could spray to exterminate cockroaches); LeFebvre v. Osterndorf, 87 Wis.2d 525, 275 N.W.2d 154 (Ct.App. 1979) (by-law requiring that no unit could be rented without prior written consent of Board of Directors upheld).
Courts have used various standards to review condominium rulemaking. A few courts have reviewed such rulemaking according to constitutional standards. Most courts, however, have reviewed condominium rulemaking by likening the Association to an administrative agency. For a discussion of these various standards, see Note, "Judicial Review of Condominium Rulemaking," 94 Harv.L.Rev. 647 (1981) (hereinafter Note, "Condominium Rulemaking"). As stated previously, however, this Court has concluded that the "business judgment" rule provides a more appropriate analytical framework for judicial review of condominium rulemaking. As the Appellate Division aptly noted below,
[a] two-pronged test has been established to determine whether the Association breached its fiduciary duty: (1) whether its action was authorized by statute or its own bylaws, and, if so, (2) whether the action was fraudulent, self-dealing or unconscionable. The scope of judicial review is limited to these two questions, which are issues of law. As long as the Association acted reasonably and in *667 good faith the courts will not second guess its conduct. [214 N.J. Super. 408, 411 (1986) (citations omitted).]
For a variety of reasons the use of the "business judgment" rule remains preferable to either a constitutional form of analysis or a "reasonableness" analysis that likens a condominium association to an administrative agency. As one commentator has observed,
[use of the business judgment rule] focuses attention on the bad faith of the condominium association not the only source of danger for unit owners, but certainly the most significant one.... [I]t also provides a clear basis for reviewing the procedure of condominium rulemaking; and it permit[s] condominium associations and their counsel to refer to the extensive case law concerning the application of the business judgment rule to corporate decision-making.
[Note, "Condominium Rulemaking," supra, 94 Harv.L.Rev. at 666 (footnotes omitted).]
While the foregoing reasons lend support to our adoption of the "business judgment rule," I am most persuaded that it is the correct standard because it prevents judicial intervention into the private and consensual affairs of condominium associations. This court has expressed a reluctance to interfere in the affairs of membership associations. See Falcone v. Middlesex County Medical Soc'y, 34 N.J. 582, 590 (1961). In condominium associations, the unit owners agree to be bound by the master deed and the association's by-laws. Disputes between the association and unit owners should thus be settled through the mechanisms set forth in the condominium documents, not by the courts. Unnecessary judicial involvement of the sort the Court sanctions today may well result in more lawsuits brought by disgruntled unit owners against the Association and its Directors. Such a possibility may have a "chilling effect" on the participation of unit owners who serve without compensation as the Directors of the owners' association.
These public policy considerations compel the conclusion that there is no justification for a change in the standard the Court adopted in Siller, supra, 93 N.J. 370 for review of condominium board actions. The limited judicial review of association action provided by the "business judgment" rule fosters the ability of *668 private associations to manage their affairs without unnecessary judicial intervention and in a manner consistent with the condominium's organizational documents. There is neither a need, nor a public policy justification, for deviation from the principle that this Court will not second guess the conduct of a board of directors in the absence of a showing which is tantamount to bad faith.
II.
Applying the "business judgment" rule to the facts in this case, I find that the regulation was reasonable and was adopted in good faith.
The powers of the Association arise from the Condominium Act, N.J.S.A. 46:8B-1 to 38 (the "Act"), and from the condominium master deed and by-laws. Each unit owner, when purchasing his or her unit, has the option of determining whether to sign the agreement and thus be bound by the master deed and by-laws. The amended offering and the master deed both expressly provide the Association with the discretion to set parking garage rentals. The amended offering plan contained the following provision:
The garage will be deemed a part of the Common Elements and will be operated and maintained by the Association which shall have the right to lease the operations thereof on such terms and conditions as it shall deem proper. Each Apartment Owner, upon application will be entitled to rent annually from the Association at least one garage space. Rentals for garage space will be established by the Association and shall be payable as the Association shall direct. The rental ... shall not be increased so long as Sponsor is in control of the Association, but the amount actually charged may thereafter vary, as determined and established by the Association. All revenue received by the Association from the garage operation shall be applied as provided by the Association's By-Laws. (Emphasis Added.)
Both paragraphs four and nine of the master deed are consistent with the above provision. Paragraph four of the master deed provides that
[use] of the Common Elements and the rights of the Unit Owner with respect thereto shall be subject to and governed by the ... rules and regulations of the Association. The Association shall have the authority to lease or rent or *669 grant licenses or concessions with respect to the garage.... (Emphasis added)
Paragraph nine is also instructive. It provides as follows:
PARKING AND GARAGE FACILITIES: The parking and garage facilities within the Property shall be part of the Common Elements and, subject to the provisions of the By-Laws, will be operated by the Association which shall have the right to lease all or part of the operation thereof on such terms and conditions as it may determine. Each Unit Owner, upon application, will be entitled to rent annually at least one garage space. Rentals for garage space will be established by the Association and shall be payable as the Association shall direct. All revenue received by the Association from the garage operation shall be applied in accordance with the By-Laws. (Emphasis added.)
Thus, under the amended offering plan and the master deed, parking and garage space were always treated differently from the other common elements, a factor the Court fails to recognize. Further proof of this difference is that a unit owner always entered into a lease with the Association for use of the parking facilities. Typical of such a lease was plaintiff's parking lease with the Association, dated September 7, 1979. That lease provided for an annual term, and read in pertinent part as follows:
3. In the event that the tenants shall either fail to make timely payment of rent or shall intentionally or negligently damage the parking space or otherwise violate any duly adopted rules, regulations and/or policies of Landlord, then the Landlord may cancel this Agreement without any liability for so doing upon five (5) days written notice. ...
4. The Landlord shall have the right to change or modify the rental per annum, thereby modifying the equal monthly installments payable by the Tenants, by giving written notice to the Tenants sixty (60) days prior to said rental modification becoming effective. In the event the Tenants do not agree to said rental modification, the Tenants may terminate this Agreement by giving written notice of their intention to terminate thirty (30) days prior to said rental modification becoming effective.
5. This Agreement cannot be assigned or sublet by the Tenant. After the condominium unit is sold the buyer has the right of first refusal on one of the seller's parking space(s) whether a single space or a tandem space. In such event, buyer will be required to enter into a lease with the Landlord for same.
6. This Agreement shall be deemed to be automatically renewed at the expiration of the term hereof for successive one (1) year periods; provided that either party hereto may terminate this Agreement by giving written notice of its intention not to renew to the other party thirty (30) days prior to the expiration date of the term hereof.
*670 14. If the tenant fails to pay the aforesaid rentals... the Landlord can, at his option and by giving appropriate written notice, TOW THE TENANT'S CAR FROM THE AFORESAID PARKING SPACE OR ANY OTHER PLACE WITHIN THE GARAGE PREMISES.... (Emphasis added.)
In 1981 the Association became aware that certain nonresident owners were charging their tenants parking fees that exceeded the fees charged to the owners by the Association. Accordingly, on June 2, 1981, the Board of Directors unanimously adopted a new schedule of charges for garage rentals that charged higher monthly fees to those occupants of the building who were not unit owners (tenants of nonresident owners). These rates were fixed according to the fair rental value of parking garage spaces in the prevailing Cliffside Park-Fort Lee market. At the same time, the Board of Directors crafted the parking garage rent increase to avoid any hardship, to provide for a transitional period, and to insure that ultimately, if the parking garage facility produced revenues, such revenues would be for the unit owners generally, rather than for specific individuals.
As expressed by the president of the Association, the new parking fee schedules were adopted for the following reasons:
As a result of the non-resident Unit Owner's attempt to commercially exploit the below-market parking rental fee charged by the Association, profits from the parking garage rentals were flowing to individual Unit Owners, instead of the Association, and its members, generally. The economic benefits of owning and operating the parking garage do not run to any individual Unit Owner, but rather to the Association for the good and welfare of all Unit Owners, as is clearly set forth in the Amended Offering Statement, Master Deed and By-Laws.
The Association also adopted the regulation to ensure building security by retaining control of the parking garage and regulate its use. The Association believed that unless regulations were imposed regarding control of parking spaces, nothing would prevent owners or tenants from subletting their parking spaces to individuals not residing in the building. Were such rentals to occur, the Association reasoned, it would be impossible to ensure building security for residents of the complex.
Given these facts, I conclude that the Association had the right to promulgate the parking regulation as authorized by the *671 condominium documents themselves, thus satisfying the first prong of the "business judgment" rule requiring us to determine whether the Association's action was authorized and correctly adopted.[1]
I focus, therefore, on the second part of the analysis, namely, whether the action establishing the parking garage increases was fraudulent, self-dealing, or unconscionable. I agree with the trial court's finding, affirmed by the Appellate Division, that "the increased fee was reasonable and was adopted in good faith." Thanasoulis, supra, 214 N.J. Super. at 412. There is no evidence in the record that the Association, in adopting its regulations, did not act in good faith for the benefit of all unit owners. Moreover, the Board has the right to determine who may park in the parking lot as a proper means of ensuring security within the complex. No one can doubt that the security of the condominium complex is a legitimate concern of the Association. Unlike the majority, I find under the "business judgment" rule that this reason alone is sufficient to sustain the regulation.
I find, as did both the trial court and the Appellate Division, that the Association did not engage in any self-dealing, fraud, or unconscionable conduct that would support a finding of *672 breach of fiduciary duty. The Association's actions were not self-interested, but rather were taken for the benefit and good of the entire condominium community. Absent a finding to the contrary, the "business judgment" rule requires that the Association's actions be given due deference. If the plaintiff, or any other unit owner, feels aggrieved with the actions of the Board, remedies are readily available through the Association's by-laws to effectuate a change, namely, by persuading either the Board, or a sufficient number of unit owners, that the regulations are inappropriate or ill-advised. It is precisely for this reason that the "business judgment" rule has evolved, giving substantial deference to the actions of a condominium Board of Directors.
I reject the further contention that the parking garage fee regulation[2] "improperly converted to the use of all unit owners a property right granted by the master deed to individual unit owners." Thanasoulis, supra, 214 N.J. Super. at 417. There are two reasons that the action of the Board in revising the parking rates does not constitute a "change in a unit," in contravention of N.J.S.A. 46:8B-11[3]. First, the amended offering, master deed, and plaintiff's lease with the Association all specifically provided that the parking fees would be set, modified, and adopted by the Association. Accordingly, there was *673 no change in the master deed or by-laws. The Association simply acted pursuant to the actual authority vested in the Board by the Act and master deed. Secondly, there is no change in the property rights of any party to this action by virtue of the parking rental changes. The Association continues to be the owner of all common elements, including the parking garage, and it has the right to fix parking garage rates. Plaintiff continues to be entitled to one parking garage space. His lease agreement with his tenant expressly provides that his tenant, the occupant of the building, will sign a parking garage lease directly with the Association. In short, there has been no "change" to the plaintiff's unit within the contemplation of N.J.S.A. 46:8B-11.
My application of the "business judgment" rule to the parking-garage regulation leads to the conclusion that the Association acted properly within the scope of its authority in promulgating the regulation, that adoption of the regulation was procedurally correct, and that the Association did not breach its fiduciary duty to the unit owners.
Justices HANDLER and POLLOCK join in this opinion.
For reversal and remandment Chief Justice WILENTZ and Justices CLIFFORD, O'HEARN and STEIN 4.
For affirmance in part, and reversal in part Justices HANDLER, POLLOCK and GARIBALDI 3.
NOTES
[1] The minutes of the Board meeting at which the rule was adopted stated:
Rental application forms shall be amended to include the new rates. After August 1, no apartment lease will be approved by the Board, submitted for approval as provided by paragraph 18 of the Master Deed, unless the increased garage rental rate is specified in any such lease or rental arrangement. Such apartment leases shall specify that the garage rent security deposit and the garage rental itself be paid directly to the Association. All such apartment leasing arrangements shall additionally include a provision that the unit owner (the landlord) will be responsible to the Association for payment of the garage rent should the rentor fail to do so.
[2] The Appellate Division assumed that prior to the new rule "[p]laintiff's practice was to lease an indoor parking space for $25 a month for which he charged his tenant $75 per month." 214 N.J. Super. at 411. Plaintiff has never rented his parking space for $75, nor does the record reflect a desire on his part to do so. The reason plaintiff's lease with his tenant stipulates that the tenant will separately lease the parking space from the Association is that without such a provision the Association would not have allowed plaintiff to rent his unit.
[3] Plaintiff's motion to have this action certified as a class action was denied, without prejudice, by the trial court. In his brief to this court, plaintiff "continues to reiterate his application" for class-action certification. As an appeal as of right by virtue of a dissent in the Appellate Division, R. 2:2-1(a)(2), the only issues before this Court are those that were the subject of the dissent. Accord Brandenburg v. Brandenburg, 83 N.J. 198 (1980). Judge Cohen did not address the class-action question, so the issue is not before us.
[4] Our dissenting colleague is of a view that the principles we discussed in Siller are implicated in this case. See post at 664. However, the issue here is a condominium association's power to alter the property rights of unit owners guaranteed by the Act and the master deed. We do not reach the question of what the appropriate standard of review would be in a case involving an Association's exercise of its authority in a manner consistent with the Act and the master deed.
[5] The Association acknowledged plaintiff's ownership of the parking interest by making him responsible to the Association for payment of the garage rent should his tenant fail to pay. See supra at 654.
[6] The Association notes that the market value of a parking space is $75. Therefore, unit owners who use their spaces, and pay the Association's $25 fee, realize an economic benefit of $50. Through the new rule, the Association expropriates this economic benefit from nonresident unit owners solely because they rent their units.
[1] The majority concludes that in the course of adopting the new parking fee schedule, the Association unilaterally amended paragraph eighteen of the master deed without obtaining approval of seventy-five percent of the unit owners. Accordingly, the Court finds that the Association's exercise of power was unauthorized. N.J.S.A. 46:8B-11. The Court's conclusion that paragraph eighteen was amended is plainly erroneous. Paragraph eighteen, which establishes the procedure unit owners are to follow in order to sell or lease their units, instructs potential lessors or sellers to provide the Association's Board of Directors with certain information, including "a copy of the offer, the name and address of the person(s) to whom the proposed sale, lease or transfer is to be made, and such other information ... as may be required by the Board of Directors." (Emphasis added). The Association's declaration that no leases of units would be approved without a provision requiring the owner's tenant to lease the parking space directly from the Association at the increased rates thus falls squarely within the Association's authority as prescribed by paragraph eighteen.
[2] The dissenting opinion below incorrectly refers to the parking space fee increase as a by-law amendment. 214 N.J. Super. at 413. The action of the Board in question is not a by-law amendment. Rather, pursuant to the authority vested in the board by the Act, master deed and the lease between the plaintiff and the association, the Association simply changed the amount of rental charged for parking garage spaces. There was no change in the master deed or by-laws.
[3] N.J.S.A. 46:8B-11 (Supp. 1987) provides, in pertinent part, as follows:
The Master Deed may be amended or supplemented in the manner set forth therein unless otherwise provided therein. Unless otherwise provided therein, no amendment shall change a unit unless the owner of record thereof and the holders of record of any liens thereon shall join in the execution of the amendment or execute a consent thereto with the formalities of a deed.... | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1916119/ | 542 A.2d 352 (1987)
Janet C. LEE, individually and as Administratrix of the Estate of Nelson L. Lee, deceased, Plaintiff,
v.
A.C. & S. CO., INC., et al., Defendants.
Superior Court of Delaware, New Castle County.
Submitted: May 12, 1987.
Decided: May 12, 1987.
Robert Jacobs, and Douglas B. Canfield of Jacobs & Crumplar, P.A., Wilmington, for plaintiff.
James F. Hammill of McCarter & English, Cherry Hill, N.J., and Robert B. Anderson of McCarter & English, Wilmington, for defendants.
*353 TAYLOR, Judge.
This trial involves the death of a person who was employed for many years as a pipe insulator, whose job involved installation of asbestos products for insulation of pipe against heat and cold. At the time of his death, he had cancer in the lung area as well as in other organs of his body. He had smoked cigarettes for many years.
I
Plaintiff seeks to have an epidemiologist, Dr. Joseph Wagoner, testify as to the probable cause of decedent's disease and death. This epidemiologist is not trained or experienced as a physician. His training and experience relate to the gathering and analyzing of statistical data relating to disease and death. In the gathering of data, he is skilled in examining and identifying physiological conditions appearing on tissue slides and X-rays. His function is to take data obtained from various sources and to develop statistics generated from the data. As an epidemiologist his objective is to determine the statistical prevalence of a particular disease or condition among persons exposed to a known phenomenon. His credentials in the field of epidemiology are impressive.
His proffered testimony does not reflect an examination of slides or X-rays pertaining to the deceased. Rather, his proffered testimony will set forth his opinion as to the probable cause of decedent's cancer and death based on the mass statistical probability for a person who has been exposed to asbestos.
Expert testimony is admitted if the specialized knowledge of the expert "will assist the trier of fact to understand the *354 evidence or to determine a fact in issue". Rule 702, Delaware Uniform Rules of Evidence. In this case, the pertinent issue is whether asbestos exposure was a proximate cause of the illness and death of decedent.
The initial consideration is whether an opinion of a non-physician may be accepted as to the cause of an internal disease or a non-violent death. The answer to this question is found in Mountaire of Delmarva, Inc. v. Glacken, Del.Supr., 487 A.2d 1137 (1984). Mountaire involved a claim for workmen's compensation involving a herniated disk in claimant's lower back. Employer resisted the claim on the ground that when the claimant had obtained this employment, she had failed to inform the employer that she had previously had surgery for a herniated disk. The prior surgery involved a disk located approximately 1½ inches below the present disk herniation. The significant issue was whether a causal connection existed between the concealed prior condition and the condition involved in the present claim. Commenting favorably on the ruling of the Industrial Accident Board that the causal relationship between the two conditions must be supported by medical testimony, the Supreme Court stated:
We consider it fair and reasonable that the employer be required to make such a showing. Thus, proof only that the claimant had an increased risk of a new injury will be insufficient to satisfy the Air Mod [Corporation v. Newton, Del. Supr., 215 A.2d 434 (1965)] analysis. Contra, Chavez v. Lectrosonics, Inc., N.M.Ct.App., 93 N.M. 495, 601 P.2d 728 (1979); Foster v. Esis, Inc., Tenn.Supr., 563 S.W.2d 180 (1978). Instead, the employer must show through medical testimony that there was a causal nexus between an allegedly misrepresented or undisclosed prior physical condition and the subsequent injury.
Mountaire, 487 A.2d at 1141.
Historically, the Supreme Court has held that medical testimony is required in most instances to prove that a person's condition is permanent, Laskowski v. Wallis, Del. Supr., 205 A.2d 825 (1964), and that medical testimony is required to establish the probability that future treatment will be required, Weiner v. Wisniewski, Del.Supr., 213 A.2d 857 (1965). Mountaire, 487 A.2d at 1141, holds that the causal relationship of one physical condition to a subsequent physical condition must be established by testimony of a physician which addresses the causal connection. The Court went further and upheld the Board's rejection of a physician's causation testimony which did not reflect claimant's entire medical history. I conclude that the same reasoning which produced the Mountaire decision requires that any showing of causal nexus between asbestos exposure and decedent's disease and death must be made through medical testimony.
In this case, the epidemiologist's testimony is proffered as alternative independent evidence of causation. Epidemiology has been defined as:
The science dealing with the occurrence and distribution of diseases, especially of epidemic and endemic diseases.
2 Schmidt's Attorneys' Dictionary of Medicine, E-103.
It is also defined as:
The field of science dealing with the relationships of the various factors which determine the frequencies and distributions of an infectious process, a disease, or a physiological state in a human community.
Dorland's Illustrated Medical Dictionary, 499.
Hence, a person who testifies as an expert in epidemiology provides information concerning the frequency and distribution of the occurrence of a particular disease or malady. The focus of the expertise is upon the frequency in which a particular disease is likely to occur within a segment of the population who have lived under a particular condition. The epidemiologist's function does not extend to determination of the physical condition or symptoms of an individual.
Rule 702 of the Delaware Uniform Rules of Evidence permits testimony by a *355 person qualified as an expert by knowledge, skill, experience, training, or education "to assist the trier of fact to determine a fact in issue". The determination of the subject area which the expert can address must be made in the light of the education and experience of the expert. 3 Weinstein's Evidence § 702[04]. Here, the testimony of the epidemiologist is tendered to provide the jury with expert opinion concerning the cause of decedent's illness and death. Plaintiffs objective is that the jury will accept the epidemiologist's testimony, independently of the physician's testimony, as proof that asbestos caused decedent's disease and death even if the jury rejected the causation testimony of plaintiff s physician expert.
As a general proposition, it is recognized that opinions involving diagnosis, cause and effects of disease will be confined to those who are skilled in medical science. 21 Am Jur 2d Expert and Opinion Evidence § 95 at 616. Latent physical conditions and existence of a particular disease and the causation thereof must rest upon the findings and opinion of a trained physician. 31 Am Jur 2d Expert and Opinion Evidence § 97 at 619; 32 C.J.S. Evidence § 546(91) at 333-4. This standard has been applied in matters involving the pathology of disease. Standard Life Ins. Co. of the South v. Strong, 19 Tenn.App. 404, 89 S.W.2d 367, 380 (1936); North Kansas City Memorial Hospital v. Wiley, Kan.Ct.App. Mo., 385 S.W.2d 218, 222 (1964); Pacific Employees Ins. Co. v. Industrial Acc. Com'n., D.Ct.App.Calif., 118 P.2d 334, 339 (1941). It is this standard which the Delaware Supreme Court applied in Mountaire, 487 A.2d at 1141.[1]See also, Peters v. Gelb, Del.Super., 303 A.2d 685, 687 (1973), aff'd, Del.Supr. 314 A.2d 901 (1974).
The Court recognizes that in this case, plaintiff's medical expert, Dr. Susan Daum, has testified that one of the considerations which the medical profession relies in part upon in formulating an opinion of medical causation is statistical information developed by epidemiologists. In fact, in her opinion testimony, Dr. Daum referred to certain epidemiological data concerning the relationship between exposure to asbestos, smoking and lung diseases.
The distinction must be drawn between a medical opinion given by a physician in which the physician considers the patient's medical history, the patient's known symptoms, and X-rays and tests, as well as epidemiological statistics in reaching that opinion and an opinion by an epidemiologist whose area of expertise is limited to disease statistics. The training of the physician permits the physician to focus upon the cause of the individual's disease or death and to reach that opinion based upon all known factors. The epidemiologist, lacking physician's training and experience, must reach his opinion on statistical frequencies and distributions of the disease among groups. Thus, the epidemiologist's opinion lacks the individualized considerations which are essential to a medical determination of causation. I find that evidence of the cause of a disease such as cancer in a particular individual should be the product of those thought processes and considerations which a trained physician would engage in.
To permit the jury to hear and rely on the epidemiologist's opinion that the decedent's disease and death were caused by exposure to asbestos would provide the jury with a basis for deciding causation which is devoid of various factors which reflect the medical history and symptoms of the individual which would enter into a physician's determination of the cause of this person's disease and death. Thus, admitting the epidemiologist's opinion of causation as to the decedent would tend to cause the jury to draw a layman's conclusion about the cause of decedent's disease and death by treating statistical prevalence of a disease as though it was the same as evidence of the cause of this decedent's disease and death a subject which must rest on medical opinion. Thus, the proffered *356 opinion of the epidemiologist would tend to mislead the jury and might induce the jury to misapply the testimony in violation of Delaware law. Rule 403 of the Delaware Uniform Rules of Evidence contemplates that the Court will prevent such result by exercising discretionary power to exclude the evidence. Therefore, applying Rule 403, the testimony of the epidemiologist's opinion of the cause of decedent's disease and death will not be permitted.
II
There remains the issue of whether the epidemiologist's testimony without addressing the cause of decedent's disease and death is admissible. Rule 703 of the Delaware Uniform Rules of Evidence recognizes that an expert may rely on facts and data of a type reasonably relied upon by experts in the particular field.
The Court discussed above the fact that Dr. Daum testified that the medical profession does rely in part upon group statistics developed by epidemiologists. Dr. Daum's testimony concerning the significance of epidemiological data as an ingredient of medical opinion opens the door under Rule 703 to permit the epidemiologist to testify as to his statistical data concerning smoking and exposure to asbestos. This is permitted not as evidence of causation of decedent's disease and death but as an aid to understanding and evaluating the medical opinion of Dr. Daum. The epidemiologist is impressively qualified to testify as to pertinent epidemiological statistics.
Accordingly, the epidemiologist will be permitted to testify concerning epidemiologically developed statistics relating to the frequency and distribution of diseases among groups who have been exposed to asbestos and/or cigarette smoking.
III
In summary, the epidemiologist will not be permitted to state his opinion concerning the probable cause of decedent's disease or death. The epidemiologist will be permitted to state epidemiological statistics concerning groups exposed to asbestos and/or cigarette smoking.
NOTES
[1] The Court notes that physician's testimony is also required in medical malpractice cases. However, the primary purpose in medical malpractice cases is to establish the applicable standard of professional conduct, and, thus, the focus is different than the focus here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1916048/ | 374 Pa. Super. 118 (1988)
542 A.2d 525
John BERMAN, Appellee,
v.
RADNOR ROLLS, INC., Appellant.
Supreme Court of Pennsylvania.
Argued October 29, 1987.
Filed April 20, 1988.
Reargument Denied June 6, 1988.
*123 Audrey L. Jacobsen, Philadelphia, for appellant.
Mark C. Schultz, Norristown, for appellee.
Before CAVANAUGH, BECK and HESTER, JJ.
*124 BECK, Judge:
Plaintiff/appellee John Berman sued defendant/appellant Radnor Rolls, Inc. for personal injuries he sustained while skating at appellant's rink. The jury returned a verdict in favor of plaintiff Berman in the sum of $463,000 but found only 60% of the causal negligence attributable to defendant Radnor Rolls. The trial court molded the verdict by reducing it to $277,800 in accordance with the jury's finding that Berman was 40% contributorily negligent, and assessed delay damages in the amount of $76,395 for a total verdict of $354,195. Appellant Radnor Rolls filed motions for post-trial relief, which were dismissed by the court. This timely appeal followed.
The relevant facts in this case are as follows. On March 26, 1981, John Berman accompanied a group of friends to the Radnor Rolls skating rink. Berman testified that before this occasion he had roller-skated only one other time. Upon arriving at the rink, he rented skates and began skating away from the main rink in an area which was identified as a beginners' area. Berman testified that he skated in the beginners' area for approximately ten to fifteen minutes and then began skating on the main rink. After he had skated around the rink several times, he was bumped by another skater and lost his balance. As a result of losing his balance, Berman was unable to make the turn necessary to remain on the rink. Instead, while trying to regain his balance, he skated through a sixty feet wide opening in the railing which surrounds the rink and went onto a carpeted area adjoining the rink. The opening in the railing through which Berman skated is intended for use by skaters as an entrance to and exit from the rink surface. Berman stated that once he had left the rink surface and was on the adjoining carpeted area, he regained his balance but continued moving at a "reasonable speed." Berman testified that as he moved away from the rink, the floor dropped approximately six inches to a lower level (hereinafter referred to as the drop-off) and he again lost his balance and began heading in the direction of the vending *125 machine area, located approximately fifty feet from the skating area. Berman testified that he regained his balance again and intended to reach out for a vending machine in order to stop himself. However, as he reached for one of the machines, Berman struck his head against a cabinet or shelf which protruded beyond the machines and upon which rested a microwave oven. Berman's head was cut, causing him to bleed, but he was not hospitalized nor did he seek any immediate medical attention.
The next day, Berman's family went to his brother's house for dinner, but Berman, feeling ill, did not accompany them. When the family returned from the dinner, they found Berman on all fours on the floor of his bedroom. Berman's father testified that his son was crawling around the floor making grunting noises and saying only that he couldn't see and thought he was blind. Berman was taken to Lankenau Hospital. His father testified that when he and Berman's mother were permitted to see him, Berman merely stared into space and did not respond when spoken to. Berman's condition improved the following day, but he remained in the hospital for four days before being released. Berman's difficulties continued even after leaving the hospital. Berman's family testified that he had difficulty understanding or recalling things that were said to him. Berman's brother, who owned a landscaping business where Berman had been employed as a laborer, stated that before his head injury Berman had been a reliable worker. Following the accident, Berman developed a weakness on one side of his body and could no longer perform his work. His brother then switched Berman to sales. Berman proved to be extremely unreliable and failed repeatedly to keep appointments with prospective customers. At trial, Berman's expert witnesses testified that he was suffering from mild organic brain dysfunction, with the result that he had and would continue to have problems with memory and learning.
Appellant Radnor Rolls raises five contentions of error, which we consider seriatim. We find that the trial court *126 committed no error, and affirm the judgment entered below.
I. JUDGMENT N.O.V.
Appellant first claims that the trial court erred in refusing to grant its motion for judgment n.o.v. On appeal, we will reverse the trial court's denial of judgment n.o.v. if we find an abuse of discretion or an error of law which controlled the outcome of the case. Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 471 A.2d 891 (1984). We consider the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the verdict winner. Northwest Savings Assoc. v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986).
Appellant presents three arguments in favor of its request for judgment n.o.v. The first two relate to appellant's contention that it owed no duty to appellee and the third relates to appellant's contention that appellee failed to show causation. First, appellant argues that the aspects of the rink's design that appellee alleges were defective and caused his accident the six-inch drop-off between the carpeted area adjacent to the skating floor and the lower level of the rink concourse, the sixty feet wide opening in the rink railing, and the layout of the vending machine area were "known" or "obvious" hazards against which a landowner has no duty to protect his business invitees. In making this "no duty" claim, appellant asserts that rollerskating is one of those activities so generally known to be dangerous that the owner of the premises in which the activity occurs is considered to owe no duty to protect the participant from its hazards. Thus, appellant argues that it is clear as a matter of law that appellee failed to establish a prima facie case against appellant because he failed to establish the existence of a duty and that judgment n.o.v. in appellant's favor is, therefore, appropriate. This argument centers on one form or corollary of the principle of assumption of risk. See Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983).
*127 Appellant also argues that judgment n.o.v. is appropriate because it is clear as a matter of law that appellee failed to establish the existence of a duty on the part of appellant because this type of accident was unforeseeable.
Lastly, appellant asserts appellee failed to establish the additional necessary element of proximate (or legal) causation.
We will consider the substance of only one of these arguments in support of the entry of judgment n.o.v., i.e., that which goes to causation, because we conclude that appellant has waived its arguments that appellee failed as a matter of law to establish the element of duty.
The source of appellant's waiver of its duty theories is found both in its conduct at trial and in its post-trial motions and brief in support thereof. During trial, appellant did not proceed on the theory that it was entitled to judgment as a matter of law on any assumption of the risk or duty theory. For example, appellant moved for a directed verdict on only one theory. It sought a directed verdict on the ground that appellee had failed to submit sufficient evidence of proximate causation to warrant submission of the case to the jury. Appellant did not move for either a compulsory nonsuit or directed verdict on the ground that appellee had failed to establish the existence of a duty.
Of even greater significance is the fact that nowhere in appellant's post-trial motions or supporting brief is there any reference to the theory that appellant did not owe a duty to appellee because of the unforeseeability of this type of accident and that appellant was thus entitled to judgment n.o.v. on that ground.
Moreover, although appellant's post-trial motions do allege error in the trial court's refusal to charge the jury on its assumption of risk theories, nowhere does appellant argue that the trial court should have decided as a matter of law that appellant had no duty under an assumption of the risk analysis, thus entitling it to judgment n.o.v. on that ground. Appellant's sole argument was that the issue of *128 assumption of risk should have been submitted to the jury. If that indeed was error on the part of the trial court, which we find it was not, appellant would be entitled only to a new trial which included a charge on the assumption of risk theory. It would not be entitled to judgment n.o.v.
In this regard, we find a close analogy between this case and the case of Scarborough by Scarborough v. Lewis, 359 Pa.Super. 57, 518 A.2d 563 (1986). In Scarborough, one of the appellants attempted to argue on appeal that the trial court had erred in refusing the entry of judgment n.o.v. on the same two grounds asserted in the instant case, i.e., appellees' failure to establish a prima facie case of negligence by failing to show both the existence of a duty and of proximate causation. The court refused to consider whether the element of duty had been shown because appellant failed to present argument in its post-trial brief on this issue. Id., 359 Pa.Superior Ct. at 62-63, 518 A.2d at 566. In so deciding, the court provided the following authorities, which will also suffice to support our conclusion in the case sub judice:
See generally Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974); Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); see also Commonwealth v. Dessus, 262 Pa.Super. 443, 396 A.2d 1254 (1978) (issue abandoned when not briefed for lower court but raised on appeal as an afterthought); Schneider v. Albert Einstein Medical Center, 257 Pa.Super. 348, 390 A.2d 1271 (1978) (issue waived when raised in post-trial motions but not briefed or argued before trial court); Commonwealth v. Prisznyak, 306 Pa.Super. 137, 452 A.2d 253 (1982) (failure to brief or argue issues raised in post-verdict motions results in waiver of issues on appeal); Equipment Finance v. Toth, 328 Pa.Super. 351, 476 A.2d 1366 (1984) (failure to argue or brief issues raised in post-trial motions results in waiver of issues and would not form basis of appeal to reviewing court); Bell v. City of Philadelphia, 341 Pa.Super. 534, 491 A.2d 1386 (1985) (issue not argued in brief filed in trial court was not preserved for appellate review); Cherry v. Willer, *129 317 Pa.Super. 58, 463 A.2d 1082 (1983); Richardson v. LaBuz, 81 Pa.Cmwlth. 436, 474 A.2d 1181 (1984).
Id. at n. 3. See also Bryant v. Girard Bank, 358 Pa.Super. 335, 517 A.2d 968 (1986) (failure to raise in post-trial motions and/or brief in support thereof grounds for judgment n.o.v. results in waiver of those issues on appeal).
We further note, as did the Scarborough court, that the trial court opinion does not address either of the arguments appellant now raises in support of entry of judgment n.o.v. based on a failure to establish the duty element. As the Scarborough court also found, we conclude that this resulted from appellant's failure to raise these contentions to the trial court, thus depriving the trial court of the opportunity to consider them and depriving us of the trial court's analysis thereof. Id.
Appellant's properly preserved argument in support of entry of judgment n.o.v. rests on the contention that appellee failed to establish that his injuries were proximately or legally caused by any dereliction by appellant. The gravamen of appellant's argument is that since appellee testified that he regained his balance after having confronted both the rink exit and the six-inch drop-off but continued to skate toward the vending machine area, intending to stop himself there, none of the alleged defects in the construction of appellant's property caused appellee's injuries. Rather, appellant argues that appellee's own conduct in continuing to skate toward the vending area was the legal cause of his injuries.
In considering this argument, we are mindful not only of our limited standard of review set forth above, but also that the issue of proximate causation "is normally a question of fact for the jury; the question is to be removed from the jury's consideration only where it is clear that reasonable minds could not differ on the issue." Hamil v. Bashline, 481 Pa. 256, 266, 392 A.2d 1280, 1285 (1978); Anderson v. Bushong Pontiac Company, Inc., 404 Pa. 382, 171 A.2d 771 (1961).
*130 We conclude that this is not one of those exceptional cases wherein the jury should have been deprived of its opportunity to determine the question of proximate causation. The expert testimony produced at trial on behalf of appellee clearly supported the jury's ultimate determination that appellee's injuries were proximately caused by the overall defective design of appellant's facility, including the design of the vending area where appellee was actually injured. Contrary to appellant's assertion, this was not a case where a directed verdict on the ground of lack of evidence of causation was warranted simply because appellee testified that he had regained his balance after confronting some of the obstacles presented by the design of appellant's rink. In fact, the evidence produced by expert testimony was sufficient to raise the issue of whether despite appellee's regaining his balance and continuing his movement, the vending area was defectively designed and that design was a substantial factor in causing appellee's injuries. We note that the jury here fully considered the extent to which appellee himself was causally negligent, pursuant to a proper comparative negligence instruction by the trial court, and allocated forty percent of the causal responsibility to appellee. This we find to be a reasonable result, clearly supported by competent evidence of record. Appellant is not entitled to entry of judgment n.o.v. on this ground.
II. NEW TRIAL
Appellant also alleges several grounds in support of its request for a new trial. They are, summarily stated, that the trial court committed reversible error in refusing to charge the jury on the doctrine of assumption of risk, in delivering a flawed proximate causation instruction, and in admitting photographic evidence of the design of another skating rink.
1. Assumption of the Risk Points for Charge
Appellant submitted points for charge, all of which were refused by the trial court, outlining two basic and distinct *131 theories of assumption of risk. The first is that which we have set forth above in our discussion of appellant's request for judgment n.o.v., which centers on the limitations on a possessor of land's duty to protect business invitees.[1] The limitation on which appellant relies relieves a possessor of land of any duty to protect an invitee against "known" or "obvious" hazards existing on the land. Carrender v. Fitterrer, supra. As we have stated above, appellant argues that all of the characteristics of appellant's premises that appellee alleges to have been defective and the cause of his injuries were known by or obvious to appellee and that, therefore, appellant had no duty to protect appellee against them. As a corollary to this argument, appellant also argues that appellee was injured as a result of certain hazards inherent in the activity of roller skating, against which appellant had no duty to protect appellee. We shall refer to these as appellant's "no duty" arguments. Lastly, appellant argues that appellee's testimony established that he was in fact aware of the six-inch drop-off, the wide rail opening, and the layout of the vending machine area, and knew that he was unskilled as a skater, yet voluntarily chose to skate at Radnor Rolls and thus encounter these hazards. This, appellant contends, constituted sufficient evidence of appellee's own subjective knowledge of the risks involved to warrant submission of the defense of assumption of risk to the jury.
These two concepts one, that a possessor of land has no duty toward a business invitee to guard him against obvious dangers or the risks of an activity generally known to be dangerous, and two, that plaintiff assumed the risk of his injuries by voluntarily encountering a known danger have often been considered to be simply two different types of the defense of assumption of the risk. Recently, however, courts have clarified that the first concept, the "no *132 duty" concept, is distinct from the defense of assumption of the risk. See Bowser v. Hershey Baseball Assoc., 357 Pa.Super. 435, 516 A.2d 61 (1986). The "no duty" concept involves a finding that the defendant had no duty to the plaintiff and, therefore, was not negligent. The defendant is not liable regardless of whether defendant could successfully raise the assumption of the risk defense. In the second category, the defendant owed a duty but may be relieved of liability because the plaintiff assumed the risk. We will examine the way in which these two concepts are conceptually different, involving as they do different legal standards, different evidence, and different burdens of proof. Although both concepts have been classified as species of assumption of the risk, for purposes of clarity it would be preferable to view the first concept as the "no duty" theory and the second as the "assumption of the risk defense".
Cases in which the defendant is found to have no duty toward the plaintiff typically involve a possessor of land defendant and a business invitee plaintiff. Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983); Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978); Bowser v. Hershey Baseball Assoc., 357 Pa.Super. 435, 516 A.2d 61 (1986). These cases establish that a possessor of land has no duty to protect a business invitee against "known" or "obvious" hazards. For a danger to be "known" to the invitee, it must "not only be known to exist, but . . . also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated." Carrender v. Fitterer, 503 Pa. at 185, 469 A.2d at 124 (quoting Restatement (Second) of Torts § 343A comment b). A danger is deemed to be "obvious" when "both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment." Id., 503 Pa. at 185, 469 A.2d at 123 (quoting Restatement (Second) of Torts § 343A, comment b). Examples of obvious hazards are clearly visible patches of ice, Carrender v. Fitterer, uneven steps, Villano v. Security *133 Savings Assoc., 268 Pa.Super. 67, 407 A.2d 440 (1979), and (for someone attending a baseball game) the possibility of being hit by a wayward baseball. Bowser v. Hershey Baseball Assoc.; Jones v. Three Rivers Management Corp. See also Ferencz v. Milie, 517 Pa. 141, 535 A.2d 59 (1987) (evidence that ice patches may have been known to or discoverable by defendant possessor of land but not known by or obvious to plaintiff invitee gives rise to jury question as to whether such hazards were "obvious" or "known" hazards); Malinder v. Jenkins Elevator Co., 371 Pa.Super. 414, 538 A.2d 509 (1988) (risk of calling elevator by tilting one's head into elevator shaft is obvious and known hazard).
"No duty" cases, therefore, apply to a particular plaintiff/defendant relationship (e.g. business invitee/possessor of land), involve an objective as well as subjective standard for judging the plaintiff's appreciation of the risk, and place the burden of proof on the plaintiff since the duty of the defendant is an element of plaintiff's prima facie case.
As we will explain more fully hereinbelow in connection with our discussion of the applicability of the defense of assumption of the risk to the instant case, the precise status under Pennsylvania law of some forms of the doctrine of assumption of the risk is presently unclear. Nonetheless, the "no duty" concept, particularly as it is manifest in a factual situation like that before us today, unquestionably remains as a viable doctrine. See Carrender v. Fitterer; Malinder v. Jenkins Elevator Co.
In contrast to the "no duty" theory, the defense of assumption of the risk requires that the defendant show that the plaintiff was "subjectively aware of the facts which created the danger and . . . must have appreciated the danger itself and the nature, character and extent which made it unreasonable." Crance v. Sohanic, 344 Pa.Super. 526, 530, 496 A.2d 1230, 1232 (1985), quoting Weaver v. Clabaugh, 255 Pa.Super. 532, 388 A.2d 1094 (1978). The plaintiff's encountering of the risk must also have been voluntary. Marinelli v. Montour R.R. Co., 278 Pa.Super. *134 403, 420 A.2d 603 (1980); Restatement (Second) of Torts, § 496E, comment c (1977). These two requirements are summed up in the rigorous standard enunciated in Fish v. Gosnell, 316 Pa.Super. 565, 578, 463 A.2d 1042, 1049 (1983): "Preliminary and deliberate conduct done with an awareness of the specific risks inherent in the activity is a proper basis for implying assumption of the risk."
Assumption of the risk contrasts with "no duty" cases in that assumption of the risk requires that the plaintiff subjectively understand the risk. "No duty" cases find a defendant not liable if a reasonable person in the position of the plaintiff would have recognized the danger, in addition to finding no liability where the plaintiff did in fact subjectively appreciate the danger. Assumption of the risk is an affirmative defense, to be pleaded and proved by the defendant, Restatement of Torts (Second) § 496G, rather than as a part of plaintiff's prima facie case. Assumption of the risk is applicable in a wide variety of situations, not just in suits between parties in some type of special relationship.
It is this form of the doctrine of assumption of the risk that has come under increasing attack in recent years, particularly in states like Pennsylvania where a system of comparative negligence has been enacted. See Malinder (Beck, J., dissenting). The basis for the attack on the continued use of the defense of assumption of the risk, importing as it does a complete bar to plaintiff's recovery, is the perceived intent of the legislature in enacting the Comparative Negligence Act, 42 Pa.Cons.Stat.Ann. § 7102 (Purdon 1982). It has been argued that in enacting a comparative negligence scheme that abolishes the prior complete and automatic bar to a plaintiff's recovery that formerly resulted from a finding of contributory negligence, the legislature also clearly intended to eliminate the total bar of the defense of assumption of the risk where the plaintiff's conduct is unreasonable (i.e. negligent) and, therefore, the defense strongly resembles and even overlaps with contributory negligence. Rutter v. Northeastern Beaver City *135 School District et al., 496 Pa. 590, 614-16 n. 6, 437 A.2d 1198, 1210-11 n. 6 (1981) (plurality); Malinder, supra, 371 Pa.Super. at 429-443, 538 A.2d at 521-23 (Beck, J., dissenting).
At the present time, a majority of the Supreme Court has not yet directly addressed the issue of whether this form of assumption of the risk, as an affirmative defense that completely bars the plaintiff's recovery, remains a part of a proper negligence analysis. The most recent statement of the Supreme Court on the issue of the effect of the Comparative Negligence Act on the defense of assumption of the risk where "it overlaps and coincides with contributory negligence" expressly left the question open. Carrender v. Fitterer, 503 Pa. at 188-89, 469 A.2d at 125. This Court's most recent en banc holding regarding assumption of the risk concerned only the "no duty" form of the doctrine and also expressly did not consider or decide the effect of the Comparative Negligence Act on the defense of assumption of the risk. Malinder, supra, 371 Pa.Super. at 428, 538 A.2d at 516.
Thus, we must take our guidance on this issue, to the extent it exists, from those decisions of various panels of this Court that have directly commented on the issue of the post-comparative negligence applicability of the defense to a plaintiff whose conduct could also be characterized as contributory negligence. While we have found no such case where a panel of this Court has actually held that the defense survives the Comparative Negligence Act and is applicable to the case before the Court, we are heavily influenced by the statement appearing in Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1043 (1983), to the effect that the defense survives. Id., 316 Pa.Superior Ct. at 576-77, 463 A.2d at 1048. We note that the Fish Court did not actually apply the defense to the facts of the case before it, and we therefore conclude that this statement is technically dictum. Thus, the status of the defense under Pennsylvania law after the enactment of the Comparative Negligence Act remains unclear. Lacking any definitive holding on the *136 issue and in the interest of maintaining consistency in our law and in the guidance we provide to the bar, we are forced to conclude that we should proceed to analyze whether the defense of assumption of the risk is fairly raised on the facts of the case sub judice.
Since the Comparative Negligence Act abolished the complete bar to recovery formerly resulting from a finding of contributory negligence in any degree and yet we feel bound to analyze whether in this case the assumption of the risk defense might still operate as a complete bar to appellee's recovery, it is critically important to distinguish between contributory negligence and assumption of the risk. In so doing, we point out that it is precisely the difficulties that inhere in drawing these close distinctions that argue forcefully for the abolition of the defense. See Rutter, supra; Malinder, supra (Beck, J., dissenting).
The Fish v. Gosnell Court has provided us with a credible analysis of the distinguishing characteristics of assumption of the risk. Under that analysis, a plaintiff who acts under circumstances in which he knows or a reasonable person would know that what he is doing is dangerous is merely negligent. His conduct is properly analyzed under the Comparative Negligence Act. Fish v. Gosnell, 316 Pa.Super. at 578-79, 463 A.2d at 1049. If he is less than 50% causally responsible for the resulting injury, he will still recover, at least partially.
The assumption of the risk defense, on the other hand, requires more. Only if a plaintiff "`fully understands' the specific risk, `voluntarily chooses' to encounter it, `under circumstances that manifest a willingness to accept it'", is he said to have assumed the risk. Id., 316 Pa.Superior Ct. at 576-79, 463 A.2d at 1048-49 (quoting Marinelli v. Montour R.R. Co., supra). As the Fish Court stated, the rationale for depriving the plaintiff of recompense for his injuries is as follows:
[T]he essence of the assumption of risk defense is not fault but that the plaintiff changed his position. Before the injury, he intelligently acquiesced in a known danger *137 and abandoned his right to complain, but afterward, seeks to assert the claim he had waived. See Jones v. Three Rivers Management Corp., supra. To imply such waiver from conduct and circumstances alone can be a source of `misapprehension and confusion' and `frequent misapplication.' W. Prosser, Law of Torts, at 445 (4th ed. 1971). Aware of this danger, our Court announced, even before comparative negligence, that it would take a `restrictive attitude' toward the circumstances from which the assumption of risk defense might be implied. Fahringer v. Rinehimer, 283 Pa. Superior.Ct. 93, 98-99, 423 A.2d 731, 734 (1980). Preliminary and deliberate conduct done with an awareness of the specific risks inherent in the activity is a proper basis for implying assumption of the risk. Conduct close in time and place to the accident, on the other hand, while it may contain an element of voluntary risk-taking, does not demonstrate a deliberate abandonment of the right to complain, but rather is better judged by its reasonableness, that is, by negligence principles.
Id., 316 Pa.Superior Ct. at 578-79, 463 A.2d at 1049 (emphasis added).
We now turn to the application of these various concepts of "no duty" and the assumption of the risk defense to the facts of the case at bar. We first consider appellant's "no duty" argument, i.e., whether the trial court erred in refusing to charge the jury that a possessor of land owes no duty to protect a business invitee against obvious or known dangers and that if the jury found that the dangers that caused appellee's injuries were obvious or known to appellee, its verdict must be in favor of appellant.
A danger is obvious when "both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment." Carrender v. Fitterer. The condition of the rink the wide entrance, the six-inch drop-off, the placement of the vending machines was apparent. None of these conditions was concealed in any *138 way. However, we cannot say and there was no evidence to suggest that the risk posed by these conditions would be recognized by a reasonable person in the position of appellee, i.e., a skater alternately losing and regaining balance while travelling at a good rate of speed. A six-inch step may be innocuous to the reasonable person walking toward it, who will have the step in view for some time before actually encountering it. See Villano. However, if the same reasonable person were moving toward the step at a faster pace, fighting for balance on roller-skates, he would not have an adequate opportunity to recognize the danger the step poses to him.
In addition, appellant asserts that the evidence established that the dangers involved were actually known to appellee even if they were not obvious to any reasonable person in appellee's position. However, although appellant states that appellee also subjectively recognized the danger posed by the rink, appellant fails to cite any evidence supporting this assertion. We therefore find that appellant has not established that there was sufficient evidence that the danger encountered by appellee was either "known" or "obvious" so as to warrant the trial court charging the jury on this issue.
Appellant also argues that the jury should have been instructed that appellant would be relieved of any duty toward appellee if the jury concluded that appellee was injured as a result of a danger that is a normal incident of rollerskating, since appellant had no duty to protect against such normal incidents.
We find that the trial court was correct in concluding as a matter of law that the generally known dangers of roller skating do not include the kind of danger appellee encountered in this case.[2] The trial court relied on *139 Oberheim v. Pa. Sports and Enterprises, 358 Pa. 62, 55 A.2d 766 (1947), in dismissing appellant's claim on this point and we agree that this case controls. The plaintiff in Oberheim was attempting to enter the ice skating rink when she fell on a roughened area of ice at one of the *140 entrances. The uneven condition of the ice surface had been created by a mixture of dirt, paper, and cigarette butts frozen into the ice, which maintenance people at the rink had collected and left at that location after cleaning the surface of the rink proper. Plaintiff won a jury verdict in the court below. On appeal, the court dismissed appellant ice skating rink's contention that its motions for judgment n.o.v. and for a new trial should have been granted on the ground that the Mrs. Oberheim assumed the risks attendant to ice skating:
The appellant's contention that Mrs. Oberheim voluntarily assumed the risk of injury and is therefore barred from recovery is equally without merit. It will readily be conceded that an invitee of an ice skating rink assumes the ordinary risks incidental to the sport, such as the risk of injury from falling because of imperfections and inequalities on the surface of the ice reasonably to be anticipated. (Citation omitted). But, the invitee is not to be held to have assumed risks arising beyond the skating area from dangerous conditions of entrance and exit originating from other than the ordinary and foreseeable possible effects of skating on the ice. Here, likewise, the fact that Mrs. Oberheim may have known that an irregular and rough area existed in the passage way to the rink does not impel a legal conclusion that she assumed the risk of her injury.
Id., 358 Pa. at 68, 55 A.2d at 769. See also McMillan v. Mountain Lauren Racing Inc., 240 Pa.Super. 248, 367 A.2d 1106 (1976).
It is true that defendants have no duty to protect roller skaters against the typical risks of roller skating, such as falling down or being bumped by other skaters. These are risks general to skating at any rink. In contrast, the evidence here did not suggest that appellee's accident was caused by a risk general to skating, but rather that it was caused by a risk specific to the Radnor Rolls rink, i.e., the 60-foot wide opening in the rink and the six-inch drop-off.
*141 The initial incident in the string of causation leading up to appellee's accident was his losing his balance after being jostled by another skater. This is a common enough occurrence on the skating rink, and is a risk any skater may be said to be aware of when taking the floor. However, the design features peculiar to Radnor Rolls contributed significantly to the nature and severity of appellee's resulting injury. Had there not been such a wide opening in the railing around the rink, appellee might well have been able to stop himself against the railing. Had there not been a six-inch drop-off merely eight feet from the rink surface, Berman would not have been propelled with such force into the vending machine area, where he hit his head against a shelf. While charged with knowledge of the general risks of skating, a skater is not charged with knowledge of how the risk to him is increased above that caused by normal skating by the physical layout of the building. We find that the trial court did not err in denying appellant's motion for a new trial on these grounds.
We now analyze appellant's claim that the trial court erred in refusing to instruct the jury on the defense of assumption of the risk. Appellant argues that sufficient evidence was offered at trial to have submitted the issue of assumption of risk to the jury. Appellant contends that appellee's own testimony demonstrated that he was aware of the six-inch drop-off, the presence of the vending machines, and the possibility of falling while skating. Appellant claims that appellee's initial decision to skate despite these factors was assumption of the risk. Appellant also finds assumption of the risk in the fact that during the course of appellee's progress toward the shelf on which he hit his head appellee in fact regained his balance and could have stopped, yet chose to continue skating. We disagree. We find this evidence insufficient to require that the jury be instructed on assumption of the risk.
Appellee's choosing to skate despite his general awareness that roller-skaters occasionally fall, that vending machines were located approximately fifty feet from the skating *142 rink, and that the floor surrounding the rink dropped off six inches a short distance from the rink does not constitute "preliminary and deliberate conduct done with an awareness of the specific risk" which caused his injury, i.e., the risk of losing control of his skates, shooting out over the drop-off, and running into the protruding shelf in the vending area. No evidence was introduced to show that appellee fully understood the danger the design features of the rink posed to him. In our view, it would be only the unusually imaginative and farsighted skater who would fully understand the danger posed by such factors in combination until the moment he or she was travelling toward the shelf.
Equally meritless is appellant's argument that appellee's failure to stop himself in one of the few moments in which he regained his balance during his careening progress toward the vending machine area demonstrates assumption of the risk. The period of time in which appellee's journey from the skating floor to the shelf on which he hit his head took place was too short to permit him to make an intelligent and voluntary decision to stop or not. This is conduct "close in time and place to the accident" rather than the "preliminary and deliberate conduct" required for assumption of the risk. As the Fish v. Gosnell Court stated in analyzing facts generically similar to these,
Yet these last minute decisions, of the sort that might be heavily influenced by an erroneous guess as to . . . speed. . . are not those that indicate an intelligent acquiescence to the possible life-or-limb consequences. They are not made "under circumstances that manifest a willingness to accept" the risk.
Fish v. Gosnell, 316 Pa.Super. at 578-79, 463 A.2d at 1049.
We therefore find that the trial court was justified in refusing to submit the issue of assumption of the risk to the jury. Marinelli v. Mountour R.R. Co., 278 Pa.Super. 403, 420 A.2d 603 (1980).
*143 2. Causation in Fact
Appellant further contends that the trial court erroneously failed to instruct the jury on the issue of causation in fact. When evaluating a claim that the trial court erroneously instructed the jury, the charge must be viewed in its entirety. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984); Olsen v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985). "Unless the charge as a whole can be demonstrated to have caused prejudicial error, we will not reverse for isolated inaccurracies." Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984). Moreover, a trial court has wide latitude as to the manner in which it charges the jury. Any particular language may be used as long as it fully and adequately conveys the applicable law. Seewagen v. Vanderkluet, 338 Pa.Super. 534, 488 A.2d 21 (1984).
The trial court's charge to the jury on the issue of causation was as follows:
Now I said to you before that one of the essential elements of the plaintiff's claim and of the defendant's defense of contributory negligence is what is known as legal cause. It is not enough for someone simply to be negligent in a vacuum in the abstract. That negligence must be the legal cause of the accident. To illustrate what I mean, let's suppose you're driving your car down the highway. And you are two hundred feet from the intersection. And you go over the center line of the highway and drive in the direction of oncoming traffic. But there's no oncoming traffic there, but there's an accident that happens up at the intersection. By going over the center line of the highway, your negligence you are negligent. But did your negligence cause the accident up at the intersection? Of course not. Your negligence cannot be considered under those circumstances to be a substantial factor in bringing about the intersection accident. Your negligence had absolutely nothing to do with that accident. And therefore, because your negligence is not a legal cause, that is a substantial factor in *144 bringing about that intersection accident, nobody can say that you are responsible, that is liable, for the damages caused at the intersection accident. In this case, the plaintiff has the burden of proving that the defendant was negligent in the manner in which the skating rink was designed and controlled and that such negligence was a legal cause of the accident. . . . In order for negligence or contributory negligence to be a legal cause of an accident, it merely must be a substantial factor in bringing about the accident. . . . A substantial factor is a real factor, not an imaginary one or a fanciful one, but simply a real factor in bringing about the accident that occurred in this case.
N.T., 9/26/86, pp. 79-81.
We find this instruction to be sufficient. While the court did not explicitly define the term causation-in-fact, the example it gave of a car crossing the center line of the road embodies the essentials of the concept. This example correctly conveyed the necessary factual or commonsensical meaning of the causation requirement, i.e., that it must be shown that "but for" the defendant's negligent act or failure to act, the plaintiff's harm would not have occurred. Given the traditional deference given to a trial court's choice of language in conveying to the jury often complex legal theories in an effort make the jury truly understand them, we find no error in this trial court's decision to eschew confusing terminology and instead to instruct via example.
The cases appellant cites do not mandate a contrary result. Appellant seeks to demonstrate that Pennsylvania law requires a separate instruction expressly regarding but-for causation. We are aware of no Pennsylvania precedent containing this requirement. In fact, the better view regards causation-in-fact as simply part of the overriding requirement that the defendant's conduct be a substantial factor in bringing about the harm, as to which the trial court here fully instructed the jury. See Pachesky v. Getz, *145 353 Pa.Super. 505, 510 A.2d 776 (1986); Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970) (plurality).
3. Admission of Photograph
Appellant next claims that it is entitled to a new trial on the ground that the trial court erroneously admitted into evidence a photograph taken at another roller rink that showed a smaller entrance/exit opening than that existing at Radnor Rolls. Appellant objected to admission of this photograph on the basis that it was not necessarily indicative of industry custom. Appellee requested admission of the photograph for the purpose of aiding the jury in understanding and evaluating the testimony of his expert witness regarding roller rink construction. The trial court admitted the photograph with the following instruction to the jury:
I want to caution you very specifically that the mere fact that there is in evidence a photograph of another roller skating rink not designed in the same manner as the roller skating rink in this case is not evidence which will permit you to conclude that the Defendant in this case was negligent or at fault for failing to design or have constructed his roller skating rink in the same manner as the photograph on Plaintiff's Exhibit 4. The only purpose for which P-4 is being offered and shown to you is so that you can compare the Radnor Rolls rink with another rink and receive some idea of what a rink would look like with a smaller opening off the roller skating surface.
N.T. 9/23/86, p. 152.
The admission of a photograph is a matter within the sound discretion of the trial court, Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970); Fahringer v. Rinehimer, 283 Pa.Super. 93, 423 A.2d 731 (1980). A new trial will not be granted unless there has been a manifest abuse of discretion in admitting the evidence. Eves v. Tritch, 162 Pa.Super. 443, 58 A.2d 364 (1948).
We find that the trial court did not abuse its discretion in the case sub judice. Even assuming arguendo that it would have been improper to admit the photograph for the *146 purpose of establishing industry custom, a question we need not decide here, the court did not do that. Instead, the court admitted the photograph solely for the purpose of assisting the jury in visualizing a smaller rink opening, and gave the jury explicit instructions to that effect. "It is elementary that evidence admissible for one purpose is not rendered inadmissible because it would be inadmissible for another purpose and because the jury might improperly consider it for that other purpose." Bialek v. Pittsburgh Brewing Company, 430 Pa. 176, 185, 242 A.2d 231, 235 (1968). It is the purpose for which the court did admit the evidence that we evaluate. We find that the trial court did not abuse its discretion in admitting the photograph to aid the jury in visualizing a different kind of rink opening.
III. DELAY DAMAGES
Appellant's final contention is that the trial court committed reversible error in assessing delay damages without regard to the Pennsylvania Supreme Court's opinion in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986). In that opinion, the Supreme Court suspended the effect of the mandatory provisions of the delay damages rule assessing damages against defendants without regard to fault, and instituted in their stead a system of evaluating the defendant's responsibility for the delay and assessing damages proportionately.
Appellant's claim that Craig applies to this case is completely meritless, for reasons stated in the opinion itself:
[W]e direct that those mandatory provisions of Rule 238 which assess delay damages against defendants without regard to fault are suspended as of this date for all cases now pending in the courts of this Commonwealth . . .
[T]he suspension of the mandatory provisions of Rule 238 is to be given prospective effect only. Those parties whose cases are now in the appellate or post-trial process, who have not asserted attacks on the Rule 238 aspect of the damage award, may not now assert such challenges.
Id., 512 Pa. at 65, 515 A.2d at 1353 (emphasis added). The Craig opinion was filed on October 8, 1986. Thus, under *147 the express terms of the opinion, the Supreme Court suspended the effect of the mandatory provisions of Rule 238 as of October 8, 1986. Craig clearly has no effect on judicial action prior to that date. Applying these clear principles to the instant case, we find Craig inapplicable here. All of the relevant events in this case took place prior to October 8, 1986. The verdict in the case was rendered on September 26, 1986. Post-trial motions were filed on October 1, 1986. Delay damages were assessed by order dated October 7, 1986. At no time prior to the filing of Craig did appellant raise any challenge to the Rule 238 aspect of the damage award. Thus, Craig did not require a fault-finding hearing on the delay damages issue in this case.[3]See Smith v. Barker, 368 Pa.Super. 472, 534 A.2d 533, 537 (1987) (where verdict was rendered and petition for delay damages was filed prior to filing of Craig opinion, Craig was inapplicable). Judgment affirmed.
CAVANAUGH, J., concurs in the result.
NOTES
[1] As is noted infra, appellant's challenge to the judge's refusal to charge on assumption of risk relates only to appellant's demand for a new trial and not to appellant's demand for judgment n.o.v. At no time prior to appeal did appellant argue that because appellee assumed the risk, appellant was entitled to judgment as a matter of law.
[2] Appellee argues that the question of whether the risk or danger that ultimately resulted in appellee's injury was a normal incident of skating is always an issue of law to be decided by the court. Thus, appellee asserts that the fact that appellant waived its argument that this theory entitles appellant to judgment n.o.v. (i.e., as a matter of law) precludes appellant's argument that it deserves a new trial in which this issue would be submitted to the jury. Appellee cites no case that so holds, but relies instead on the fact that numerous cases involving this type of issue were in fact decided by the court as a matter of law. See, e.g., Rauch v. Pennsylvania Sports and Enterprises, Inc., 367 Pa. 632, 81 A.2d 548 (1951).
The fact that these cases were decided as a matter of law does not clearly indicate to us that in every case the court makes this decision. In fact, we have found that there is at least one case in which such an issue appears to have been determined to present a jury question, thus requiring a new trial as opposed to judgment as a matter of law. See Amon v. Shemaka, 419 Pa. 314, 214 A.2d 238 (1965) (plurality).
We believe the better analysis is as follows. Whether there is sufficient evidence to enable a jury reasonably to conclude that the risk that produced the injury was a normal incident of skating that plaintiff is charged with knowledge of, as defined by existing case law, is a question of law. Here, for example, the trial court correctly concluded as a matter of law that there was not sufficient evidence to submit the question to the jury.
There are also cases where the evidence so clearly shows that the risk was a normal incident of the activity involved that the issue is decided as a matter of law. See, e.g., Smollett v. Skayting Development Corp., 793 F.2d 547 (3d Cir. 1986) (applying Virgin Islands law).
But it is equally likely that there would be a case where the evidence was such that a jury could equally reasonably conclude that the risk that produced the injury either was a normal incident or was not. In such a case, where the facts are not similar enough to those presented in any decided case so as to make the resolution clear as a matter of law, the issue is for the jury pursuant to an adequate charge on the legal standard that will guide its decision. See Ferencz v. Milie, supra, 517 Pa. at 151, 535 A.2d at 64 (court concludes that a jury question was raised as to whether a particular hazard was obvious or known to plaintiff and thus not within defendant's duty of protection); Carrender v. Fitterer, 503 Pa. at 185, 469 A.2d at 124 (question of whether hazard is obvious or known is for jury). Cf. Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978).
In any event, the question of whether this issue is ever one that might warrant submission to the jury is not one that we must actually decide today, since here we determine that, as a matter of law, there was insufficient evidence that appellee's injuries were caused by a normal incident of skating to warrant submission to the jury. Considering the present unclarity in our law regarding this issue, we cannot in fairness find that appellant has completely waived appellate review of the trial court's decision on the "normal incident" theory simply by moving for a new trial on the theory as opposed to moving for judgment n.o.v.
[3] We note that although the trial judge correctly did not feel bound to apply Craig to this case, nevertheless in the interests of justice he reduced the award of delay damages to appellee after reviewing the history of the litigation and concluding that nine months of the delay in resolving the case was the fault of appellee. Appellee has not appealed this reduction in delay damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1970663/ | 258 A.2d 455 (1969)
Naomi Blanche TAYLOR, Appellant,
v.
D. C. TRANSIT SYSTEM, INC., a corporation, Appellee.
No. 4735.
District of Columbia Court of Appeals.
Argued September 15, 1969.
Decided November 7, 1969.
H. Alan Young, Washington, D. C., with whom William R. Lichtenberg and Joseph Luria, Washington, D. C., were on the brief, for appellant.
*456 David L. Hilton, Washington, D. C., with whom Anthony E. Grimaldi, Washington, D. C., was on the brief, for appellee.
Before FICKLING, GALLAGHER and NEBEKER, Associate Judges.
FICKLING, Associate Judge:
Appellant appeals from an order granting appellee's motion for summary judgment.
The appellant filed a complaint for personal injuries suffered in a fall. She alleged that appellee "negligently, carelessly and unlawfully permitted an amount of ice, snow or water to accumulate upon the step" of one of its Minibuses, which caused her to slip and fall. The appellee denied negligence.
The only evidence presented at the hearing on the motion was appellant's deposition in which she testified that she could not "say exactly" what made her slip but that "it must have been the ice and snow"; that she "noticed" that the steps were slippery after she fell, and that "part of the step looked rounded." Appellant contends that this testimony alone made out a prima facie case, and that a jury should be allowed to hear the testimony of the bus driver "who knew of the accident" and a Transit inspector who, after the accident, "almost fell too."
In Brooks v. Capital Transit Company, 105 U.S.App.D.C. 48, 263 F.2d 494 (1959), the plaintiff also fell on bus steps. She testified that "they looked a little shiny"; "I had a feeling that there was something slippery on the steps"; and "it felt like my foot was sliding in something." The case was dismissed at pretrial and affirmed on appeal.
In Ruffin v. Trans-Lux Theatre, D.C. Mun.App., 156 A.2d 678 (1959), another slip and fall case, plaintiff testified that the floor "was slick"; "it was either icy or glassy"; "it looked like glass and was very shiny and slick." One of her witnesses corroborated this testimony. There was also testimony that the floors had been worked on the morning of the accident. Nevertheless, the court held "that plaintiff's evidence viewed in its most favorable light, was insufficient to make out a prima facie case." 156 A.2d at 680.
We feel that both of these cases control the case at bar and, therefore, it was not error to grant the motion for summary judgment. Certainly, it is not the purpose of summary judgment to deny parties a right to trial if they really have issues to litigate. Aderholt v. Lewis, D.C.App., 187 A.2d 488, at 489 (1963). But where, as here, there are no factual issues, no doubts to be resolved, the movant is entitled to judgment as a matter of law.
The allegation that the bus driver and inspector had some information concerning the accident, without any elaboration as to what their testimony might be, does not distinguish this case in our view. Appellant certainly had ample opportunity to offer the trial court this information, either at or prior to the hearing on the motion for summary judgment.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263989/ | 886 A.2d 721 (2005)
Rebecca TETER, Petitioner
v.
WORKERS' COMPENSATION APPEAL BOARD (PINNACLE HEALTH SYSTEM), Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs September 30, 2005.
Decided November 17, 2005.
*722 Michael J. Pykosh, Camp Hill, for petitioner.
Christopher D. Pavuk, Wormleysburg, for respondent.
BEFORE: McGINLEY, Judge, LEAVITT, Judge, and FLAHERTY, Senior Judge.
OPINION BY Senior Judge FLAHERTY.
Rebecca Teter (Claimant) petitions for review from a decision of the Workers' Compensation Appeal Board (Board) which affirmed the decision of the Workers' Compensation Judge (WCJ) granting Claimant's claim petition for a limited time period. We affirm.
On July 27, 2000, Claimant alleges that she sustained a back injury while in the course and scope of her employment with Pinnacle Health System (Employer). Claimant filed a claim petition against Employer and its workers' compensation carrier, Consolidated Risk Services (collectively, Respondents), seeking full disability benefits from July 27, 2000 and continuing, as well as payment of medical expenses and counsel fees. Respondents denied all the material allegations.
On February 3, 2003, the WCJ granted Claimant's claim petition and ordered Employer to pay Claimant's compensation for three days that she missed from work, pay Claimant's health care liens, litigation costs and medical expenses into the future. Respondents appealed to the Board. On September 24, 2003, the Board remanded the decision for the WCJ. The Board directed the WCJ in pertinent part as follows: "On remand, the Judge is instructed to summarize Dr. Schmidt's testimony and explain the basis for his credibility determinations with regard to the medical expert testimony, based on the existing record." Board Decision, September 24, 2003, at 6.
On August 18, 2004, the WCJ confirmed its decision of February 3, 2003 and found that the Claimant had recovered from her work-related injury of July 27, 2000 as of June 21, 2001. The WCJ terminated Claimant's benefits as of June 21, 2001. Claimant appealed to the Board.
On June 10, 2005, the Board found that the WCJ did not exceed the scope of the remand and that the WCJ's findings were supported by substantial evidence. The Board affirmed the decision of the WCJ. Claimant now petitions our Court for review.[1]
Claimant contends that the WCJ erred in accepting the testimony of Employer's medical witness on remand when *723 he rejected that testimony in his initial decision.
In a claim petition for compensation, the claimant has the burden of establishing the right to compensation and all of the elements necessary to support an award, including the burden of establishing a causal relationship between a work-related incident and an alleged disability. Cardyn v. Workmen's Compensation Appeal Board (Heppenstall), 517 Pa. 98, 534 A.2d 1389 (1987). Where the causal connection between employment and injury is not obvious, the claimant must present unequivocal medical testimony to establish that connection. Shelestak v. Workmen's Compensation Appeal Board (Bethlehem Mines Corporation), 131 Pa.Cmwlth.582, 571 A.2d 516 (1990). The claimant also has the burden of proof in establishing the duration of disability throughout the pendency of the claim petition. Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 166 Pa.Cmwlth. 141, 646 A.2d 51 (1994), appeal denied, 541 Pa. 645, 663 A.2d 696 (1995), citing Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993).
In the present controversy, Claimant presented the deposition testimony of Dr. Steven B. Wolf, M.D. (Dr. Wolf) and Dr. Julian Gutierrez, M.D. (Dr. Gutierrez) in support of her claim petition. Employer presented the deposition testimony of Dr. Richard G. Schmidt, M.D. (Dr. Schmidt) in opposition. The WCJ initially found Dr. Wolf and Dr. Gutierrez credible and Dr. Schmidt incredible in granting Claimant's claim petition and ordering Employer to pay Claimant's medical expenses into the future. However, upon remand from the Board, the WCJ found Dr. Schmidt credible and terminated Claimant's benefits as of June 22, 2001. Claimant contends that the WCJ could not change its credibility determination on remand, as it was beyond the scope of the remand.
Upon remand from the Board, the WCJ must confine his decision to the instructions within the remand order. Clark v. Workers' Compensation Appeal Board (Wonder Bread Company), 703 A.2d 740 (Pa.Cmwlth.1997). There would be unnecessary confusion if the WCJ was not required to confine his decision to the remand order. Delaware County v. Workers' Compensation Appeal Board (Baxter-Coles), 808 A.2d 965 (Pa.Cmwlth.2002). The WCJ is not required to produce the same result as the initial decision; he is only required to remain within the boundaries of the remand order. Id.
In the present controversy, the Board remanded to the WCJ to "summarize Dr. Schmidt's testimony and explain the basis for his credibility determinations with regard to the medical expert testimony...." Board's Decision, September 24, 2003, at 6. The WCJ reviewed the medical testimony, summarized Dr. Schmidt's testimony, made new credibility determinations and explained the basis for such determinations in his opinion. All of this review was within the boundaries of the remand order. The WCJ was required to review the medical testimony and state the basis for his determinations. He was not required to produce the same result as the initial decision.
The Claimant questions the WCJ's acceptance of Dr. Schmidt's opinion. Such determinations are beyond the purview of this Court's appellate review. All doctors demonstrated a thorough understanding of the Claimant's condition, and the WCJ exercised his authority to accept the testimony of the Employer's medical witness, in whole or in part. Casuccio v. Workmen's Compensation Appeal Board (Scheidemantle), 72 Pa.Cmwlth.270, 456 A.2d 1117 *724 (1983). The WCJ is the ultimate fact finder and has complete authority for making all credibility determination. Universal Cyclops Steel Corporation v. Workmen's Compensation Appeal Board, 9 Pa. Cmwlth. 176, 305 A.2d 757 (1973).
Accordingly, we affirm the decision of the Board.
ORDER
AND NOW, this 17th day of November, 2005 the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
NOTES
[1] Our review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 139 Pa.Cmwlth.15, 589 A.2d 291 (1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264003/ | 886 A.2d 536 (2005)
In re Jacob Q. OWUSU, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 442164).
No. 04-BG-916.
District of Columbia Court of Appeals.
Argued October 20, 2005.
Decided November 10, 2005.
*537 Elizabeth A. Herman, Senior Assistant Bar Counsel, with whom Joyce E. Peters, Bar Counsel at the time the brief was filed, was on the brief, for the Office of Bar Counsel.
Elizabeth J. Branda, for the Board on Professional Responsibility.
Before TERRY, FARRELL, and REID, Associate Judges.
*538 FARRELL, Associate Judge:
The Board on Professional Responsibility (the Board), having found that respondent Jacob Q. Owusu committed serious neglect of an immigration matter, has recommended his suspension from the practice of law in the District of Columbia for sixty days, and that he be ordered to pay restitution and required to prove fitness to practice as a condition of reinstatement. Owusu has not participated in these disciplinary proceedings at any stage. Bar Counsel, for her part, excepts only to the Board's recommendation that an additional charge of violation of Rule 8.4(d), based partly on Owusu's failure to answer the disciplinary complaint underlying the neglect allegations, be dismissed.[1] Although Bar Counsel seeks no additional sanction for the alleged Rule 8.4(d) misconduct, she asks us to review the Board's finding of no violation because "the Court's interpretation of Rule 8.4(d) is critically important to Bar Counsel's investigations and the disciplinary system" (Br. for Bar Counsel at 2). For the reasons that follow, we conclude that there was no violation of Rule 8.4(d) here, and accept the Board's recommendation entirely.
A hearing committee and the Board both found that Owusu had violated the following Rules of Professional Conduct: 1.1(a) (duty of competent representation); 1.1(b) (duty to serve client with skill and care); 1.3(a) (duty of zealous and diligent representation); 1.3(b)(1) (intentional failure to pursue client's lawful objectives); 1.3(b)(2) (intentional prejudice or damage to client); and 1.4(a) (duty to keep client reasonably informed about the status of the matter and promptly comply with reasonable requests for information). The violations all stemmed from Owusu's actions and inactions beginning in 1997, when he was retained by Eugene Ajayi to represent him in seeking an adjustment of Ajayi's immigration status following his marriage to a United States citizen. Among other things, Owusu filed the application for adjustment of status in the wrong place, resulting in its rejection by the immigration authorities, and failed to appear at a key interview between immigration officials and Ajayi. Indeed, after meeting with Owusu before that interview and paying him the balance of the retainer, Ajayi never again succeeded in reaching him.
As stated earlier, Owusu has not appeared in these disciplinary proceedings and, accordingly, has filed no exceptions to the Board's findings or recommendation. The record, in any event, contains abundant support for the Board's conclusion that he engaged in serious and damaging neglect of his responsibilities to Ajayi, and for its recommendation concurred in by Bar Counsel of a sixty-day suspension, together with a requirement that he pay $3,500 in restitution and show fitness before reinstatement. See, e.g., In re Perez, 828 A.2d 206 (D.C.2003) (per curiam) (ordering suspension for sixty days with reinstatement conditioned on showing of fitness "for protracted neglect and intentional conduct that resulted in prejudice ... to a vulnerable client"). The sole issue in dispute is whether the Board correctly determined, contrary to Bar Counsel's (and the Hearing Committee's) position, that Owusu had not also violated Rule 8.4(d) by his combined failure to respond to Bar Counsel's inquiry into his representation of Ajayi and failure to inform the Bar of his current address. Bar Counsel's acceptance of the sanction recommended by the Board makes it *539 strictly unnecessary for us to consider that question,[2] but we proceed nonetheless to answer it given the importance Bar Counsel attaches to the issue.
In early March 2002, Ajayi complained to Bar Counsel about Owusu's conduct. On March 21, 2002, Bar Counsel opened an investigation by mailing Owusu, at his most recent address reflected in records of the D.C. Bar, a letter and a copy of Ajayi's complaint and a request that he respond. The letter was returned to Bar Counsel with the notation "moved, left no forwarding address." Bar Counsel also hired a process server who tried unsuccessfully to reach Owusu on repeated occasions. All subsequent motions, letters and pleadings that were mailed to him, at all addresses known to Bar Counsel, were returned as undeliverable. As of the date of the disciplinary hearing in 2003, Bar Counsel had not received a response to the misconduct allegations from Owusu.
In these circumstances, Bar Counsel and the Board agree that Owusu did not receive actual notice of the investigative inquiry. See, e.g., Br. for Bar Counsel at 7.[3] Bar Counsel nevertheless charged him with violating Rule 8.4(d) by failing to respond to the inquiry and by failing to maintain a current address with the D.C. Bar, as required by D.C. Bar R. II §§ 2(1) and 2(4).[4] Bar Counsel conceded to the Board that a Rule 8.4(d) charge "may not be appropriate" if an attorney "inexplicably" fails to receive a Bar Counsel letter of inquiry, provided he has maintained current address information with the Bar. But if an attorney fails to provide the Bar with *540 an accurate address, Bar Counsel argued (and argues to the court) that the attorney has created a situation that keeps him ignorant of a disciplinary investigation, and in that case his failure to respond to Bar Counsel violates Rule 8.4(d) whether or not he was aware of the investigation. The Board rejected this application of Rule 8.4(d), and so do we.
"[A]n attorney's failure to respond to Bar Counsel's inquiries in an investigation of a disciplinary complaint ... violates Rule[] ... 8.4(d)." In re Burnett, 878 A.2d 1291, 1292 (D.C.2005) (per curiam). See also In re Beller, 802 A.2d 340 (D.C.2002) (per curiam); In re Delaney, 697 A.2d 1212, 1214 (D.C.1997); In re Siegel, 635 A.2d 345, 346 (D.C.1993) (per curiam). In Burnett, for example, the attorney was found to have violated the rule because of his "total failure to respond or cooperate with Bar Counsel in the investigation of three other disciplinary complaints" against him. 878 A.2d at 1292; see also Siegel, 635 A.2d at 346 (attorney "sought to avoid his responsibilities by deliberate evasion of Bar Counsel and his agents"). As Siegel illustrates, however, in each of the cited cases the respondent-attorney had been served personally with the complaint and/or orders of the Board, and thereafter failed to respond or cooperate with the investigation. See Burnett, 878 A.2d at 1292 ("respondent was personally served"); Beller, 802 A.2d at 340 (respondent "admitted [her] failure to respond to repeated inquiries from Bar Counsel"; no apparent claim of failure to receive notice); Delaney, 697 A.2d at 1213 ("the letter and the complaint were personally served on [r]espondent by a process server"). None of our decisions supports a violation of the rule for failure to respond when the attorney did not receive notice of the investigation.
Bar Counsel does not contend otherwise, which is why her argument for a Rule 8.4(d) violation rests on the additional fact that Owusu failed to keep the Bar informed of his current address. Quoting the Hearing Committee, Bar Counsel states that "where, as here, an attorney disappears and fails to provide the Bar with an accurate address, he has intentionally created a situation that would keep him ignorant of a Bar investigation" (Br. for Bar Counsel at 13); see id. (Owusu "created the situation so that he would not know of Bar Counsel inquiries") (emphases added). However, as the Board points out, this assertion of purposeful wrongdoing is unsupported by record evidence. Owusu's neglect of the immigration case began in September 1998 when he failed to appear for Ajayi's interview, and the client was unable to locate him thereafter. Owusu subsequently updated his address and telephone number on November 2, 1998, in the last registration statement he filed with the D.C. Bar. By the time Bar Counsel opened a disciplinary investigation and tried to forward Ajayi's complaint to Owusu in 2002, he had not filed registration statements with the Bar for over three years, for reasons unexplained in the record. Given this sequence of events, the assertion that Owusu intentionally kept his current address from the Bar to avoid either an actual or incipient investigation by Bar Counsel is wholly speculative. In its report, the Board made that point by asserting that, while "there may be circumstances under which it would be appropriate to impute knowledge of Bar Counsel['s] inquiry to a ... respondent" who has not disclosed his address, that would be unfair "under the facts presented here" where the reasons for the attorney's failure to update his address are unknown. We agree.
Imputing knowledge of Bar Counsel's inquiry to Owusu in these circumstances *541 would effectively transform a violation of an administrative Bar rule into the more serious violation of failure to respond to Bar Counsel under Rule 8.4(d), without any evidence of purpose linking the failure to register and failure to respond. Our cases defining a Rule 8.4(d) violation prohibit that course. The leading decision is In re Hopkins, 677 A.2d 55 (D.C.1996), in which the court began by observing that the rule more precisely, its predecessor rule, which did not differ significantly in content from Rule 8.4(d), see id. at 56 n.1 is generally meant "`to encompass derelictions of attorney conduct considered reprehensible to the practice of law,'" id. at 59 (quoting In re Alexander, 496 A.2d 244, 255 (D.C.1985)), and is "not so broad as to encompass any and all misconduct by an attorney." Id. We explained in Hopkins that to establish a violation of Rule 8.4(d) Bar Counsel must prove by clear and convincing evidence: (1) that the attorney acted improperly in that he either "[took] improper action or fail[ed] to take action when ... he or she should [have] act[ed]"; (2) that the conduct involved "bear[s] directly upon the judicial process (i.e., the `administration of justice') with respect to an identifiable case or tribunal"; and (3) that the conduct "taint[ed] the judicial process in more than a de minimis way," meaning that it "at least potentially impact[ed] upon the process to a serious and adverse degree." Id. at 60-61; see also In re Hallmark, 831 A.2d 366, 374 (D.C.2003). In this case the Board was willing to posit, and so do we, that Owusu acted improperly in that he failed to take action when he should have he failed to comply with the registration requirements of D.C. Bar R. II, § 2. But that inaction, in the absence of evidence that he ignored those requirements deliberately to evade a Bar Counsel inquiry, falls short of meeting the second and third elements of the Hopkins test.
D.C. Bar R. II, § 2 sets forth the administrative requirements of Bar membership. Administration of those requirements including suspension for violation of them is not vested in judges but in the Board of Governors, elected officials who administer the Bar membership, see D.C. Bar R. II, §§ 2 & 6. Ensuring compliance with the requirements is therefore not judicial in nature and does not "bear directly upon the judicial process."[5]See, by contrast, Hopkins, 677 A.2d at 60 (citing In re L.R., 640 A.2d 697 (D.C.1994)) (misconduct that affects the Criminal Justice Act (CJA) program, which is an integral part of the judicial process of the courts of the District of Columbia, satisfies the second Hopkins criterion). At the same time, "an investigation by Bar Counsel is ... part of the judicial process," Hopkins, 677 A.2d at 61 n. 10 (emphasis added), and Bar Counsel argues that an attorney's failure to maintain a current address hampers its investigative abilities and in that sense bears directly on the process. But this argument is weak factually because Bar Counsel was able to successfully prosecute the disciplinary complaint in this case without a response from Owusu. More importantly, as we have seen, Bar Counsel has not shown that Owusu's failure to update his address was at all related to in the sense that it was intended to impede the investigation of the Ajayi complaint. Accepting Bar Counsel's argument would thus mean that any failure to update address *542 information potentially violates Rule 8.4(d) if Bar Counsel later opens an investigation and cannot reach the attorney. That is not what Hopkins meant, we believe, by wrongdoing that bears "directly upon the judicial process ... with respect to an identifiable case or tribunal." Id. at 61.
Moreover, assuming that Owusu's failure to register his address related somehow to the judicial process, it did not, without more, taint that process "to a serious and adverse degree." Id. As we recognized earlier, the issue would be different if evidence showed that Owusu had willfully blinded himself to Bar Counsel's inquiries; under our decisions, purposefully evading an inquiry by changing address without notifying the Bar would presumptively, and seriously, affect the disciplinary process. But there was no proof of deliberate avoidance on Owusu's part.[6] The more relevant analog in these circumstances is the conduct of the CJA-appointed attorney in In re Hallmark, supra, who submitted an untimely and "obviously deficient" voucher for payment to the trial court and then "ignore[d] the presiding judge's inquiries" about the voucher. 831 A.2d at 374-75. We agreed there with the Board's conclusion that this wrongdoing had not "impacted the administration of justice in more than a de minimis way," id., explaining:
Generally, we have found a Rule 8.4(d) violation upon a showing of more egregious conduct than the one at bar. See, e.g., In re Drew, 693 A.2d 1127 (D.C.1997) (per curiam) (attorney's deliberate and wrongful refusal to file appeal resulted in obstruction of client's right to appellate review); In re Goffe, 641 A.2d [458,] 459 [(D.C.1994)] (attorney's fabrication and alteration of evidence in two cases held to seriously and adversely impact the judicial process); In re Delate, 598 A.2d 154, 156-57 (D.C.1991) (per curiam) (failing to appear at a hearing and to file required accountings adversely impacted on the judicial process by placing client's case in jeopardy); In re Sandground, 542 A.2d 1242 (D.C.1988) (per curiam) (assisting client to conceal assets in divorce case); In re Reback, 513 A.2d 226 (D.C.1986) (en banc) (forging client's signature on complaint). Contrasting this type of conduct, where there is intentional disregard for the effect that an action may have on judicial proceedings or the client's cause, what we have here is a deficient request for compensation which the Hearing Committee found to be the result of negligence, not fraud. We do not doubt that respondent's conduct placed an unnecessary burden on the administrative processes of the Superior Court and on the presiding judge, but her untimely submission of an obviously deficient voucher did not seriously and adversely affect the administration of justice, or her client.
Id. at 375 (emphases added). In the same way, assuming that Owusu's failure to file registration statements unnecessarily burdened Bar Counsel's ability to investigate his conduct, it still was not, standing alone, conduct "reprehensible to the practice of law," Hopkins, 677 A.2d at 59; it was not shown to reflect "intentional disregard for *543 the effect [it might have] on judicial proceedings," Hallmark, 831 A.2d at 375; and it did not, we conclude, "taint the judicial process in more than a de minimis way." Hopkins, 677 A.2d at 61.
We therefore dismiss the charged violation of Rule 8.4(d). But in view of the ethical violations Owusu did commit, we suspend him from the practice of law for sixty days and require him to pay restitution to the client in the amount of $3,500 (plus interest at the legal rate of 6%), as well as to demonstrate fitness to practice law before reinstatement.
So ordered.
NOTES
[1] Rule 8.4(d) of the District of Columbia Rules of Professional Conduct states that "[i]t is professional misconduct for a lawyer to ... [e]ngage in conduct that seriously interferes with the administration of justice."
[2] See, e.g., In re Corizzi, 803 A.2d 438, 439 n. 1 (D.C.2002) (court declines to address Bar Counsel's exceptions to Board's failure to find additional ethical violations "because [discipline] is warranted, as Bar Counsel agreed, based simply on the violations that were found by the Board.").
[3] At oral argument, Bar Counsel hedged slightly on the concession of no actual notice in her brief by pointing to the process server's affidavit in the record which states that individuals (including a family member of Owusu's) present at various addresses at which service was attempted had "not been forthcoming as to [Owusu's] whereabouts" thus suggesting purposeful evasion by Owusu. The Hearing Committee, however, did not mention or evaluate this evidence in its recommended finding of a Rule 8.4(d) violation, which rested solely on Owusu's combined failure to respond to the investigation and to update his address. In any event, that single affidavit statement would not constitute clear and convincing evidence that Owusu had deliberately evaded knowledge of the inquiry.
[4] D.C. Bar R. II, § 2(1), "Periodic Registration of Attorneys," provides in pertinent part:
Every attorney who engages in the practice of law within the District of Columbia ... shall on or before July 1 of every year file with the Secretary of the Bar a registration statement setting forth his or her current residence and office addresses, telephone number, other state jurisdictions in which he or she is admitted to practice including date of admission, and such other information as the Court may from time to time direct. In addition to such registration statement, every attorney shall file a supplemental statement with the Secretary of any change in the information previously submitted within thirty days of such change.
D.C. Bar R. II, § 2(4) provides in pertinent part:
An attorney who ... is not engaged in practice ... shall advise, in writing, the Secretary of the Bar that he desires to assume inactive status and to discontinue the practice of the law. Upon the filing of such notice, that attorney shall no longer be eligible to practice law but shall continue to file registration statements for 5 years thereafter in order that he may be located in the event any complaint is made about his conduct while he was engaged in practice.
Rule II, § 2(3) further provides for the summary suspension from practice of an attorney "who fails to file any registration statement or supplement thereto in accordance with the requirements of [Rule II, § 2(1)] above."
[5] In a recent case, Sitcov v. District of Columbia Bar, No. 05-BG-258, 885 A.2d 289, 2005 D.C.App. Lexis 529 (D.C. October 20, 2005), we similarly held that suspension of an attorney for nonpayment of Bar dues under D.C. Bar R. II, § 6 is an "administrative" act and "is not `discipline' as contemplated by Rule XI" of the Bar rules. Id., at 298, 2005 D.C.App. Lexis 529 at *19.
[6] Bar Counsel acknowledges that "if a lawyer one time forgot to update his address with the Bar ... the interference with the administration of justice would probably be de minimis," but contends that Owusu's successive failures to register "at least together violated Rule 8.4(d)" (Br. for Bar Counsel at 13). Without proof of Owusu's intent or even knowledge of an investigation into his representation of Ajayi, however, the repeated failure to register no more establishes subversion of Bar Counsel's disciplinary investigation than does a single failure to do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264046/ | 479 F.Supp. 593 (1977)
Emily Lindsey SMITH and Robert Smith
v.
SOUTHEASTERN STAGES, INC., Edward Sam Carder, the Continental Insurance Company, Georgia Kraft Company, and Guy Richard Smith.
Civ. No. C75-1425A.
United States District Court, N. D. Georgia, Atlanta Division.
March 29, 1977.
*594 George W. Fryhofer, Waynesboro, Ga., Claude R. Ross and Baxter H. Finch, Ross & Finch, Atlanta, Ga., for plaintiffs.
Warner S. Currie and Samuel P. Pierce, Jr., Swift, Currie, McGhee & Hiers, Atlanta, Ga., for Southeastern Stages, Continental Ins. Co. and Edward Sam Carder.
A. Paul Cadenhead and James C. Gaulden, Jr., Nall, Miller & Cadenhead, Atlanta, Ga., for Georgia Kraft Co. and Guy Richard Smith.
John T. Marshall, of Powell, Goldstein, Frazer & Murphy, Ben L. Weinberg, Jr., of Long, Weinberg, Ansley & Wheeler, Atlanta, Ga., for defendants.
ORDER
O'KELLEY, District Judge.
This action is presently before the court on the following motions: (1) a motion for judgment notwithstanding the verdict filed on behalf of defendants Georgia Kraft Company and Guy Richard Smith [hereinafter referred to as the Georgia Kraft defendants]; (2) the Georgia Kraft defendants' alternative motion for a new trial; (3) a motion for a new trial filed on behalf of defendants Southeastern Stages, Inc., Continental Insurance Company, and Edward Sam Carder; and (4) the plaintiffs' motion requesting the court to strike from the latter motion for a new trial the report of Dr. Albert H. Clark, a consulting economist. By this order, the court will resolve all pending motions.
The affidavit at which the plaintiffs' motion to strike is directed was submitted by the Southeastern Stages defendants to support their contention that the verdict rendered in this case is excessive. In their motion to strike, the plaintiffs advance numerous arguments in support of their position that the court's consideration of Dr. Clark's affidavit is improper. The difficulty with the plaintiffs' motion, however, is that a motion to strike is only appropriately addressed toward matters contained in the pleadings, Fed.R.Civ.P. 12(f), and affidavits submitted in support of a motion are clearly not within that category. See Fed.R.Civ.P. 7. Regardless of the practice followed in other forums, this court does not sanction the use of a rule 12(f) motion for the advancement of objections to an affidavit filed in support of a motion. See Wright and Miller, Federal Practice & Procedure § 1380. It is sufficient for the party opposing *595 the motion to register its objection to the movant's affidavits by way of the material submitted in opposition to the motion. The court will then implicitly, if not explicitly, rule upon these objections in its consideration of the motion. Accordingly, the plaintiffs' motion to strike is hereby denied.
In support of their motion for judgment notwithstanding the verdict, the Georgia Kraft defendants contend that the evidence adduced at trial is insufficient to support the jury's findings that defendant Smith was grossly negligent or its finding that this negligence proximately caused the plaintiff's injuries.[1] When faced with questions concerning the sufficiency of evidence on either a motion for directed verdict or a motion for judgment notwithstanding the verdict, it is well settled in this circuit that
the Court should consider all of the evidencenot just that evidence which supports the non-mover's casebut in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. . . . There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (footnotes omitted). Accord, Morrison v. Frito-Lay, Inc., 546 F.2d 154 (5th Cir. 1977).
Evaluating the Georgia Kraft defendants' contentions in light of this standard, the court concludes that there is "substantial evidence" to support both of the challenged findings. Supportive of the jury's finding that defendant Smith was grossly negligent is the evidence of Mr. Smith's failure to give a directional signal prior to making a left-hand turn and his failure to keep a proper lookout for other traffic on the highway. Under Georgia law the combination of such circumstances is sufficient to permit the jury to find that the defendant was guilty of gross negligence. See Rigdon v. Williams, 132 Ga. App. 176, 207 S.E.2d 591 (1974); Clements v. Riser, 123 Ga.App. 595, 182 S.E.2d 169 (1971); Parker v. Johnson, 97 Ga.App. 261, 102 S.E.2d 917 (1958). Concerning the Georgia Kraft defendants' assertion that the evidence is insufficient to support the jury's finding that defendant Smith's negligence was the proximate cause of the plaintiff Emily Smith's injuries, it must be emphasized initially that in neither the motion nor the briefs submitted in support thereof do these defendants specify the basis of their argument. The court assumes, however, that the basis is that the negligence of defendant Carder, the driver of the Southeastern Stages bus, amounted to an independent, intervening cause which broke the chain of causation linking the Georgia Kraft defendants to the plaintiff's injuries. In order for this argument to succeed, however, the movants must show that, as a matter of law, Carder's negligence was unforeseeable. See Southern Ry. v. Webb, 116 Ga. 152, 42 S.E. 395 (1902); McDaniel v. Brown, 61 Ga.App. 243, 6 S.E.2d 382 (1939). This they clearly cannot do. Accordingly, the motion for judgment notwithstanding the verdict filed on behalf of the Georgia Kraft defendants is hereby denied.
*596 Both groups of defendants have filed motions for a new trial pursuant to Fed.R. Civ.P. 59, which provides in pertinent part:
A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States . . ..
It is well settled that the granting of a new trial is a "matter resting within the sound discretion of the trial court exercised with regard to what is right and in the interest of justice . . .." Complete Auto Transit v. Floyd, 249 F.2d 396, 399 (5th Cir. 1957). It is in light of this standard, then, that the court must evaluate the grounds advanced by the defendants in support of their motions. Before turning to an examination of those contentions, however, the court must point out that since both motions for a new trial present certain grounds which are related, the discussion of the motions will be organized according to the grounds offered in support thereof rather than on the basis of the parties raising those grounds.
Two of the grounds offered in support of the motions for a new trial involve alleged errors which were committed by the court in resolving certain evidentiary questions. First, the Southeastern Stages defendants contend that the court erred in refusing to admit into evidence the police report prepared by Mr. Robert Bates, the Georgia State Highway Patrol trooper who investigated the accident. Alternatively, these defendants argue that at least that portion of the report containing a diagram of the accident should have been admitted and the court's refusal to do so was error. Second, both groups of defendants allege that the court committed prejudicial error in its ruling on the admissibility of certain portions of a video taped experiment. The Georgia Kraft defendants contend that the court erred in admitting that portion of the video tape which demonstrated the moving interrelationships between the two vehicles involved in the accident as well as that portion which demonstrated the view through the inside rear view mirror of the truck driven by the defendant Smith. The Southeastern Stages defendants, on the other hand, assert that the court erred in not admitting all of the video taped experiment. Prior to making both of the rulings challenged by the defendants, the court considered evidence which was tendered in light of the applicable legal standards. In their motions for a new trial the defendants have not raised any arguments relating to these evidentiary questions which were not previously considered by the court. Therefore, the court is not inclined to reverse its earlier rulings on these questions. In any event, even if the court is incorrect in these evidentiary rulings, it finds that in light of the other evidence adduced at the trial and the instructions given to the jury regarding the video taped experiment, the errors are not prejudicial and, therefore, constitute an improper basis upon which to grant a new trial. See Midcontinent Broadcasting Co. v. North Central Airlines, Inc., 471 F.2d 357 (8th Cir. 1973); Seven Provinces Insurance Co. v. Commerce & Industry Insurance Co., 65 F.R.D. 674 (W.D.Mo.1975).
Five of the grounds which the defendants offer in support of their motions for a new trial concern alleged errors in the court's charge to the jury. First, the Southeastern Stages defendants contend that the court erred in failing to charge the concept of intervening proximate cause. The difficulty with this argument, however, is that the court's charge on proximate cause in this case did include reference to the concept of intervening proximate cause. In its instructions relating to the issue of proximate cause, the court stated:
Proximate cause means that cause which naturally leads to and which might have been expected to produce a result and which, in a natural and continuous sequence, unbroken by any new cause, produces an event such as a collision which would not have occurred without it.
After careful consideration, the court concludes that its instructions on proximate cause and intervening proximate cause are *597 sufficient. In any event, the court's charge on the effect of an intervening cause was cast in terms favorable to the defendants. It, like the Southeastern Stages defendants' Request to Charge No. 13, fails to instruct the jury that if the intervening act was foreseeable by the original wrongdoer, the causal connection is not broken and the original wrongdoer is responsible for all of the consequences resulting from the intervening act. Southern Ry. v. Webb, supra.
Second, the Georgia Kraft defendants assert that the court erred in omitting from its definition of gross negligence the statement that such negligence is an act or omission of an aggravated nature. The court disagrees. The definition of gross negligence which the court charged in this case is that provided by statute in Georgia. Ga.Code Ann. § 105-203 (Rev.1968). While there are cases which support the inclusion in the definition of gross negligence of the statement that it is an act or omission of an aggravated nature, Tidwell v. Tidwell, 92 Ga.App. 54, 87 S.E.2d 657 (1955); Hatcher v. Bray, 88 Ga.App. 344, 77 S.E.2d 64 (1953), there are numerous decisions in which the Georgia courts have approved the charging of the gross negligence statute in lieu of any other form charge. See, e. g., Kimberly v. Reed, 79 Ga.App. 137, 53 S.E.2d 208 (1949); Whitfield v. Wheeler, 76 Ga.App. 857, 47 S.E.2d 658 (1948). Therefore, the court concludes that its charge on the definition of gross negligence is an accurate and sufficient statement of the law as it exists in this state.
Third, the Georgia Kraft defendants argue that the inclusion in the court's charge of a statement of the duty defendants Smith and Carder owed one another placed before the jury a matter totally irrelevant to this case which tended to confuse the jury and led them to impose upon the Georgia Kraft defendants a greater duty of care, i. e., ordinary care, than the duty imposed upon them by law, i.e., slight care. This argument, however, overlooks the fact that the court on numerous occasions throughout its charge specifically instructed the jury on the duty of care which the Georgia Kraft defendants owed the plaintiff. In fact, contained in the same sentence and immediately following the court's statement concerning the duty of care which defendants Smith and Carder owed to each other is the following statement: "[H]owever, Mr. Smith's duty towards his guest passenger, the plaintiff, Mrs. Smith, is only that of slight care." In view of these circumstances, the court concludes that its statement concerning the duty which defendants Smith and Carder owed to one another did not confuse the jury or lead them to impose a greater duty upon the Georgia Kraft defendants.
Fourth, the Georgia Kraft defendants contend that the court erred in charging the provisions of Ga.Code Ann. § 68A-303 (Rev.1975), which governs the overtaking and passing of vehicles proceeding in the same direction and which provides that
the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.
In support of their argument, these defendants contend that this statute does not apply in a situation where the leading vehicle is making a left-hand turn at an intersection and it is against the law for an overtaking vehicle to pass. The court has carefully considered the defendants' argument, and, while there is no authority to guide the court's decision in this matter, it concludes that section 68A-303 was properly charged in the circumstances of this case.
Finally, both groups of defendants contend that the court erred in failing to instruct the jury that any award made to plaintiff Robert Smith for future medical and care expenses should be reduced to present cash value. Admittedly, this is clearly the rule in this state. Hughes v. Brown, 109 Ga.App. 578, 136 S.E.2d 403 (1964). The difficulty with the defendants' argument, however, is that they did not request such an instruction at the trial of the case. It is well settled that a party cannot complain of the court's failure to give a particular instruction where he has *598 not properly requested the same. C.J. Peck Oil Co. v. Diamond, 204 F.2d 179 (5th Cir. 1953). Cf. Industrial Development Board v. Fuqua Industries, Inc., 523 F.2d 1226 (5th Cir. 1975); Clark Advertising Agency, Inc. v. Tice, 490 F.2d 834 (5th Cir. 1974); Stephenson v. College Misericordia, 376 F.Supp. 1324 (M.D.Pa.1974). There is, however, an exception to this general rule in cases where the court's failure to give an instruction constitutes plain error, i.e., an error so fundamental as to result in a miscarriage of justice. Industrial Development Board v. Fuqua Industries, Inc., supra.
After careful consideration, the court concludes that its failure to instruct the jury to reduce any award for future medical and care expenses to present value does not constitute such an error. Two factors are supportive of the court's conclusion. First, an examination of the record in this case indicates that the jury apparently did make such a reduction. Any award for these expenses is included in the $800,000 awarded to plaintiff Robert Smith. Using the lowest figure suggested by the defendants for anticipated annual medical costs, $22,000, the projected undiscounted medical expenses which would accrue over the 51.12 year life expectancy of the plaintiff Emily Smith exceeds $1,100,000. In light of this fact and in light of the fact that also included within the $800,000 which was awarded to plaintiff Robert Smith is compensation for his loss of consortium, it is obvious that the jury reduced its award for future medical and care expenses to present cash value. The second factor which supports the court's conclusion that its failure to charge on reduction to present cash value does not constitute an error so fundamental as to result in a miscarriage in justice is the fact that any increase in the amount of an award for future medical and care expenses which could have been caused by such failure is offset by the court's failure to instruct the jury that in arriving at the amount of their verdict, they may consider an inflationary factor. Under Georgia law, such a consideration is clearly appropriate. Jordan v. Fowler, 104 Ga.App. 824, 123 S.E.2d 334 (1961); Fields v. Jackson, 102 Ga.App. 117, 115 S.E.2d 221 (1960).
The final, and primary, ground which the defendants advance in support of their motions for a new trial is that the verdict rendered in this case is excessive. Throughout the years numerous standards have been evolved to guide the court in deciding whether a verdict should be set aside as excessive. One such standard, and the one followed in this state, is that a verdict will not be set aside as excessive unless the amount thereof shocks the moral conscience of the court. See Jones v. Spindel, 128 Ga.App. 88, 196 S.E.2d 22 (1973). The better rule, and the one followed in the Fifth Circuit, is that a verdict will not be set aside if it is "within the bounds of reasonable inference from the evidence." Glazer v. Glazer, 278 F.Supp. 476, 481 (E.D.La.1968), quoting Miller v. Maryland Casualty Co., 40 F.2d 463, 465 (2d Cir. 1930). See Bonura v. Sea Land Service, Inc.., 505 F.2d 665 (5th Cir. 1974); Jenkins v. Aquatic Contractors & Engineers, 446 F.2d 520 (5th Cir. 1971); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (5th Cir. 1970). Under either test, however, the court must not substitute its judgment of damages for that of the jury.
After careful consideration, the court concludes that the award of $800,000 to plaintiff Robert Smith and $2,000,000 to plaintiff Emily Smith is reasonably supported by the evidence in this case. The court will not undertake to outline at this time the evidence which was introduced in this case on the question of damages. It is sufficient to observe that the $800,000 awarded to plaintiff Robert Smith includes not only an award for future medical and care expenses but also an award for loss of consortium. As previously discussed, even if the evidence is viewed in terms most favorable to the defendants, the jury could have awarded $500,000 for future medical expenses. This would result in an award of $300,000 for loss of consortium, an amount which under the circumstances of this case is clearly within the bounds of reason. Concerning the plaintiff Emily Smith, this *599 court concludes that in view of the fact that she is totally paralyzed to the neck and that her life expectancy is over 50 years, an award of $2,000,000 to compensate her for the pain and suffering which she must endure over this period of time is within the bounds of reason. The court is supported in its conclusion by the decision in Griffin v. United States, 351 F.Supp. 10 (E.D.Pa. 1972), remanded on other grounds, 500 F.2d 1059 (3d Cir. 1974), in which the court on similar facts as those presented in the case sub judice and sitting without a jury awarded the plaintiff wife $1,200,000 for pain and suffering and the plaintiff husband $300,000 for loss of consortium.
One argument offered by the defendants in support of their contention that the verdict in this case is excessive is that it is one of the largest, if not the largest, verdict rendered in a personal injury suit of this type in the state of Georgia. The court is not persuaded by this argument. As an initial matter, no two lawsuits are identical, and the verdict rendered in one should not govern the amount of the verdict which could properly be rendered in another. In any event, even though a verdict of this size is new to the state of Georgia, numerous verdicts have been rendered elsewhere which are at least equal to, if not greater, in amount. Simply stated, this court concludes that regardless of the amount of the verdicts traditionally rendered in Georgia in this type of case, the $2,800,000 verdict entered here is within the bounds of reasonable inference from the evidence and is, therefore, not excessive.
Based on the foregoing discussion, the motions for a new trial filed on behalf of both groups of defendants are hereby denied.
NOTES
[1] The Georgia Kraft defendants also raise this argument in support of their motion for a new trial. While the standards employed to resolve a motion for judgment notwithstanding the verdict differ from those applied to a motion for new trial, the court feels that its present discussion of the issue of whether there is sufficient evidence to support the verdict demonstrates that this ground will not support a motion for a new trial. Further discussion, then, is unnecessary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264065/ | 479 F.Supp. 120 (1979)
Robert W. KELLEY, Individually and representative of the class
v.
METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al.
Henry C. MAXWELL, Jr., Individually and representative of the class
v.
METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al.
Civ. A. Nos. 2094, 2956.
United States District Court, M. D. Tennessee, Nashville Division.
August 27, 1979.
(Rendered Orally August 24, 1979)
*121 Avon N. Williams, Jr., Richard Dinkins, Nashville, Tenn., for plaintiffs.
William R. Willis, Jr., Marian F. Harrison, Nashville, Tenn., for defendants.
MEMORANDUM
WISEMAN, District Judge.
This twenty-four-year-old case is before this Court upon a series of motions and petitions by both the plaintiffs and defendants. The various motions, petitions, and pending matters and dates of filing are as follows:[1]
1. March 17, 1972: Defendants' request for approval of construction of White's Creek Comprehensive High School, included in March 17, 1972, report to this Court and merged into July 24, 1978, petition, listed infra.
2. May 30, 1973: Petition by defendants for approval of long range plan, dealing with twenty-six building projects. This petition has essentially merged into more recent pleadings.[2]
3. May 31, 1973: Defendants' petition for approval of portables for use in kindergartens. No action was taken by the Court in regard to this petition and the defendants subsequently implemented the proposed plan.
4. October 14, 1976: Defendants' motion to amend their May 30, 1973, petition for approval of long range plan. Such motion proposed a new location for the Goodlettsville-Madison High School and asked the Court for approval of construction of that school.
5. December 27, 1976: Plaintiffs' petition for contempt and further relief. Plaintiffs therein moved that defendants be held in contempt for their plan to construct the Goodlettsville-Madison High School, the expansion of Hillsboro, Bellevue, Hillwood, Glencliff, Stratford, and Maplewood high schools, the use of portables for kindergartens, the establishment of the Cole Annex for Cole Elementary School grades five and six at the old Turner School, and the proposed closing of Pearl High School. The Board of Education subsequently rejected the proposal to close Pearl. In this petition, plaintiffs also asked that the Court modify its 1971 order to equalize the burden placed on black and white children as a result of bussing, to compel defendants to maintain a black-white staff ratio commensurate with the black-white student ratio, and to force defendants to upgrade Pearl High School and inner city schools. Finally, plaintiffs requested attorneys' fees.[3]
6. July 24, 1978: Defendants' petition for approval of school attendance zones for 1978-79, as amended August 18, 1978. In this petition, defendants requested court approval of the expansion of Hillsboro, Hillwood, Overton, Maplewood, Glencliff, and Stratford into comprehensive high schools with grades nine through twelve, the addition of grade nine to Cohn and Pearl high schools and to McGavock Comprehensive High School, the opening of the Whites Creek Comprehensive High School to include grades nine through twelve, the elimination of one grade schools, the changes in zoning to alleviate overcrowding and to close inadequate buildings, the plan to develop an inner city comprehensive high school, and the establishment of junior high schools including grades seven and eight with feeder systems into the high schools.[4]
*122 7. August 28, 1978: Plaintiffs' amendment to petition for contempt and for further relief, previously filed on December 27, 1976, and discussed supra. Plaintiffs therein allege that construction and expansion of schools in predominantly white areas, and the closure of formerly black schools in the inner city, the institution of optional transfer programs, discussed infra, and the failure of defendants to increase the black-white faculty ratio are violative of the 1971 court order.
8. August 7, 1979: Plaintiffs' motion for contempt, which charged that defendants had violated the Court's order directing defendants to terminate the optional transfer plan, discussed infra.
In pretrial conferences held with all parties, the Court divided the matters into four phases:
Phase 1: Historical recapitulation of school integration since the order of 1971; consideration of the Long Range Plan of the school board; consideration of the proposed zoning for school year 1978-79 (now moot since the year 1979-80 was only one month away at the time of the hearing); consideration of the Board's request to proceed with certain construction projects.
Phase 2: Consideration of matters relating to racial mix of staff and faculty.
Phase 3: Consideration of all petitions for contempt.
Phase 4: The matter of attorneys' fees.
The Phase 1 hearings began on June 26, 1979, and continued on June 27, 28, 29, 30, 1979, and July 2, 3, 5, and 6, 1979. The proof on Phase 1 overlapped substantially with the matters of Phase 3.
At the conclusion of this hearing, the Court directed the defendant, Board of Education, to reconsider its entire plan assuming no parameters heretofore ordered by the Court, but with the primary objective of the achievement of a unitary school system for the entirety of Davidson County. In addition, the Board was instructed to consider: maximum utilization of existing buildings (specifically including those in the inner city); economic factors of transportation costs and fuel economy; time and distance involved in transportation; and any other factors which would impact upon the ultimate objective of a quality educational opportunity for all children in Davidson County through a unitary school system.
The defendant Board has advised the Court that the foregoing request of the Court is a massive undertaking which, if approved by the Court, will represent a substantial redrawing of zone lines and transfer of numerous students.
From the proof adduced on Phase 1 of the hearings, the Court finds the following:
1. The perimeter line drawn by the Court in 1971, by which no requirement of either transportation or attempts at racial balance was mandated outside the perimeter, has encouraged white flight to the suburbs and to those school zones unaffected by the 1971 order. The combined effect of the order and the flight therefrom, either to suburban public schools or to private schools, has been:
a) that inner city schools have become progressively resegregated;[5]
b) that the projected ideal ratio of 15 percent to 35 percent black population in each school has become increasingly more difficult to meet;
*123 c) that the school facilities outside the Court-ordered perimeter have become increasingly inadequate to accommodate the growing student bodies.
2. The resegregation, resulting, at least in part, from the nonetheless good faith efforts of the School Board in the implementation of the Court's order, amounts to a de jure segregation.
Recognition of the above results impels a complete reexamination of the remedy fashioned in 1971. As the United States Supreme Court has said,
The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. . . . Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed. . . .
Green v. School Bd. of New Kent County, 391 U.S. 430, 439, 88 S.Ct. 1689, 1695 20 L.Ed.2d 716, 724 (1968). See also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 19-21, 91 S.Ct. 1267, 1278-79, 28 L.Ed.2d 554, 569-70 (1971).
Although any delay in achieving an adequate remedy to a situation in which Davidson County children are deprived of constitutional rights is distasteful, the alternatives and the most appropriate remedy among such alternatives have not yet been the subject of proof in this case at this time. The Court is therefore left with the equally untenable choices of a further year's delay or a haphazardly hurried construction of partial patches which would undoubtedly worsen the situation. The problem faced by the parties in this suit, by this Court, and by the citizens of this county is of paramount importance. It deserves the best efforts at resolution that can be mustered by everyone concerned. It is a subject upon which the best minds available to the parties, including input from the many well-motivated, thoughtful citizens of the community, should be sought and received. The 1979-80 school year is less than a week away. Massive restructuring of zones at this time would be chaotic. For all of these reasons, delay, however undesirable, becomes the only option available to the Court. The proposed zones of the Board for the year 1978-79 are approved for use in 1979-80. Over the coming year, this Court will hear from the parties, and invites amicus briefs by groups such as the Citizens Advisory Committee, Parent-Teacher groups, and any other interested group. The Court encourages such groups to submit proposals which are designed to achieve a unitary school system in Davidson County and to provide the best possible educational
Black Students/ White Total
Percentage Black Students Students
1970-71 1212 (100.0) 0 1212
1971-72 599 ( 62.9) 353 952
1972-73 603 ( 66.4) 305 908
1973-74 594 ( 68.4) 274 868
1974-75 558 ( 74.7) 188 746
1975-76 551 ( 72.5) 208 759
1976-77 551 ( 75.8) 175 726
1977-78 492 ( 83.1) 100 592
1978-79[*] 577 ( 96.6) 20 597
Projection
1979-80 532 ( 96.6) 19 551
*124 opportunity for all of the school children of the county.
The Optional Transfer Policy
In 1978 the School Board adopted a transfer policy which permitted any student assigned to a non-comprehensive high school to opt out automatically of such school to a comprehensive high school (Exh. 21). At the July hearings, it became evident to the Court that this provision had been utilized extensively by white students assigned to Pearl to escape such assignment. The percentage of automatic options out of Pearl compared to those from other non-comprehensive high schools leaves no other credible inference.[6] The effect of this policy upon the already-established trend toward resegregation at Pearl was disastrous. From the 1977-78 school year to the 1978-79 year, the black to white ratio went from 83.1 percent to 96.6 percent (Exh. 87).
At the hearings in July, when the foregoing facts became apparent, the Court orally enjoined the Board of Education from further implementation of this transfer policy. The Court's directive from the bench was:
I am making this ruling now, Mr. Willis, because as I see the urgency of the situation that has arisen during the course of the proceedings, I think I need to do that because you need to know what I am *125 deciding on in the 1978-1979 [sic][7] school year. I think it is going to take considerable work by the School Board on this ruling because it is going to move several hundred students or determine from them whether or not there is a bona fide reason for program transfers and in anticipating it on a program transfer basis rather than an automatic opting out. So, I am telling you that now, so you have plenty of time to work on it, we will continue to do that as we can through this hearing. I will supplement all of this in a written memorandum and give you a chance for appeal and whatever. When I see something I need to address in order to be ready for the 1978-1979 [sic] school season, I will address it.
Thereafter, on August 7, 1979, plaintiffs filed a petition for contempt alleging that the Board had failed to implement in good faith the Court's order. This petition was scheduled for the first order of business at the resumed hearings which began August 21 and continued through August 24, 1979.
From information provided through discovery, plaintiffs introduced statistical summaries of transfers approved, broken out by sending school, receiving school, and by race (Exh. 98). From this exhibit it appears that 326 white students have had transfers approved from Pearl to other high schools in the system. Sixteen blacks and twelve persons of other races were granted transfers from Pearl. All of the transfers from Pearl were subject matter based. The number of transfers from other non-comprehensive high school were:
White Black Other
From Joelton 134 0 0
From Cohn 85 25 2
From Antioch 38 1 0
From Dupont Sr. 32 0 0
From Madison 31 3 0
From Goodlettsville 23 8 0
The impact of these transfers upon the racial mix at Pearl was dramatic. Children assigned to Pearl by applicable residential zones should have produced a racial mix of:
532 white (52%)
36 other ( 3%)
461 black (45%)
After the approved transfers were granted, the resulting totals and percentages were:
206 white (30%)
24 other ( 4%)
445 black (66%)
Additional transfer requests are pending from Pearl of 78 white, 17 black, and 4 other (Exh. 142). If these transfers are approved, the white population will be reduced to 22 percent.
The apparent mass exodus of white students from Pearl under the subject matter transfer raised a serious question in the Court's mind as to the extent of monitoring which defendant Board had exercised in its implementation of the spirit if not the letter of the Court's enjoinder from the bench in July. From the statistical evidence above, the Court found a prima facie case of contempt to have been made and shifted the burden of going forward with the evidence to the defendants.
The School Board explained its procedure in implementing the Court's order as follows:
1. The School Board was informed at its July 10 meeting of the Court's order and the need for modification of the Board's policy.
2. The Board at its July 24 meeting rescinded its optional transfer policy. Dr. Elbert Brooks, Director, Metropolitan Schools, stated to the Board that "students who had made these automatic transfers would be assigned to their original zoned school but would be permitted to request a transfer in order to take a particular program/subject not offered at the student's assigned school."
3. A form letter was developed and signed by Dr. Brooks and sent to all students *126 who for the school year 1978-79 had been assigned to a non-comprehensive high school but had opted to a comprehensive high school under the "automatic option" policy (Exh. 96).
4. A Transfer Committee was established consisting of Mr. Joe Garrett, Chairman, Pupil Accounting and Transfers, Pupil Personnel Services; Dr. Cornell Lane, Psychology, Pupil Personnel Services (a black member); Mr. Bill Hollingsworth, Attendance, Pupil Personnel Services; and Mr. Dan Covington, Vocational and Technical Education. A directive was issued by Dr. Brooks requiring that requests for transfer be forwarded to the office of Mr. Garrett for review by the Transfer Committee. After such review the two affected principals and the students were to be notified.
5. Principal Carnes of Pearl High testified he was informed at two meetings held with other principals and his district superintendent that his sole function was to determine if the requested course was available at his school and, if not, to sign off on the request. This instruction was reiterated by Dr. Brooks in a phone call after a school board member relayed parent complaints to Dr. Brooks about Mr. Carnes' handling of transfer requests. Somewhat inconsistently, the testimony also showed that Mr. Carnes understood and Dr. Brooks also reiterated to him his responsibility to counsel with the student and parents concerning such a transfer.
At some point after the transfers began to be requested, the form for such applications was changed. The material change was the deletion of an addendum which listed courses taken in the previous year, grades received, and courses desired this year. It also required a statement that the program of studies had been discussed with both the principal and guidance counselor and an explanation thereof. Finally, it required a selection of a course not offered at the assigned school and a statement of how the requested course would be beneficial to the student. No satisfactory explanation of the changes in the form was offered by defendants.
Notably after the fact, after the filing of the petition for contempt, Dr. Brooks required a comparison of the subject/program transfers granted with the students preregistration desires indicated last spring (Exh. 137). This comparison as it relates to transfers from Pearl reveals the following: *127
*128 It is apparent from this summary that 69.4 percent of the transfers from Pearl to Hillsboro, 90.3 percent of the transfers from Pearl to Hillwood, and 80 percent of the transfers from Pearl to Glencliff were facially bona fide under the policy of the Board and the understanding of Dr. Brooks, discussed infra. In the case of the one white transfer from Pearl to Glencliff wherein the fall course selection was not selected in the spring, and the spring selection is similar to a course offered at the sending school, and in the case of those 38 transfers to comprehensive high schools in which all courses selected in the spring are offered at Pearl, the transfers are facially suspect.
Dr. Brooks testified that a follow-up interview will be scheduled with each of these individuals in the suspect category in an effort to determine the bona fides of the students' expressed desires. Such a monitoring is consonant with the policy adopted in 1977 by the Board in Section IV(F)(4) of the Student transfer Policy # 5119: "Special transfer requests having evidence of course or program selection and changes in courses scheduled for the purpose of school reassignment will not be approved" (emphasis added).
Dr. Brooks further testified that, in his opinion, there is no reliable way to explore the legitimacy of a subject/program transfer except after the fact. In pursuance of this belief, the chairman of the Transfer Committee developed a three-part monitoring plan, to which Dr. Brooks added a fourth, by which the Board will follow the progress of each transfer student in the requested courses (Exh. 139). Actual enrollment is to be verified and progress checked at six-week and semester intervals and evaluated for renewal of transfer.
The Board's actions before the filing of the contempt petition leaves much to be desired. Dr. Brooks admitted in hindsight that the comparison with spring course selection should have been examined before the fact rather than after. The Court believes that the use of the longer form, changed in midstream apparently in the interest of time, would have produced information for a more objective evaluation of the bona fide nature of the application for transfer.
The statistical evidence of transfers of white students from Pearl gives rise to the inescapable inference that white students, given the opportunity to automatically opt out of the Pearl zone last year, certainly did not wish to return. Perhaps many of these represent legitimate desires to attend a comprehensive high school and take courses offered there but not at Pearl. Black children are not exercising this program/subject opportunity in nearly the equivalent numbers or percentages, however. This may be due in part to a corresponding desire by black students to attend a majority black school; it may be related to the ethnic pride of the black community in Pearl High as an institution. For whatever reason, it is a fact evidenced by the admitted statistics of both 1978-79 and 1979-80 transfers.
The Board has adopted, as a part of its long range plan of construction of comprehensive high schools, a plan to construct an inner city comprehensive high school, to be named Pearl, and at a location either on the present site or at some place in the North Nashville area. Originally, the Board had gone forward with the recommendation of the staff for the closure of Pearl, Cohn, and Joelton high schools upon the theory that none of these locations fit into the judicially imposed directive to locate comprehensive high schools in areas which would encourage and facilitate an integrated school system. Objections by the black community to the closure of Pearl brought about a reversal of this decision within the past year.
Another factor which has impinged upon the School Board's action in regard to Pearl, as well as other non-comprehensive high schools in the system, is the requirement by Tennessee law that all students in grades nine through twelve be given access to a comprehensive high school education by 1978 (T.C.A. §§ 49-2701 et seq.). As long as Pearl and other non-comprehensive high schools were either scheduled for closure or had not yet been converted to a comprehensive *129 facility, the Board felt obligated to provide the "automatic option," or at least the program/subject option on an "as required" basis.
The subject matter/program transfer plan was "loosely conceptualized and leniently administered." (Testimony of Dr. Scott). The Board of Education did not follow its own policies relating to subject matter transfers, specifically Sections IV(A) and IV(F) of the Student Transfer Policy # 5119. No preapproval screening was done to determine how the requested subject fit into a student's career objectives. No effort was made to ascertain if the requested subject correlated with the student's career objectives expressed at spring registration or if, in fact, any change had taken place in those career objectives by the fall registration. No guidance counseling input was sought or received before approval was granted. Transfer approval was automatic if the requested course was not offered at the sending school and if such course was not already full at the receiving school. No effort was made to tabulate course requests and to determine if a sufficient demand existed to establish the requested course as an offering at the sending school. For instance, in applications to transfer away from Pearl, there were at least 38 requests for horticulture, 18 requests for German history, 38 requests for media arts, 34 for computer programming, and 22 for vocational cluster. Such numbers would seem sufficient to establish classes in these subjects at Pearl. It would have been both feasible and reasonable to include a question on the request for transfer form inquiring whether or not the student would be willing to take the requested course at Pearl if it were offered there after a sufficient expression of interest. Such an inquiry was not made.
The looseness of the administration of the subject matter/program transfer policy and its pro forma approval can have no other effect than to emasculate any efforts at desegregation. Zoning becomes a farce under the expressed attitude of Dr. Brooks as to his understanding of a student's automatic right to course offerings at another school. Many of these courses have no relationship whatsoever to the vocational program outlined in T.C.A. §§ 49-2701 et seq. As this Court reads that law, the variety of vocational offerings in the Metropolitan School System is not required to be duplicated at every school nor is every student required by this law to be given access to every course at every school.
The Court finds that the school board policy for subject matter/program transfers, although racially neutral on its face, by the manner in which it has been implemented and the inherent potential for abuse in its conceptualization, has a negative impact upon the desegregation efforts of the School Board pursuant to the previously issued order of this Court, and violates the spirit of the 1971 order, and the spirit of the order of this Court issued orally on July 2, 1979.
The Court, however, does not find defendants in contempt of the July 2, 1979, order of this Court. In that order, the Court directed defendants to abolish the optional transfer plan. It is indisputable that defendants complied with that order. In the July 2, 1979, order the Court did not deal specifically with the subject matter/program transfer plan, which was the central issue of the recent hearing. As the Court of Appeals for the Sixth Circuit has recently held, "The notice of a judicial order upon violation of which a contempt finding may properly be based is such notice as would clearly tell a reasonable person what he is required to do or abstain from doing." Reed v. Cleveland Bd. of Educ., 607 F.2d 749, 752, (6th Cir. 1979). It would violate due process to hold defendants herein in contempt for their implementation of the subject matter/program transfer plan when the Court did not address the matter with that degree of specificity necessary under the standard hereinabove set out.
It is, therefore, ORDERED that:
1. The School Board reexamine and submit to this Court for approval by September 7, 1979, a revision of its subject matter/program *130 transfer policy designed to provide methods by which transfer applications may be objectively judged prior to approval, to determine their validity in the educational objectives of the individual student, as opposed to a subterfuge on the part of a student to escape a given school or subvert the zones established for the purpose of achieving a unitary school system.
2. The School Board shall conduct a review of each of the transfer applications that have been heretofore approved as well as those now pending. Such a review will include an interview with both the student and parent or guardian. After such review, the Board will make written findings in each case of the validity of the request. A procedure will be established to obtain the recommendation of the principals from the sending and receiving schools and the judgment of the transfer committee. Such a procedure will also make provisions for an appeal to the Director. The decision of the Director, on appeal, shall be in writing and shall include the supporting reasons for his decision. Such a review of all previously granted requests will be made by September 7, 1979. The defendants will give first priority to reviewing those previously granted requests for transfers out of Pearl High School.
3. By September 7, 1979, the School Board shall submit to the Court for its approval recommendations relating to a plan to establish additional classes at Pearl and/or other non-comprehensive high schools when the number of requests for transfers from such sending schools are sufficient to justify the establishment of such classes. This order does not suggest or require the conversion of all high schools into comprehensive high schools. The Board will necessarily make value judgments between establishing courses such as computer sciences or vocational clusters, on the one hand, which may not be economically feasible to develop at, for example, Pearl, and establishing courses such as German history, horticulture, and guitar, which would not require mass expenditures if such courses were offered at Pearl.
4. Those students whose requests for transfer have been heretofore approved will register at and begin attending the school to which they requested to be transferred. The School Board shall reassign to the schools to which the students were originally zoned those students whose requests for transfer the transfer committee and/or the Director finds to be less than bona fide and reassign to the original zoned school those students who requested a course subsequently offered at that school, under paragraph three of this order.
5. Those students whose requests for transfer are pending and those students who have not yet requested transfer will register at and attend the school to which they were originally zoned until such time as the defendants evaluate their requests for transfer under the revised plan.
6. Pursuant to the order and memorandum, filed August 27, 1979, the defendant Board may grant the application of any senior (as defined in that memorandum opinion), who requests transfer from a high school to which he is zoned to the high school to which he attended as a junior in the year 1978-79.
The Court does not intend to alter the provision of the 1971 Court order, incorporated in Section XI of the Board's policy # 5119 (Exh. 21), that allowed students to transfer from "majority to minority" schools. Such provision has previously permitted a student, who is a member of the majority race in a particular school, to transfer automatically, without a program related reason, to the closest school in which that student would be a member of the minority race. The Court, however, will not condone transfers from, for example, Pearl, by white students in grades nine through eleven, when the effect of such a transfer will be to convert the majority at the sending school into a minority, or convert the minority at the receiving into a majority. The Board shall allow any student to transfer from a school in which he is presently in a majority to any school in which he would be at that time a member of a minority, in accordance with the defendants' *131 previous majority to minority plan. If, however, by the operation of the revised transfer plan and/or the majority to minority plan, the racial mix is altered so that a student in grades nine through eleven would not be transferring from a school in which he is presently a member of a majority to a school in which he would be at that time a member of a minority, the majority to minority rule will not justify approval of a request to transfer.
The Court recognizes that the foregoing directives are temporary and will be obviated by the completion of the comprehensive high school program.
MEMORANDUM
Defendants have moved this Court to exclude those students who will be seniors in the year 1979-80 from the Court's order of August 24, 1979, relating to subject matter/program transfers. Plaintiffs have responded in opposition to defendants' motion.
In her affidavit attached to defendants' motion, Dr. Peggy Harris, research assistant for defendant Board of Education, states that the sixty-six white students, designated as seniors for the year 1979-80, have requested and been approved for transfer from Pearl to a comprehensive high school. This figure represents approximately 20 percent of the 326 white students in grades nine through twelve, originally zoned to Pearl, whose requests for transfers out of Pearl have been approved (Exh. 98). In addition, Dr. Harris stated that there were presently thirteen requests for transfer out of Pearl from white seniors whose applications were pending decision by defendant Board.
In defendants' motion, they note the testimony elicited at the recent hearing from Leslie Carnes, Principal of Pearl High School, and Dr. Elbert Brooks, Director of Metropolitan Schools, regarding the special status of seniors who may have bought senior rings and made plans to participate in athletic and extracurricular activities. Plaintiffs, however, point out that the problems of seniors were not the subject of extensive proof at the hearings. They, therefore, argue that the special situation of each senior should be evaluated by the defendant Board on an individual basis when the Board reconsiders its prior grant of approval of transfer requests and initially considers pending transfer requests. Although plaintiffs contend that it is not equitable to permit those who have achieved a wrongfully acquired status to profit from such status, they also appear to be sensitive to the potential special needs and problems of seniors.
This Court has found that the previously utilized optional transfer plan and the Board's recent implementation of the subject matter/program transfer plan had a debilitating effect on desegregation efforts in this school system. Toward the end of halting the rapid trend of reversion to an almost totally black inner city school, the Court ordered that the optional transfer plan be terminated and the method by which the program transfers were granted be radically revised so that program transfers could be based on bona fide educational reasons rather than on a means to escape a traditionally black, inner city school.
The Court has attempted to fashion a remedy that will eliminate the negative effects of the previous policies of defendant Board. In fashioning such a remedy, however, it is the Court's responsibility to balance the relative detriments and benefits to the school children, who will be affected by the Court's order. The Court cannot decree in a theoretical void; it must be cognizant of the specific situations involved and the harm that may befall individual children. The Court is not insensitive to the special status of high school seniors who have made plans according to the assumption that they would be attending the same school for their last year as they attended their junior year. Such plans may have entailed expenditure of money for class rings and senior pictures, and a commitment to participate in, inter alia, athletic and band activities, school clubs, and student government. To destroy a student's plans for the last year of high school and to wrest him away *132 from the school he has known and the friendships he has developed has the potential for thwarting a child's academic and social adjustment and fulfillment of his educational goals. To uproot a child who has spent at least the last year in anticipation of completing his high school education in the same environment offends this Court's sense of justice. The potential harm in such upheaval weighs heavily in favor of an exclusion for seniors from the revised transfer plan.
The Court, therefore, grants defendants' motion to exclude seniors from the Court's order of August 24, 1979. The Court will permit the defendant Board to grant the application of any senior who requests transfer from a school to which he is zoned to the high school to which he attended as a junior in the year 1978-79. The Court adopts the definition of "senior" used by defendants as any student who, based on his number of credit hours, is capable of graduating from high school during the regular school year of 1979-80 plus the summer school term of 1980. An exemption for seniors will be incorporated into the final version of the Court's order of August 24, 1979. This order of exemption of seniors from the revised program transfer plan will be in effect only for the year 1979-80, and will not be extended beyond that year.
NOTES
[1] Throughout the pendency of this case until and during the recent hearings, the parties have filed various motions relating to discovery matters. The Court has ruled on substantially all discovery issues as they have arisen. Such matters are, therefore, not listed above as pending motions.
[2] Subsequent to the May 30, 1973, petition, defendants have filed various letters to inform the Court of their plans and actions taken relating to the projects detailed in the petition.
[3] Plaintiffs had previously filed motions for attorneys' fees on February 8, 1974, and April 11, 1975, as well as a motion to dispose of those motions, filed on October 16, 1975.
[4] On May 29, 1979, defendants filed an amendment to the list of capital improvements and to proposed attendance zones, in which plaintiffs deleted from the May 30, 1973, petition a request for approval for an Interstate 40 West comprehensive high school, and substituting a plan for an inner city comprehensive high school, and modified the proposals relating to Antioch, Dupont, and Bellevue high schools. On July 6, 1979, the Court granted the defendants' amendment to their request for approval of certain building projects, in which defendants withdrew their request for approval of construction of Antioch High School, the Glengarry Elementary School project, the Jordonia-Wade Elementary School project, and omitted the projects proposed for Dupont and Bellevue high schools.
[5] The most dramatic example of such resegregation can be seen in enrollment statistics for Pearl High School for the school years 1970-71 through the projections for 1979-80, compiled in Exhibit 87, as follows:
[6] Exhibit 20 itemizes the number of students who transferred to a comprehensive high school from non-comprehensive high schools in 1978-79 under the optional transfer program. Interpolating these figures to reflect the number of students transferring from Pearl and other non-comprehensive high schools to comprehensive high schools, the resulting chart is as follows:
School White Black Other Total
From Pearl 290 21 12 323
to Glencliff 34 0 0 34
to Hillsboro 35 10 2 47
to Hillwood 220 8 10 238
to Overton 1 3 0 4
From Antioch 62 5 0 67
to Glencliff 62 5 0 67
From Apollo Jr. 50 1 0 51
to Glencliff 50 1 0 51
From Bellevue 8 0 0 8
to Hillsboro 8 0 0 8
From Cohn 66 19 0 85
to Hillsboro 31 14 0 45
to Hillwood 35 5 0 40
From Madison 47 2 0 49
to Maplewood 1 0 0 1
to Whites Creek 46 2 0 48
From Dupont (Jr. & Sr.) 37 4 0 41
to McGavock 37 4 0 41
From East 10 3 0 13
to Stratford 10 3 0 13
From Goodlettsville 68 5 0 73
to Whites Creek 68 5 0 73
From Joelton 149 0 0 149
to Whites Creek 149 0 0 149
From Neely's Bend 3 0 0 3
to Whites Creek 3 0 0 3
Total 790 60 12 862*
* Exhibit 20 also reflects that 11 white students transferred from Hillsboro to
Hillwood. Since those transfers are not from non-comprehensive schools to comprehensive
high schools, they are not listed in the above chart.
[7] The Court erroneously referred to the school year 1978-79. The Court, of course, intended to refer to the school year 1979-80.
[*] 9th Grade Added | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264070/ | 479 F.Supp. 57 (1979)
R. M. RODDY et al., Plaintiffs,
v.
UNITED TRANSPORTATION UNION and Alabama State Legislative Board, United Transportation Union, Defendants.
No. CA 77-H-1638-S.
United States District Court, N. D. Alabama, S. D.
April 19, 1979.
*58 Charles H. Huey, Cooper & Huey, Birmingham, Ala., for plaintiffs.
Clarence M. Small, Jr., and Thomas A. Carraway, Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, Ala., for defendants.
MEMORANDUM OF DECISION
HANCOCK, District Judge.
The motion of defendants for summary judgment was argued orally on December 8, 1978, at which time counsel requested an additional 90 days for submission of additional verified material and supplemental briefs addressed to the motion. Substantial material has been submitted, and in addition the plaintiffs have amended their complaint. The motion for summary judgment, being viewed as addressed to the amended complaint, is now submitted for a decision. Also before the court is the cross-motion for summary judgment filed by plaintiffs on *59 March 22, 1979. The following facts are not in dispute.
United Transportation Union (UTU) is a "labor organization" as defined in 29 U.S.C. § 402 and operates under a constitution which has been duly filed in accordance with 29 U.S.C. § 431. Under Article 93 of that constitution the legislative representatives, elected pursuant to Article 57 by the various locals of UTU situated in the State of Alabama, constitute the Alabama State Legislative Board (Board) which has promulgated its own set of by-laws. There are presently 13 such locals in Alabama and consequently there are 13 members of the Board. The Board does not have its own constitution but relies upon the constitution of UTU for its existence. The Board is viewed by the U. S. Department of Labor as a labor organization within the meaning of the Labor-Management Reporting and Disclosure Act of 1959, 42 U.S.C. §§ 401, et seq. (LMRDA) and has been so viewed for a number of years. The Board likewise considers itself a labor organization and files the annual financial reports with the Secretary of Labor as required by 29 U.S.C. § 431.
The duties of the Board, set out in Article 95 of UTU's constitution, fall under two major categories: politics and safety. Prior to each primary and general election in the state, the Board is to convene for the purpose of endorsing or making recommendations for candidates in the election. The Board monitors the activities of the state legislature to keep the membership informed of matters of interest and may authorize its State Legislative Director (Director) to campaign for or against the enactment of particular bills. The Director, Noah Flannigan, is a registered lobbyist in the State of Alabama and is one of two full time employees of the Board. The other full time employee is a secretary.
The Board, acting through the Director, has the responsibility of protecting the general welfare of the members of UTU by reporting violations of state laws or regulations and by appearing before appropriate agencies as a representative of UTU. The Board's authority does not extend to any direct dealings with employers of members of UTU and it does not participate in any negotiations with these employers or in any functions at the local level. All dues are collected by the locals and sent directly to UTU, including the assessments questioned in the present case. Those assessments are placed in a State Legislative Advance Fund (Fund) earmarked for the Board and are not comingled with assessments levied by similar state boards. The Board is reimbursed from the Fund for its expenses, including wages and other allowances, by the UTU treasurer upon the submission of the original receipts and itemized expenses to UTU. All expenses are scrutinized by UTU and must comply with both the guidelines set out by UTU and the by-laws of the Board. The UTU performs most of the banking and accounting functions involved with the Fund and files with the Secretary of Labor the Board's financial reports required to be filed by labor organizations under 29 U.S.C. § 431.
For some time prior to January 1, 1977, each member of the thirteen Alabama locals affiliated with UTU was assessed $1.35 per month to maintain the Fund in conformity with Article 94 of the constitution of UTU. At a meeting of the 7-member executive committee of the Board held on September 3, 1976, a majority of the executive committee voted to increase the monthly assessment to $2.50 per member per month. Pursuant to directions of the executive committee, and in accordance with Article XIII of the Board's by-laws and Article 94 of UTU's constitution, the entire membership of the Board, viz, 13 members, was submitted a written ballot by mail on the issue of whether the assessment should be so increased and a majority of the membership of the Board voted in favor of the increase. Thereafter, the officers and members of the 13 Alabama locals affiliated with UTU received a notice that the increase would become effective on January 1, 1977. Except to the extent that the foregoing may constitute such approval, the increase was not approved by any Alabama local in accordance with 29 U.S.C. § 411(a)(3)(A) and was *60 not approved by UTU in accordance with 29 U.S.C. § 411(a)(3)(B).
Plaintiff, a member of UTU and its affiliated Local No. 847 in the State of Alabama, on behalf of himself and all other members of the 13 locals in Alabama affiliated with UTU, filed this action against UTU and the Board challenging the validity of the increase in the assessment. The challenge is not directed at a failure to comply with the constitution of UTU or the by-laws of the Board. Rather the challenge is directed at the failure of defendants to comply with the LMRDA. The relevant portions of the LMRDA establish a "Bill of Rights" for members of all labor organizations which protects those members from actions taken by officers of labor organizations without proper democratic safeguards. Plaintiffs contend that dues were increased for the Alabama local chapters of UTU without compliance with those safeguards. More specifically, plaintiffs take the position that the Board is not a "labor organization" within the meaning of the LMRDA, but is merely an alter ego or legislative arm of UTU. In support of this position, plaintiffs argue that the Board is not chartered, has no separate constitution, does not represent employees with employers, is a state or central body and is not autonomous. In the alternative, plaintiffs argue that even if the Board is a labor organization, it has not complied with 29 U.S.C. § 411(a)(3)(B) in effecting the increase and hence the increase must be struck down. The merits of these arguments are discussed below.
The threshold issue presented by the pending motion is whether the Board is a "labor organization," as defined in 29 U.S.C. § 402(i), or whether the Board is merely an arm of UTU which admittedly is a "labor organization." The LMRDA defines a "labor organization" as a labor organization engaged in an industry affecting commerce and specifically includes (1) any organization so engaged (a) in which employees participate and (b) which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, or conditions of employment, and (2) any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization, other than a state or local central body. 29 U.S.C. § 402(i). A labor organization is engaged in an industry affecting commerce if it is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization so engaged, unless it is a state or local central body. 29 U.S.C. § 402(j)(5). While the statute expresses an intent to bring within the ambit of the LMRDA all organizations not expressly excluded, the regulations promulgated thereunder more clearly express this intent:
In accordance with the broad language used and the manifest congressional intent, the language will be construed broadly to include all labor organizations of any kind other than those clearly shown to be outside the scope of the Act. 29 C.F.R. § 451.2.
Regardless of whether it deals with employers concerning terms and conditions of employment and regardless of whether it is composed of employees, any conference, general committee, joint or system board, or joint council engaged in an industry affecting commerce and which is subordinate to a national or international labor organization is a "labor organization" for purposes of the Act. 29 C.F.R. § 451.3(b).
UTU is an international labor organization engaged in an industry affecting commerce. Under its constitution the Board has been created as a subordinate board jointly consisting of the 13 locals in Alabama affiliated with UTU. Unless it is a state or central body, it must be viewed as a separate "labor organization" under LMRDA, and the absence of its own constitution does not prevent the Board from being a "labor organization." Indeed, the absence of a separate constitution is consistent with the required element of subordination to an international labor organization. The regulations provide that an organization subject to the filing requirements of the LMRDA *61 may adopt, by virtue of affiliation, the constitution of the parent organization and may reference the parent's copy in lieu of filing its own copy. 29 C.F.R. § 402.3. Neither does the absence of direct dealings with employers prevent the Board from being a "labor organization" for the § 402(i) does not require that type activity of a joint board which is subordinate to an international labor organization such as UTU. The remaining reason given by plaintiffs to support their argument that the Board is not a labor organization, viz, that the Board is a state or central body, is without merit. The Board is subordinate to and associated with only one international labor organization, and the regulations expressly provide that an organization of local unions or subordinate bodies of a single international union is not a state or local central body. 29 C.F.R. § 451.5(b). In summary, the court is of the opinion that the Board is a "labor organization" as defined in 29 U.S.C. § 402(i).
Before resolving the remaining issue of whether the Board has complied with 29 U.S.C. § 411(a)(3)(B), the membership of the Board must first be identified. Plaintiffs argue that only the 13 legislative representatives are its "members" and thus the Board may only increase the dues of those representatives. Defendants argue that all members of the 13 locals supplying their respective legislative representatives are "members" and thus the Board may increase the dues of all members of those 13 locals. There is a third possibility, not argued by the parties, which would have the 13 locals themselves the "members" of the Board and thus the Board could only increase dues of the 13 locals, leaving it to those locals to determine how they would raise the assessments.
While the matter is certainly not free from doubt, the court is of the opinion that all members of the 13 locals are "members" of the Board. Plaintiffs argue against this by pointing out the absence of any provision to this effect in either the Board's by-laws or UTU's constitution. But plaintiffs would concede that all members of the 13 locals are "members" of UTU, yet Article 2 of UTU's constitution expressly provides that the membership of UTU consists of "One Delegate from each Local." In Article 93 of that constitution, which directs the formation of the Board, the purpose for that formation is stated to be the protection of the legislative interests "of the members under its jurisdiction." And Article 94 of that constitution, which requires the Board to maintain the Fund, directs that the Fund be maintained "through assessments levied upon the members under their jurisdiction." The members of the 13 locals electing their legislative representatives under Article 57 of that constitution must be viewed as members under the jurisdiction of the Board and hence subject to assessments by the Board.[1]
The final issue, then, is to decide if the raise was properly accomplished. As a labor organization, the Board may raise dues only after approval by (1) a convention, (2) a membership referendum, or (3) the labor organization's executive board or similar governing body pursuant to express authority in the constitution and the by-laws of the organization. 29 U.S.C. § 411(a)(3)(B). A raise under this third alternative is temporary and is effective only until the next regular convention of the organization. It seems clear that the representatives of the 13 Alabama locals comprise the "executive board or similar governing body" of the Board, and it is undisputed that express provisions of UTU's constitution and the Board's by-laws authorizing an increase in dues were satisfied with regard to the increase in the per member monthly assessment from $1.35 to $2.50. While the route selected for raising the dues limits the increase only until the 1980 regular convention, this does not affect the validity of that increase. Having *62 raised the dues under 29 U.S.C. § 411(a)(3)(B)(iii), the raise will be ineffective after the next regular convention unless the raise is accomplished under either § 411(a)(3)(B)(i) or § 411(a)(3)(B)(ii).
There is no dispute as to any material fact, and for the reasons stated herein the court is of the opinion that defendants are entitled to a judgment as a matter of law. A separate judgment will be entered.
NOTES
[1] The court notes that while Article 2 of UTU's constitution establishes the members of UTU as consisting of a single delegate from each local, Article 12 permits UTU to assess monthly dues on "all members employed in transportation service." The court does not view this as authorizing assessments only against the single delegate from each local. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2567664/ | 182 P.3d 762 (2008)
TIREY
v.
MAHONEY.
No. OP 08-0066.
Supreme Court of Montana.
February 13, 2008.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340001/ | 660 S.E.2d 82 (2008)
STATE of North Carolina, Plaintiff,
v.
Joshua David SMITH, Defendant.
No. COA07-172.
Court of Appeals of North Carolina.
May 6, 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Sarah Y. Meacham, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, and Kirby H. Smith, III, New Bern, for defendant-appellant.
STROUD, Judge.
Defendant appeals from judgment entered 27 January 2006 sentencing him to 196 to 245 months for first degree sexual offense and *85 indecent liberties with a child. We conclude: (1) the State did not present sufficient evidence to convict defendant of first degree sexual offense, and (2) defendant was prejudiced by errors such that he did not receive a fair trial for indecent liberties. Accordingly, we reverse defendant's conviction for first degree sexual offense, and we grant defendant a new trial on the charge of indecent liberties with a child.
I. Background
The testimony presented at trial tended to show the following: In December 2002, defendant, then twenty-one years old, lived in Lawndale, North Carolina, with his girlfriend Cassie and their three-month old daughter, "Kathy". The prosecutrix, "Karen",[1] who was twelve years old at the time, lived in Lawndale with her grandmother, mother and her nineteen year-old brother Jonathan. Karen knew Cassie prior to December 2002, as Jonathan and Cassie had previously had a romantic relationship. Karen first met defendant shortly before Christmas 2002, when Cassie introduced them. Defendant was also Jonathan's friend, and defendant, Cassie and Jonathan often socialized together in the evenings.
Around Christmas 2002, defendant and Cassie visited in Jonathan and Karen's home on two consecutive evenings.[2] On one of the visits ("Visit 1"), defendant brought alcohol which he shared with Jonathan and a fifteen year-old neighbor while they smoked marijuana; defendant drank until he passed out. On the other visit ("Visit 2"), the evidence is conflicting as to whether defendant was sober or drunk.
Defendant asserted that during Visit 1 he awoke from his drunken stupor to find Karen sitting between his legs with her hands on his penis, preparing to perform fellatio. Karen asserted that defendant made lewd comments to her during Visit 1, but she had no sexual contact with him.
During Visit 2, defendant, accompanied by Karen and Kathy, left Cassie and Jonathan to return home in order to pick up milk and diapers for Kathy. Karen testified that once they were inside defendant's home, he pushed her down on the bed, removed her clothing and inserted his penis into her vagina. To the contrary, defendant testified that he had told Karen to stay in the truck with Kathy while he went inside the house to get the milk and diapers, and that even though she came into the house briefly, they had no physical contact.
On 14 April 2003, the Cleveland County Grand Jury indicted defendant for first degree rape of a child pursuant to N.C. Gen. Stat. § 14-27.2(a)(1), first degree sexual offense pursuant to N.C. Gen.Stat. § 14-27.4, and indecent liberties with a child pursuant to N.C. Gen.Stat. § 14-202.1, each with a stated offense date of 26 December 2002. The indictments referenced the statutes under which defendant was charged and identified the date of offense for each crime as 26 December 2002, but did not allege any specific sexual acts upon which defendant was charged, as allowed by N.C. Gen.Stat. § 15-144.1 and § 15-144.2(b) (2001).
Defendant was tried before a jury from 24 to 27 July 2006. At trial, at the close of the State's evidence and at the close of all the evidence, defendant moved to dismiss all of the charges against him, and these motions were denied. The trial court instructed the jury on first degree rape of a child under the age of thirteen, first degree sexual offense with a child under the age of thirteen, attempted first degree sexual offense, and taking indecent liberties with a minor child.
On 27 July 2006, the jury found defendant guilty of first degree sexual offense with a child under thirteen and guilty of taking indecent liberties with a child, but not guilty of first degree rape of a child. The trial court consolidated the offenses for sentencing and ordered that defendant be imprisoned for a minimum of 196 and a maximum of 245 months in the North Carolina Department of Corrections. Defendant gave notice of appeal in open court.
*86 II. First Degree Sexual Offense
Defendant first assigns error to the trial court's denial of his motion to dismiss the charge of first degree sexual offense. He contends that the State failed to present substantial evidence that he had been involved in a sexual act with Karen. Specifically, he relies on the corpus delicti rule as stated in State v. Sinclair, 43 N.C.App. 709, 259 S.E.2d 808 (1979), contending that "a felony conviction may not be based upon or sustained by a naked extrajudicial confession of guilt uncorroborated by any other evidence," id. at 711, 259 S.E.2d at 809 (citation and quotation omitted).
A criminal defendant may
move to dismiss a criminal charge when the evidence is not sufficient to sustain a conviction. Evidence is sufficient to sustain a conviction when, viewed in the light most favorable to the State and giving the State every reasonable inference therefrom, there is substantial evidence to support a jury finding of each essential element of the offense charged, and of defendant's being the perpetrator of such offense. The denial of a motion to dismiss for insufficient evidence is a question of law, which this Court reviews de novo.
State v. Bagley, ___ N.C.App. ___, ___, 644 S.E.2d 615, 621 (2007) (internal citations, brackets and quotation marks omitted). On review of a motion to dismiss, "[t]he defendant's evidence, unless favorable to the State, is not to be taken into consideration, [although if] it is consistent with the State's evidence, the defendant's evidence may be used to explain or clarify that offered by the State." State v. Denny, 361 N.C. 662, 665, 652 S.E.2d 212, 213 (2007) (internal citations and quotation marks omitted).
When the State relies on a defendant's extrajudicial statement to establish guilt of a felony, the extrajudicial statement alone is not sufficient to sustain a conviction. Sinclair, 43 N.C.App. at 711, 259 S.E.2d at 809. An extrajudicial statement must be supported by (1) "corroborative evidence, independent of defendant's confession, which tends to prove the commission of the charged crime[,]" State v. Sloan, 316 N.C. 714, 725, 343 S.E.2d 527, 534 (1986); or (2) "strong [independent] corroboration of essential facts and circumstances embraced in the defendant's confession" which tends to establish the trustworthiness of the confession, State v. Parker, 315 N.C. 222, 236, 337 S.E.2d 487, 495 (1985) (emphasis in original). In a prosecution for a sexual offense, corroboration need not necessarily come from the victim herself, State v. Cooke, 318 N.C. 674, 679, 351 S.E.2d 290, 292 (1987) ("[T]here is no requirement that the victim testify before the accused may be convicted."), but whatever the source, the corroborating evidence must do more than merely "raise a suspicion or conjecture" as to the commission of the offense. State v. Mueller, ___ N.C.App. ___, ___, 647 S.E.2d 440, 447, cert. denied, 362 N.C. 91, 657 S.E.2d 24 (2007).
A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim[.]
N.C. Gen.Stat. § 14-27.4(a)(1) (2001).
"Sexual act" means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body[.]
N.C. Gen.Stat. § 14-27.1(4) (2001) (emphasis added). "[F]ellatio is any touching of the male sexual organ by the lips, tongue, or mouth of another person." State v. Johnson, 105 N.C.App. 390, 393, 413 S.E.2d 562, 564, disc. review denied and appeal dismissed, 332 N.C. 348, 421 S.E.2d 158 (1992).
The State relied on the following extrajudicial statement of defendant, as testified to by Detective Debbie Arrowood:
Joshua stated to me that he was at [Karen's] house a couple of days before [Visit 2] and he had been drinking. Joshua stated he was in Jonathan's bedroom, who is [Karen's] brother, and he was lying on the bed. Joshua stated [Karen] came in the room and was coming on to him. Joshua told me that [Karen] took her pants off, [and] laid down beside him on the bed. *87 Joshua stated [Karen] wanted him to do oral sex on her, but he wouldn't do it. Joshua stated [Karen] unzipped his pants, took out his penis, and tried to give him a blow job. Joshua stated he couldn't get it up because he had been drinking, so [Karen] stopped.
The State contends that defendant's extrajudicial statement was corroborated by (1) Jonathan's testimony that "[defendant] was upset when he come [sic] out of Ms. Arrowood's office. . . . I asked him what happened, you know, and he told me that he had, you know, failed, and he admitted to having oral sex with [Karen;]" (2) testimony from Karen, Jonathan and defendant that Visit 1 did in fact occur and that defendant passed out from excessive drinking at Karen's home; and (3) defendant's own trial testimony.
The relevant portion of defendant's trial testimony is as follows:
I passed out . . . fully clothed.
. . . .
I was awakened a couple hours after I had passed out.
. . . .
When I came to, I felt something on me. I didn't know what it was, who it was. I panicked. I was frightened, shocked, and all in one motion, I rose up and kicked. And when I kicked, I looked in the floor and it was [Karen] sitting in the floor. I jumped up and I asked her what the hell she was doing. I zipped my pants up. I remember rubbing my eyes, rubbing my head, trying to collect myself and still, still drunk, not collected, hung over, and she was begging me not to say anything to her mother: "Please don't tell mama; please don't tell Cassie; please don't tell Jonathan."
. . . .
It was a feeling that it's not like being tapped on the shoulder. It's a feeling not being tapped on your forehead, being shook. It's a private position a private place that's a sensitive area, and I felt something on my penis.
. . . .
I jumped and kicked and pushed with my leg all at once, and it knocked [Karen] back into the dresser that was across from the bed, on the floor.
We conclude that none of the evidence relied on by the State to corroborate defendant's statement to Detective Arrowood is sufficient to survive defendant's motion to dismiss the charge of first degree sexual offense. Jonathan's testimony as to what defendant told him after defendant left the office of Detective Arrowood was not "independent of defendant's confession," Sloan, 316 N.C. at 725, 343 S.E.2d at 534, therefore it has no more probative value than the more detailed statement which defendant gave to Detective Arrowood and does nothing to corroborate defendant's statement to Detective Arrowood. The testimony of Karen, Jonathan and defendant that Visit 1 did indeed occur, and that defendant drank until he passed out corroborates some of the circumstances of defendant's confession, but it does not strongly corroborate any essential fact. See Parker, 315 N.C. at 236, 337 S.E.2d at 495 (holding that when the victim's dead body and the clothes the defendant wore while committing the murder were the same as described in the defendant's confession and the victim's blood stains were found in a second victim's stolen car, the evidence contained sufficient corroboration of the defendant's confession to support the defendant's conviction for armed robbery even though there was no evidence of the missing property). Defendant's own trial testimony does not provide evidence of the corpus delicti for sexual offense in the case sub judice-that Karen's mouth, tongue or lips touched defendant's penis. It serves only to clarify what defendant meant by "[Karen] . . . tried to give [me] a blow job[,]" in his statement to Detective Arrowood.
In reviewing the cases decided since Parker, we find no set of facts with so very little corroborative weight or substantial independent evidence to establish the trustworthiness of a defendant's extrajudicial statement. See, e.g., State v. Johnson, 317 N.C. 343, 373-74, 346 S.E.2d 596, 613 (1986) (bruises, marks and torn clothing on the victim's body, semen in the victim's vagina, bloodstains in the defendant's *88 car and on his knife were sufficient to corroborate the defendant's admission); Sloan, 316 N.C. at 725-26, 343 S.E.2d at 534 (discovery of the victim naked from the waist down, discovery of the victim's shorts and panties with semen on them on the kitchen floor, and the victim's testimony that she had been beaten and stripped of her clothing were sufficient to support a rape conviction when the defendant admitted "[he] did it"); State v. Sims, 174 N.C.App. 829, 833, 622 S.E.2d 132, 135 (2005) (a controlled buy of twenty-six grams of cocaine from the defendant in his home before arrest and discovery of 181 grams of cocaine on the defendant's person at arrest were sufficient to corroborate the defendant's confession to trafficking in more than 400 grams of cocaine), disc. review denied, 360 N.C. 367, 630 S.E.2d 451 (2006).
Many of the events which were occurring in Karen's home around Christmas 2002 were appalling, and no doubt the jury found them so as well. The evidence indicates that defendant was drinking to excess, providing alcohol to persons who were underage, driving while impaired by alcohol, permitting teenagers to use marijuana in his presence, and making lewd comments to a young girl. Karen was apparently mistreated by many, including defendant. However, we also recognize that "[n]o matter how disgusting and degrading defendant's conduct as depicted by the witness may have been, his conviction should not be sustained unless the evidence suffices to prove the existence of each essential ingredient of the crimes for which he was being tried." State v. Robinson, 310 N.C. 530, 534, 313 S.E.2d 571, 574 (1984) (citation and quotation marks omitted) (emphasis added).
We hold that where the victim did testify at trial but failed to testify as to any sexual act[3] with defendant and where the victim never made any prior statement that any sexual act ever occurred with defendant, and where no other strong corroborating evidence of the defendant's extrajudicial statement is offered by the State, the defendant's extrajudicial statement alone is not sufficient to support his conviction for first degree sexual offense. The judgment of the trial court as to first degree sexual offense is reversed with instructions to dismiss the charge of first degree sexual offense against defendant.
III. Indecent Liberties
Defendant also moved to dismiss the charge under N.C. Gen.Stat. § 14-202.1 for indecent liberties. To survive a motion to dismiss for indecent liberties, the State must present substantial evidence of each of the following elements:
(1) the defendant was at least 16 years of age, (2) he was five years older than his victim, (3) he willfully took or attempted to take an indecent liberty with the victim, (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred, and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire.
State v. Stanford, 169 N.C.App. 214, 216-17, 609 S.E.2d 468, 470 (citation omitted), disc. review denied and appeal dismissed, 359 N.C. 642, 617 S.E.2d 657 (2005).
[I]t is not necessary that defendant touch his victim to commit an immoral, improper, or indecent liberty within the meaning of the statute. Thus it has been held that the photographing of a naked child in a sexually suggestive pose is an activity contemplated by the statute, as is masturbation within a child's sight, and a defendant's act of exposing his penis and placing his hand upon it while in close proximity to a child. These decisions demonstrate that a variety of acts may be considered indecent and may be performed to provide sexual gratification to the actor. Indeed, the legislature enacted section 14-202.1 to encompass more types of deviant behavior, giving children broader protection than available under other statutes proscribing sexual acts.
State v. Etheridge, 319 N.C. 34, 49, 352 S.E.2d 673, 682 (1987) (internal citations and quotations omitted).
*89 Viewing the evidence in the light most favorable to the State, even though the jury's acquittal of defendant of rape shows that they disbelieved at least part of Karen's account of the facts, the evidence does support a finding that defendant undressed Karen and exposed his penis to her at his home. This evidence is sufficient to support defendant's conviction for indecent liberties with a child. Etheridge, 319 N.C. at 49, 352 S.E.2d at 682 (defendant's actions in ordering his victim to undress and lie down, then exposing his penis before proceeding with the act of intercourse fell "well within the broad category of indecent liberties"). This assignment of error is therefore overruled.
Defendant next contends that the trial court committed plain error by not requiring the State to identify the alleged acts by defendant which were the basis of the sex offense and indecent liberties charges and by not identifying the basis for these charges to the jury in its instructions. Due to our ruling as to the sex offense charge above, we need only address defendant's assignment of error as to indecent liberties. Defendant failed to object to the jury instructions, so we review the instructions only for plain error. N.C.R.App. P. 10(c)(4).
Plain error with respect to jury instructions requires the error be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected. Further, in deciding whether a defect in the jury instruction constitutes plain error, the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.
State v. Wood, ___ N.C.App. ___, ___, 647 S.E.2d 679, 684, disc. review denied, 361 N.C. 703, 655 S.E.2d 402 (2007) (internal citations, brackets and quotation marks omitted). As we noted above, defendant argues that the State never clearly identified which acts it claimed constituted indecent liberties. Certainly, after exhaustive review of the transcript and record, we have been unable to discern which acts the State claimed at trial constituted indecent liberties. Even the State notes in its brief that "[t]he evidence below showed a single incident when Defendant allegedly received fellatio from [Karen] on Defendant's overnight stay in [Karen's home]. There was no other evidence which would tending [sic] to prove a first degree sexual offense or indecent liberty[.]" (Emphasis added.)
However, we have determined above that there was other evidence of indecent liberties, based upon defendant's undressing Karen and exposing himself to her. When we consider the entire record, the instructions as a whole, and the fact that the trial court erred in its failure to grant defendant's motion to dismiss the first degree sexual offense charge, we conclude that the jury probably would have reached a different verdict if it had been instructed properly. Since the State itself did not even identify the evidentiary basis which we have found for the indecent liberties conviction, but instead was relying upon an act of fellatio which we have determined is not a proper basis for conviction under the corpus delicti rule, we conclude that the jury was also confused by the instructions and contentions.
Certainly the jury found that something bad involving defendant was going on at Karen's home around Christmas 2002, but the jury instructions as given simply do not delineate the issues clearly enough that we can find an absence of plain error, particularly in light of the distinct possibility that the jury considered fellatio as defendant's main criminal sexual act with Karen. We therefore remand for new trial on the issue of indecent liberties by defendant.
IV. Conclusion
Based upon our rulings on the above issues, we need not address any of the other issues raised by defendant, as they will probably not occur at a new trial. Defendant's conviction for first degree sexual offense is reversed, and the case is remanded for new trial on the issue of indecent liberties.
Reversed in part, remanded in part.
Judge McCULLOUGH concurs.
Judge TYSON dissents in a separate opinion.
*90 TYSON, Judge dissenting.
The majority's opinion erroneously: (1) reverses defendant's first-degree sexual offense conviction and (2) grants defendant a new trial on the issue of indecent liberties. I disagree and find no error in defendant's convictions. I respectfully dissent.
I. First-Degree Sexual Offense
Defendant argues and the majority's opinion agrees that the trial court erred by denying defendant's motions to dismiss the first-degree sexual offense charge at the close of the State's evidence and again at the close of all the evidence. Defendant asserts the State failed to meet its burden under the corpus delicti rule, which requires the introduction of independent substantial evidence tending to establish the trustworthiness of defendant's extrajudicial confession. State v. Parker, 315 N.C. 222, 229, 337 S.E.2d 487, 491 (1985). I disagree.
A. Standard of Review
The standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.
State v. Wood, 174 N.C.App. 790, 795, 622 S.E.2d 120, 123 (2005) (internal citations and quotations omitted).
B. Analysis
A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim[.]
N.C. Gen.Stat. § 14-27.4(a)(1) (2001).
A "sexual act" is defined as:
cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body: provided, that it shall be an affirmative defense that the penetration was for accepted medical purposes.
N.C. Gen.Stat. § 14-27.1(4) (2001). The majority's opinion holds the State failed to present any corroborating evidence beyond defendant's confession that established the victim ("K.L.C.") performed fellatio on defendant.
In support of its holding, the majority's opinion states, "[w]hen the State relies on a defendant's extrajudicial statement to establish guilt, the extrajudicial statement alone is not sufficient to sustain a conviction." See Parker, 315 N.C. at 229, 337 S.E.2d at 491 ("Our research reveals that the rule is quite universal that an extrajudicial confession, standing alone, is not sufficient to sustain a conviction of a crime.").
The historical justifications for the corpus delicti rule include:
first, the shock which resulted from those rare but widely reported cases in which the "victim" returned alive after his supposed murderer had been convicted . . .; and secondly, the general distrust of extrajudicial confessions stemming from the possibilities that a confession may have been erroneously reported or construed . . ., involuntarily made . . ., mistaken as to law or fact, or falsely volunteered by an insane or mentally disturbed individual . . . and, thirdly, the realization that sound law enforcement requires police investigations which extend beyond the words of the accused.
Id. at 233, 337 S.E.2d at 493 (citation omitted).
In Parker, our Supreme Court enunciated a more flexible version of the corpus delicti rule applicable in North Carolina:
*91 We adopt a rule in non-capital cases that when the State relies upon the defendant's confession to obtain a conviction, it is no longer necessary that there be independent proof tending to establish the corpus delicti of the crime charged if the accused's confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime.
We wish to emphasize, however, that when independent proof of loss or injury is lacking, there must be strong corroboration of essential facts and circumstances embraced in the defendant's confession. Corroboration of insignificant facts or those unrelated to the commission of the crime will not suffice. We emphasize this point because although we have relaxed our corroboration rule somewhat, we remain advertent to the reason for its existence, that is, to protect against convictions for crimes that have not in fact occurred.
Id. at 236, 337 S.E.2d at 495 (emphasis supplied).
Here, in response to K.L.C.'s rape allegation, defendant gave a voluntary statement to Cleveland County Sheriff's Detective Debbie Arrowood ("Detective Arrowood"). Defendant stated that on the night of 27 December 2002 defendant drove himself, K.L.C., and his child to his residence in order to obtain diapers and formula. Defendant stated he told K.L.C. to stay inside the vehicle with the child, but K.L.C. did not comply with his request and brought the child inside the residence. Defendant stated that he was only inside the residence for approximately ten minutes and vehemently denied having any sexual contact with K.L.C.
Approximately two hours later, Detective Arrowood interviewed defendant a second time. Defendant stated that a few days prior to 27 December 2002 he had consumed alcohol at K.L.C.'s brother's ("J.J.") residence and laid down in J.J.'s bed. K.L.C. came into the room, removed her pants, and laid down beside defendant. Defendant stated K.L.C. wanted him to perform oral sex on her, but defendant refused. K.L.C. unzipped defendant's pants and attempted to perform fellatio on him. Defendant was unable to obtain an erection due to his consumption of alcohol so K.L.C. stopped. Defendant specifically stated to Detective Arrowood, "Yes, it was a stupid mistake and it has ruined my life."
The majority's opinion argues the State failed to introduce sufficient corroborating evidence to establish the trustworthiness of defendant's extrajudicial and voluntary confession. I disagree.
At trial, J.J., the victim's brother, testified that he accompanied defendant to the police station because he did not believe "[his] friend would have done something like that[.]" J.J. specifically testified to the events that occurred after defendant had finished his interview and provided his confession to Detective Arrowood:
[ADA]: What happened on that day that changed your mind? Did he talk to you about what happened?
[J.J.]: He just admitted that he had let [K.L.C.] give him oral sex.
[ADA]: That's what he said to you?
[J.J.]: Yes, ma'am.
[ADA]: What else did he say?
[J.J.]: That was it. We didn't speak much more after that. I just went back to [his] house and got my stuff and went home.
[ADA]: I mean, how did that conversation take place? Did he was he upset?
[J.J.]: He was upset when he come [sic] out of Ms. Arrowood's office.
[ADA]: And did you ask him a question? Did he say something to you?
[J.J.]: I asked him what happened, you know, and he told me that he had, you know, failed, and he admitted to having oral sex with [K.L.C.].
[ADA]: Did he say anything like he was sorry or he shouldn't have done that?
[J.J.]: He said he was sorry, that it wasn't right, but it still don't [sic] change the fact.
(Emphasis supplied).
The majority's opinion states, "[J.J.'s] testimony as to what defendant told him after defendant left the office of Detective Arrowood was not "independent of defendant's confession," . . . therefore it has no more *92 probative value than the more detailed statement which defendant gave to Detective Arrowood and does nothing to corroborate defendant's statement[.]" I disagree.
Defendant was under no duty or obligation to tell J.J. what had transpired during his interview with Detective Arrowood. The fact that defendant: (1) admitted he allowed K.L.C. to perform fellatio on him; (2) had a somber demeanor after the interview; and (3) apologized to J.J. for his behavior, tends to establish the trustworthiness of and corroborate defendant's extrajudicial confession.
Further, although defendant changed his version of the events that had occurred at trial, he testified to the same time, place, and circumstances surrounding the incident. Defendant testified that on the night of 26 December 2002 at approximately 8:00 p.m., he arrived at J.J.'s residence in order to "continue drinking." By the end of the evening defendant had allegedly consumed twenty-four beers and was unable to walk by himself. At approximately 10:00 p.m., J.J. helped defendant up the stairs and defendant "passed out" in J.J.'s bed. Defendant testified:
[Defendant]: Yes, I was awakened. I was awakened a couple of hours after I had passed out.
[Defense Attorney]: Tell the jury, if you will, what awakened you.
[Defendant]: When I came to, I felt something on me. I didn't know what it was, who it was. I panicked. I was frightened, shocked, and all in one motion, I rose up and kicked. And when I kicked, I looked in [sic] the floor and it was [K.L.C.] sitting in [sic] the floor. I jumped up and I asked her what the h-ll she was doing. I zipped my pants up. I remember rubbing my eyes, rubbing my head, trying to collect myself and still, still drunk, not collected, hung over, and she was begging me not to say anything to her mother: "Please don't tell mama; please don't tell Cassie; please don't tell [J.J.].". . . .
. . . .
It was a feeling that it's not like being tapped on the shoulder. It's a feeling not being tapped on your forehead, being shook. It's a private position a private place that's a sensitive area, and I felt something on my penis.
By defendant's own testimony, it is undisputed that: (1) defendant was lying in J.J.'s bed on the night in question; (2) K.L.C. came into the bedroom and unzipped defendant's pants; and (3) defendant "felt something on [his] penis."
Although defendant's testimony does not exactly mirror his earlier confession, these variances do not warrant a reversal of his first-degree sexual offense conviction and the issue was for the jury to decide. Our Supreme Court has adopted a flexible corpus delicti rule: "we need not adhere to our strict rule requiring independent proof of the corpus delicti in order to guard against the possibility that a defendant will be convicted of a crime that has not been committed." Id. at 235, 337 S.E.2d at 494 (emphasis supplied). All that is required is "substantial independent evidence tending to establish [the] trustworthiness [of defendant's extrajudicial confession], including facts that tend to show the defendant had the opportunity to commit the crime." Id. at 236, 337 S.E.2d at 495.
Based upon J.J.'s and defendant's own testimony at trial, the State presented sufficient evidence to meet its burden under the corpus delicti rule. This is not a case where a defendant's confession was "erroneously reported," "involuntarily made," or "falsely volunteered by an insane or mentally disturbed individual." Id. at 233, 337 S.E.2d at 493.
This case involves a young adult male who made a bad decision to involve himself sexually with a minor female. An alleged rape victim's decision not to testify about a prior incident in which she voluntarily performed a sexual act on her alleged attacker does not establish a lack of trustworthiness of defendant's confession. Viewing the evidence in the light most favorable to the State, the trial court properly denied defendant's motions to dismiss. Defendant's first-degree sexual offense conviction should be sustained.
II. Indecent Liberties
Defendant argues the trial court erred by denying his motions to dismiss the indecent liberties charge. I disagree.
*93 The majority's opinion holds that the evidence presented at trial supports defendant's conviction for indecent liberties based upon: (1) defendant undressing K.L.C. and (2) exposing his penis to her at his residence. However, the majority's opinion awards defendant a new trial on the issues of indecent liberties and states:
Since the State itself did not even identify the evidentiary basis which we have found for the indecent liberties conviction, but instead was relying upon an act of fellatio which we have determined is not a proper basis for conviction under the corpus delicti rule, we conclude that the jury was also confused by the instructions and contentions.
Because the "act of fellatio" was a proper basis for defendant's first-degree sexual offense conviction, it is also a proper basis for defendant's indecent liberties conviction. See State v. Lawrence, 360 N.C. 368, 375, 627 S.E.2d 609, 613 (2006) ("[A] defendant may be unanimously convicted of indecent liberties even if: (1) the jurors considered a higher number of incidents of immoral or indecent behavior than the number of counts charged, and (2) the indictments lacked specific details to identify the specific incidents."). The trial court properly denied defendant's motions to dismiss.
III. Conclusion
Based upon J.J.'s and defendant's own testimony at trial, the State presented substantial independent evidence tending to establish the trustworthiness of defendant's extrajudicial confession to meet its burden under the corpus delicti rule. Parker, 315 N.C. at 229, 337 S.E.2d at 491. The trial court properly denied defendant's motions to dismiss his first-degree sexual offense and indecent liberties charges. I find no error in defendant's convictions and respectfully dissent.
NOTES
[1] In order to protect the identity of minors, we will refer to them by pseudonym.
[2] Karen asserted that the visits were on December 25 and 26; defendant asserted that the visits were on December 26 and 27.
[3] Vaginal intercourse is expressly excluded from the definition of "sexual act" for purposes of defining the elements of first degree sexual offense. N.C. Gen.Stat. § 14-27.1(4) (2001). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/571660/ | 948 F.2d 1279
U.S.v.Williams
NO. 91-1238
United States Court of Appeals,Second Circuit.
OCT 09, 1991
1
Appeal From: E.D.N.Y.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2567846/ | 148 F. Supp. 2d 764 (2000)
COMMUNITY VISUAL COMMUNICATIONS, INC., Plaintiff,
v.
CITY OF SAN ANTONIO, Defendant.
No. CIV.A.SA-96-CA1067FB.
United States District Court, W.D. Texas, San Antonio Division.
October 2, 2000.
*765 Becki Fahle, San Antonio, TX, for plaintiff.
Michael Patrick Hodge, Office of Atty. General, San Antonio, TX, for defendant.
AMENDED ORDER CONCERNING PENDING MOTIONS FOR SUMMARY JUDGMENT
BIERY, District Judge.
Before the Court are Defendant City of San Antonio's Motion for Summary Judgment and Plaintiff Community Visual Communications, Inc.'s Motion for Summary. The Court has considered both motions and the various responses thereto. For the following reasons, the Court finds the defendant's motion has merit and should be granted.
Motion for Summary Judgment Standard
A motion for summary judgment should be granted when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law". FED. R. CIV. P. 56(c). A dispute concerning a material fact is considered "genuine" if the evidence "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). It is not the Court's function to "weigh the evidence and determine the truth of the *766 matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S. Ct. 2505. The Court must determine if there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. Of course, in ruling on a motion for summary judgment, all inferences drawn from the factual record is viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
If the party moving for summary judgment carries its burden of producing evidence which tends to show there is "no genuine issue of material fact, the nonmoving must then direct the court's attention to evidence in the record sufficient to establish the existence of a genuine issue of material fact for trial." Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). The nonmoving party may not rely upon mere conclusory allegations to defeat a motion because allegations of that type are not competent summary judgment evidence and are insufficient to defeat a proper motion. Id. In fact, if the "nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation," a motion for summary judgment may be granted even in cases "where elusive concepts such as motive or intent are at issue." Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S. Ct. 195, 130 L. Ed. 2d 127 (1994).
The party opposing the motion also may not rest on the allegations contained in the pleadings but "must set forth and support by summary judgment evidence specific facts showing the existence of a genuine issue for trial." Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). In meeting this requirement, the party must "identify specific evidence in the record" and "articulate the precise manner in which that evidence supports his or her claim." Id. Rule 56 of the Federal Rules of Civil Procedure does not impose upon this Court the "duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Id. (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909. 915-16 & n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S. Ct. 98, 121 L. Ed. 2d 59 (1992)). A summary judgment will only be precluded by disputed facts which are material, i.e. "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986). Factual disputes which are irrelevant or unnecessary to the issue will not be preclude summary judgment. Id.
Because this case is before the Court on cross motions for summary judgment, each party's motion for summary judgment must be considered separately with each movant bearing the burden of presenting evidence to support its motion. Dresser Indus., Inc. v. United States, 73 F. Supp. 2d 682, 686 (N.D.Tex.1999); Dutmer v. City of San Antonio, 937 F. Supp. 587, 589-90 (W.D.Tex.1996).
Defendant contends in its motion that it is entitled to summary judgment because (1) plaintiff's claim is moot because the business is no longer operating as a sexually oriented business (SOB); (2) the defendant has properly exercised its police power; (3) the ordinance, as amended, does not vest unbridled discretion in the licensor; (4) the SOB ordinances are narrowly tailored to serve a substantial governmental interest; (5) the SOB ordinances provide for adequate alternative avenues of adult expression; (6) ordinance # 87443 does not arbitrarily grandfather "Type A" nonconforming uses; and (7) the distance requirement of 1,000 feet included *767 in the SOB ordinances is not arbitrary. Plaintiff contends in its motion for summary judgment that: (1) it has standing to bring this suit and its complaints about the ordinance are not moot even though it has reconfigured its business; (2) the ordinance is unconstitutional under the United States Constitution because it vests unbridled discretion in the licensor; it is not a legitimate time, place, and manner restriction because it does not materially advance the substantial governmental interest, and it does not provide adequate alternative avenues of communication; (3) the ordinance is unconstitutional under the Texas Constitution because the standard used is the least restrictive means test and the defendant has not offered any evidence that the distance restrictions are the least restrictive means necessary to advance its stated interests; (4) plaintiff's retail business is not an SOB under ordinance #87443, and therefore, the ordinance is being applied to it arbitrarily; and (5) the distance requirement of 1000 feet is arbitrary and capricious. The Court need not address the plaintiff's previous challenges concerning police power and arbitrary grandfathering because plaintiff withdrew its complaint on those issues in its response to the City's Motion for Summary Judgment.
Factual Background and Procedural History of the Case
On April 27, 1995, the San Antonio City Council passed and approved Ordinance # 82135 to regulate the locations available to operate sexually oriented businesses. Ordinance # 82135 became effective on June 1, 1995, and Ordinance # 87433, which amended # 82135, was passed on February 26, 1998, and became effective March 10, 1998. These ordinances were passed out of concern about the harmful secondary effects of sexually oriented businesses on the surrounding community. The ordinances prohibit SOBs from being located within 1,000 feet of residential areas, places of worship, schools, and public parks. The ordinances also prohibit SOBs from locating within 1,000 feet of another SOB, and prohibit SOBs from the Central Business District.
On June 22, 1995, plaintiff received notice from the Department of Buildings Inspections of its obligations under SOB Ordinance # 82135 to obtain a new certificate of occupancy. On September 18, 1995, plaintiff applied for a certificate of occupancy and a "Type B" Nonconforming Use Rights. On September 19, 1995, plaintiff's business was inspected by the defendant City's building officials, as required by the City's Building Code, in order to receive a certificate of occupancy. Plaintiff's business failed to pass the mechanical, electrical, and fire inspections.
Plaintiff did not contact the defendant's building officials for reinspection to receive her certificate of occupancy and as a result, the Director of the Department of Building Inspections notified plaintiff on June 7, 1996, that the "permit application for a certificate of occupancy had not been completed and expired on March 18, 1999." Plaintiff was reminded at that time that the mechanical, electrical, and fire inspections were still pending, and was warned that since it was in violation of the SOB ordinance, enforcement measures would be taken to "ensure compliance with all codes." Plaintiff was instructed to contact the Department of Building Inspections within 5 days after receipt of notice to inform the Department of its intentions regarding the operation of its business. The business was closed down on September 25, 1996; plaintiff never contacted the Department of Building Inspections as instructed.
*768 As a result of the business close down, plaintiff filed suit in this Court on October 4, 1996, challenging the constitutionality of the defendant City's SOB Ordinance # 82135. On December 13, 1996, this Court granted plaintiff's request for a temporary injunction declaring that the ordinance was deficient in providing a time limit within which the City was required to act on a request for a certificate of occupancy. In response to this ruling, the City amended its SOB Ordinance by passing Ordinance # 87443. Also during this time, plaintiff obtained a certificate of occupancy as a newsstand and currently does not operate as an SOB.
As defendant points out in its motion for summary judgment, the only significant differences between Ordinance # 82135 and Ordinance # 87443 are (1) the addition of a time limit to act on an application for an SOB certificate of occupancy, and (2) a change in the percentage of floor space dedicated to adult material in the SOB definition. Ordinance # 87443 requires the building inspector to issue or deny a certificate of occupancy within 30 days of application. Defendant contends this corrects the deficiency previously found by this Court. Plaintiff believes a deficiency still exists.
Is Plaintiff's Claim Moot Because the Business Is No Longer Operating as an SOB?
In its motion for summary judgment, defendant argues that because plaintiff has obtained a certificate of occupancy as a newsstand and not as an SOB, the case is now moot because no actual controversy exists between the parties. In plaintiff's response to the motion and in its own motion for summary judgment, plaintiff contends the controversy is not moot because although plaintiff admits it is not an SOB as currently constituted, if Ordinance # 87443 is declared unconstitutional or limited, plaintiff will once again carry more adult materials without having to comply with the "onerous adult business restrictions" currently in place. Thus, plaintiff argues it not only has standing to litigate but also its claims are not moot.
In reviewing the issues presented in this case, the Court agrees that not only does the plaintiff have standing to litigate the issues presented, plaintiff's claims are not moot just because plaintiff has decided not to continue to operate as an SOB until the controversy is resolved. See Cooper v. McBeath, 11 F.3d 547, 550, 551 (5th Cir.)(neither of traditional bases for mootness existed: the presented issue concerning the constitutional issue was still quite live and the parties still possessed a "legally cognizable interest in the outcome"), cert. denied, 512 U.S. 1205, 114 S. Ct. 2675, 129 L. Ed. 2d 810 (1994); Trimble v. City of New Iberia, 73 F. Supp. 2d 659, 664 (W.D.La.1999)(party invoking federal court authority must show actual or threatened injury; injury fairly traced to the conduct, and favorable decision likely to redress injury-plaintiffs discontinued practice as psychic readers and healers in accordance with ordinance out of fear of prosecution-judgment declaring ordinance unconstitutional would redress plaintiffs' injuries as they would be able to practice skills without fear of prosecution). Defendant's motion requesting dismissal based on mootness is DENIED.
Does Ordinance # 87443 Vest Unbridled Discretion in the Licensor?
Plaintiff originally challenged Ordinance # 82135 as being unconstitutional on its face because it gave unbridled discretion to the licensor. Plaintiff argued that the Ordinance required every business falling under the definitions of the Ordinance to apply for a new Certificate of Occupancy *769 within 90 days after receipt of the notice to apply but provided no time certain by which the licensor must either grant or deny the application for the license.[1] Therefore, plaintiff claimed the ordinance was invalid on its face as an unconstitutional prior restraint. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 226-30, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990).
In issuing the preliminary injunction, this Court found it was undisputed the Ordinance at issue failed to include a time limit in which a new Certificate of Occupancy would be either granted or denied. Although the application for the Certificate had to be made within ninety days after the Sexually Oriented Business received notice to apply for the new Certificate of Occupancy and the application had to be made in order to continue the business at the existing location, the Ordinance failed to provide a time frame in which the application would either be granted or denied.
Unbridled discretion is found to exist "when a licensing scheme does not impose adequate standards to guide the licensor's discretion" and "when a licensing scheme lacks adequate procedural safeguards to ensure a sufficiently prompt decision." Chesapeake B & M, Inc. v. Harford County, 58 F.3d 1005, 1009-10 (4th Cir.1995); see FW/PBS, 493 U.S. at 225-26, 110 S. Ct. 596. An ordinance which "makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official as by requiring a permit or license which may be granted or withheld in the discretion of such official is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms." FW/PBS 493 U.S. at 226, 110 S. Ct. 596 (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969)). Likewise, the failure to place time limits within which a license or certificate of occupancy is issued creates "the possibility that constitutionally protected speech will be suppressed." Id. Thus, because the Ordinance on its face failed to impose any time limit on the decisionmaker concerning the new Certificate of Occupancy required for a sexually oriented businesses to continue its operation, the Ordinance was found to be unconstitutional. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990).
Based on this Court's order, the defendant sought to remedy the unconstitutional infirmity by enacting the ordinance now in issue, Ordinance # 87443. However, plaintiff contends that defendant only partially remedied the infirmity because it only addressed the first kind of unbridled discretion and not the second kind which plaintiff argues still exists. Plaintiff contends the second kind of unbridled discretion exists when a licensor has a deadline but the necessary inspectors do not. Plaintiff argues in its motion for summary judgment that where a business is required to apply for a license and a condition to receiving that license is inspection by various departments such as fire marshal, building codes, et al., and those subordinate inspections upon which the license is contingent do not have deadlines of their own, unbridled discretion is still vested in the licensor, and the ordinance is still an unconstitutional content-based restriction.[2]
*770 In its own motion for summary judgment and in several responses, defendant asserts Ordinance # 87443 does include a time limit for when certificates of occupancy applications are to be granted or denied. The Ordinance provides that the Director of Building Inspections shall either issue or deny a certificate of occupancy to a sexually oriented business not more than 30 business days subsequent to the date of the applicant's submission of an application therefor. Regardless of whether the application is granted or denied, the applicant is notified of the action by certified mail, return receipt requested. Further, the ordinance provides that a certificate of occupancy will not be withheld if the sexually oriented business is determined to be in compliance with all applicable sections of the Code and an appeal process is provided for any denial of a certificate. Defendant also claims the Ordinance does not involve the issuance of a license as was the case in FW/PBS, Inc. v. Dallas, upon which plaintiff relies. Instead, the Ordinance operates as a land use/zoning type regulation.
The section of the Ordinance which is still subject to controversy reads as follows:
The Director of Building Inspections shall either issue or deny a certificate of occupancy to a sexually oriented business not more than thirty (30) business days subsequent to the date of the applicant's submission of an application therefor. If granted, the applicant shall be notified of such action by certified mail, return receipt requested. If denied, the applicant shall be notified of such action and the reason(s) therefore by certified mail, return receipt requested.
The issuance of a certificate of occupancy shall not be withheld if the sexually oriented business is determined to be in compliance with all applicable sections of this Code.
Plaintiff argues Ordinance # 87443 is still a content-based restriction because it requires the applicant to get inspections without providing any deadlines for those inspections. Plaintiff again relies on the decision in FW/PBS to support its argument.
In FW/PBS, the ordinance provided that the "chief of police shall approve the issuance of a license by the assessor and collector of taxes to an applicant within 30 days after receipt of an application." FW/ PBS, Inc. v. Dallas, 493 U.S. 215, 110 S. Ct. 596, 605, 107 L. Ed. 2d 603 (1990). The ordinance also provided that the "license may not issue if the `premises to be used for the sexually oriented business have not been approved by the health department, fire department, and the building official as being in compliance with applicable laws and ordinances.'" Id. The Court explained that the ordinance provided "no means by which an applicant may ensure that the business is inspected within the 30-day time period within which the license is purportedly to be issued if approved." Id. Although the city argued that applicants are given the telephone numbers for the various inspection agencies so they may contact them and arrange for these inspections, that measure was not found to place any limits on the time in which the city would inspect the business and make them eligible for a sexually oriented business license. Id. at 605-06. As *771 a result, the city's regulatory scheme was found to allow an "indefinite postponement of the issuance of a license." Id. at 606.
As set forth above, Ordinance # 87443 does not contain contingency type language similar to that found objectionable in FW/PBS. As plaintiff notes in its motion, where a condition of receiving the license is inspection by various departments such as fire marshal, building codes, et al., and those subordinate inspections upon which the license is contingent do not have a deadline of their own, unbridled discretion is vested in the licensor. However, plaintiff has not pointed out to this Court where such a condition in the Ordinance exists. In fact, it was not until the Court received Defendant's Response to Plaintiff's Motion for Summary Judgment that it understood what inspections were required to be made. According to the response, section 109.3 of the 1994 Uniform Building Code provides that the Director of Building Inspections may not issue a certificate until all necessary inspections have been completed. Defendant argues this has the "obvious effect of requiring the various inspectors to complete their inspections within the thirty-day deadline."
In City News & Novelty, Inc. v. Waukesha, 231 Wis. 2d 93, 604 N.W.2d 870, 880 (Wis.App.1999), the ordinance required that the "building inspector shall inspect the establishment prior to the renewal of a license to determine compliance with the provisions of this ordinance." The court was not persuaded that based on the holding in FW/PBS, the ordinance was unconstitutional. Because the ordinance provided that the inspection must occur prior to the renewal of the license, and the application had to be granted or denied within twenty-one days of receipt, the onus was on the building inspector to complete the inspection before the license was renewed. The court found the language in the ordinance did "not compare to FW/PBS because the ordinance there simply stated that a license will not be issued if the premises `have not been approved by the health department, fire department, and the building official.'" Id. Analogously, Ordinance 87443 requires the Director of Building Inspections, not the city police chief, to either issue or deny a certificate of occupancy not more than 30 business date subsequent to the date of the application. As defendant points out, this too requires the inspectors to complete their inspections within the 30 days period. Moreover, plaintiff has only brought forth a facial challenge to the Ordinance.[3] As written, there is no contingency language requiring inspections and plaintiff has not challenged the constitutionality of the 1994 Uniform Building Code in this case.
Is Ordinance # 87443 Narrowly Tailored to Serve a Substantial Governmental Interest?
In support of its motion for summary judgment that the ordinance fulfills a substantial governmental interest, defendant attaches to its motion a copy of the unpublished *772 opinion of the Fifth Circuit Court of Appeals in NATCO, Inc. v. City of San Antonio, in which Ordinance # 82135 was found to serve a substantial government interest. In the opinion, the Fifth Circuit stated:
Ordinance # 82135 is properly analyzed as a form of time, place and manner regulation. See Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1257 (5th Cir.1992)(noting that an ordinance that limits the areas of a city in which adult businesses may operate is properly analyzed as a time, place and manner regulation). The Ordinance presumptively violates the First Amendment unless it is "designed to serve a substantial governmental interest," and does not "unreasonably limit alternative avenues of communication." City of Renton v. Playtime Theatres, Inc. 475 U.S. 41, 47, 106 S. Ct. 925, 928, 89 L. Ed. 2d 29 (1986). The City bears the burden of justifying the challenged Ordinance. See J & B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, 370 (5th Cir.1998).
The City has justified Ordinance # 81235 as fulfilling a substantial governmental interest if it has shown that the City passed the Ordinance to control bad "secondary effects" associated with sexually oriented businesses. See Lakeland Lounge, 973 F.2d at 1257 ("Local governments can restrict adult businesses in order to control the bad `secondary effects'"). We first note that the preamble to the Ordinance explains with great detail and specificity the secondary effects that the Ordinance was designed to address. Cf. J & B Entertainment 152 F.3d at 374 (stating that "the mere incantation of the words `secondary effects' may not save a statute `formulated without specific attention to specific secondary effects'"). Moreover, the record evidence show that the City relied on studies provided by the City Council relating to secondary effects, and that it obtained legal advice before passing the Ordinance. Accordingly, we find that the City has justified Ordinance # 82135 has fulfilling a substantial government interest.
NATCO, Inc. v. City of San Antonio, No. 98-50645 at page 5-6 (June 2, 1999). Defendant presents this decision in support of its motion because Ordinance # 87443 contains the same language as Ordinance # 82135 at issue in NATCO.[4] As additional support for its motion, the defendant also provides a copy of an interdepartmental correspondence sheet dated February 20, 1998, which indicates that the amending of Ordinance # 82135 was initiated in order to address a ruling in this case, Community Visual Communications, Inc. v. City of San Antonio. As a result of the ruling, the major changes to the Ordinance # 82135 were described in this interdepartmental memo as: (1) excepting airports from being included as residential zoning districts; (2) re-defining an adult bookstore; and (3) requiring the Department of Building Inspections to either approve or deny a Certificate of Occupancy Request within 30 business days. The City Attorney concluded the memo by *773 recognizing that the First Amendment protects these businesses from unreasonable government interference and the proposed changes do nothing to infringe on those rights. A second memo dated February 24, 1998, reflects that the mayor and members of the city council were provided for review, prior to the public hearing in regard to the amendments, copies of the City of Garden Grove study, the City of Seattle study, and the City of Austin study. Copies of these studies were also attached for this Court's review.
Although plaintiff agrees this Court may consider NATCO as persuasive authority, plaintiff contends there is abundant binding contrary precedent.[5] Plaintiff contends the City is required to produce at least some evidence tending to support its contention that the Ordinance is narrowly tailored to serve a substantial governmental interest. Plaintiff argues the self-serving, conclusory assertions contained in the preamble are insufficient and defendant cannot simply rely on the unpublished opinion without precedential value which found the prior Ordinance # 82135 constitutional when that finding was not necessary to the holding in the case. Despite this assertion, plaintiff notes in a footnote that the City Council was not required to prove that it relied on the studies again when it passed the successor Ordinance # 87443 if the City showed that the City Council or its legislative drafters actually relied upon the recited studies in the passage of Ordinance # 82135.
Before addressing the ordinance at issue herein, the Court would like to point out a recent decision from another circuit in which the court held the circuit rule declaring unpublished opinions are not precedent as unconstitutional under Article III "because it purports to confer on the federal *774 courts a power that goes beyond the `judicial'". Anastasoff v. United States, 223 F.3d 898, 899 (8th Cir.2000). Rule 28A(i) in that circuit provided:
Unpublished opinions are not precedent and parties generally should not cite them. When relevant to establishing the doctrines of res judicata, collateral estoppel, or the law of the case, however, the parties may cite any unpublished opinion. Parties may also cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well....
Id. at 899. Similarly, the rule in this circuit provides:
Unpublished opinions issued on or after January 1, 1996, are not precedent, except under the doctrine of res judicata, collateral estoppel or law of the case (or similarly to show double jeopardy, abuse of the writ, notice, sanctionable conduct, entitlement to attorney's fees, or the like). An unpublished opinion may, however, be persuasive. An unpublished opinion may be cited, but if cited in any document being submitted to the court, a copy of the unpublished opinion must be attached to each document....
5th CIR. R. 47.5.4. Given the similarities in the rules, this Court notes the beginning of a possible trend and finds the discussion of the issue worth consideration by this circuit given the previous ruling in NATCO on the same issues by the Fifth Circuit. The court in Anastasoff began its discussion as follows:
Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law. This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties. These principles, which form the doctrine of precedent, were well established and well regarded at the time this nation was founded. The Framers of the Constitution considered these principles to derive from the nature of judicial power, and intended that they would limit the judicial power delegated to the courts by Article III of the Constitution.
Id. at 899-900. The court further explained that it in no way meant to suggest that the Framers "expected or intended the publication (in the sense of being printed in a book) of opinions." Id. at 903. In fact, the judges and lawyers of that day "recognized the authority of unpublished decisions even when they were established only by memory or by a lawyer's unpublished memorandum." Id. The court went on to acknowledge that the case was not about whether opinions should be published but rather about their authoritative effect. Id. at 904-05. The fact a decision is unpublished does not equate to it being "secret." To that court's knowledge, "every opinion and every order of any court in this country, at least of any appellate court, is available to the public. You may have to walk into a clerk's office and pay a per-page fee, but you can get the opinion if you want it. Indeed, most appellate courts now make their opinions, whether labeled `published' or not, available to anyone on line." Id.
The court also addressed the practicalities of the matter as follows:
It is often said among judges that the volume of appeals is so high that it is simply unrealistic to ascribe precedential value to every decision. We do not have time to do a decent enough job, the argument runs, when put in plain language, to justify treating every opinion as a precedent. If this is true, the judicial system is indeed in serious trouble, but the remedy is not to create an underground body of law good for one *775 place and time only. The remedy, instead is to create enough judgeships to handle the volume, or, if that is not practical, for each judge to take enough time to do a competent job with each case. If this means that backlogs will grow, the price must still be paid. At bottom, rules like our Rule 28A(i) assert that courts have the following power: to choose for themselves, from among all the cases they decide, those that they will follow in the future, and those that they need not. Indeed, some forms of the non-publication rule even forbid citation. Those courts are saying to the bar: "We may have decided this question the opposite way yesterday, but this does not bind us today, and, what's more, you cannot even tell us what we did yesterday." As we have tried to explain in this opinion, such a statement exceeds the judicial power, which is based on reason, not fiat.
Id. The court also acknowledged that it was not advocating a rigid doctrine of eternal adherence to precedent but only that precedent be changed if the reasoning of the case is exposed as faulty or other exigent circumstances exist which require such change. Any such departure from precedent should be clearly stated and the reasoning for the departure clearly explained. Id.
The court concluded that the discretion to depart from the law set out in a prior decision without any reason to differentiate the case and even though the earlier decision may be well-considered and directly on point is "inconsistent with the doctrine of precedent; even in constitutional cases, courts `have always required a departure from precedent to be supported by some "special justification"'". Thus, the rule which allows courts the complete discretion to determine which judicial decisions will bind it and which will not is unconstitutional. Id. at 905.
Likewise, this Court respectfully requests that reconsideration of the rule be made in this circuit because this Court would have been aided had the NATCO decision been binding precedent. Having so said, the Court will return to the issues at hand.
In deciding whether an ordinance is designed to address undesirable secondary effects and is therefore content-neutral or is intended instead to suppress speech, courts "must give great deference to the stated goals of the City Council." N.W. Enters. Inc. v. City of Houston, 27 F. Supp. 2d 754, 776 (S.D.Tex.1998). "It is the legislature, and not the courts, which determines how much testimony is enough to require city action in redressing a perceived problem." Id. (quoting SDJ v. City of Houston, 636 F. Supp. 1359, 1367 (S.D.Tex.1986)). Although the purpose statements contained in the preamble of an ordinance are relevant, a court should not rely exclusively on a city council's conclusory statements concerning its intent. Id. A court must also consider "whether the City Council relied on evidence in the legislative record from which it could have reasonably determined that negative secondary effects associated with adult businesses actually exist and that the proposed regulations would in some way address these effects." Id. The court required the City of Houston, in that case, to show that in adopting the ordinance the members of its city council had a "reasonable basis for believing that these provisions would address negative secondary effects actually and currently attributable to sexually oriented businesses in Houston. The Court cannot merely surmise this fact from vague references to evidence in other cities or surmise the current validity of the City Council's purported beliefs regarding specific secondary effects from previous evidence *776 used to support earlier versions of the Ordinance." Id. at 778.
In reaching this conclusion, the court referred to the opinion in Lakeland Lounge v. City of Jackson, 973 F.2d 1255 (5th Cir.1992), which was cited by the Fifth Circuit in deciding NATCO. In Lakeland, the record provided sufficient information to show the city council had sufficient information to review in order to enact a permissible ordinance. Id. at 1258. First, the court noted that the office of planning, city attorney's office, and the ordinance review committee were found to have drafted the ordinance and it was without question that the drafters considered and relied on the studies concerning secondary effects of sexually oriented businesses while drafting the amendment. Id. The court found it permissible for the city council to place reliance on others to do research because "state law requires that the planning board make recommendations to the council regarding zoning amendments." Id. The court also found it was not necessary for the evidence to show the council members personally reviewed the studies of secondary effects. Id. Second, although the evidence showed the city council did not receive a written report or summary of the studies, a meeting was held at which five of the seven members of the city council were present and at this meeting, various persons discussed the secondary effects and the work that had gone into the preparation of the proposed ordinance. Id. Third, the court relied on the language contained in the amendment which indicated the concern by the city council of the secondary effects. The court recognized the preamble language might not save a statute formulated "without specific attention to secondary effects." However, in the context of the case where:
(1) the drafters of the ordinance did rely upon studies of secondary effects, (2) a majority of the councilmembers did receive some information about the secondary effects during an open hearing of the planning board, and (3) nothing in the record otherwise suggest impermissible motives on the part of the councilmembers, the language of the preamble show the city council's awareness of the studies upon which the planning staff relied when framing the ordinance and reflects that a reasonable legislature with constitutional motives could have enacted the ordinance.
Lakeland, 973 F.2d at 1259; see J & B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, 372, 374 (5th Cir.1998)(stating Lakeland "is consonant with our case law upholding ordinance regulating adult entertainment where the government has introduced sufficient evidence to justify the ordinance on the basis of preenactment legislative findings and reaffirming a preambulatory clause may be used as evidence in support of an ordinance if properly explained").
Here, the record indicates that copies of the studies were provided to the mayor and city council members for review along with interdepartmental memos concerning the amendment from the City's attorney prior to its passage. The lengthy and detailed preamble contained in Ordinance # 82135 as well as in # 87443 provides evidence that the City Council members had a reasonable basis for believing the ordinance would address negative secondary effects actually and currently attributable to sexually oriented business in San Antonio.[6] Moreover, this Court is also *777 persuaded by the decision in NATCO which found the City's evidence sufficient to support a finding that the predecessor ordinance to # 87443, ordinance # 82135 originally at issue in this case, fulfilled a substantial governmental interest.[7]
Despite the foregoing, plaintiff also argues in its response to defendant's motion for summary judgment that in addition to proof that the City relied on studies or other extrinsic evidence the City must show actual justification for the increase in distance restrictions from Ordinance # 49724 in which the distance restriction was 500 feet. In support of this assertion, plaintiff relies on N.W. Enters., Inc. v. City of Houston, 27 F. Supp. 2d 754 (S.D.Tex.1998).
In N.W. Enters., the plaintiffs challenged the increase of the minimum distance between adult businesses and protected land uses from 750 to 1,500 feet and the increase from 1,000 to 1,500 the radius for calculating residential areas. Id. at 800. Plaintiffs' primary argument was the City enacted the increases `without considering any new studies or evidence which establishes that the 750 and 1,000 foot distances required by the previous version of the Ordinance were insufficient to satisfy the legislative interests that the district court and the Fifth Circuit acknowledged existed in SDJ.' Id. Plaintiffs also argued that the adverse secondary effects the City claimed the increase distance requirements would address did not actually exist or at a minimum, fact issues existed as "whether these alleged effects exist and whether the new requirements will actually alleviate such effects." Id. at 801. In response, the court explained:
It is not this Court's role to weigh competing evidence on these factual issues or even to determine whether the evidence upon which the City claims to have relied was highly probative or reliable. *778 This Court is not permitted to examine Plaintiffs' substantive policy arguments regarding the accuracy of the committee's purported findings or the impact, or lack of impact, sexually oriented businesses in Houston actually have on surrounding areas. In SDJ, the district court likewise declined to consider the plaintiffs' policy arguments against the 1986 version of the Ordinance and rejected the plaintiffs' proffered evidence by explaining that "[t]he fact that other experts hold conflicting opinions on the effects of sexually oriented businesses on property values is irrelevant to the Court's first amendment inquiry."
This Court's duty instead is merely to determine whether the City Council had before it at least a requisite, albeit relatively minimal, amount of evidence to support each of the challenged amendments to the Ordinance....[T]he relevant issue to the question of whether each challenged amendment is content-neutral is whether the City Council's Sexually Oriented Business Committee had before it even a minimal threshold amount of evidence upon which a reasonable Council member could have relied in determining whether the purported negative secondary effects actually exist and whether the amendment to the Ordinance would somehow help alleviate those effects.
Id. at 801. After reviewing the record, the court concluded that the increase in distance requirements was not based "on any evidence of secondary effects that specifically justify these increases." Id. Both the preamble to the ordinance and the transcripts of city council meetings revealed that "Committee members believed that they could impose whatever locational restrictions they wanted on adult businesses so long as the restrictions left those businesses with an adequate number of alternative sites to which they could legally relocate." Id. In defense of the ordinance, the City tried to rely on evidence documents in the legislative history for previous versions of the ordinance. Although the court recognized this was the type of evidence that might have been relevant to the case if it had in fact been considered, there was no indication that anyone, i.e. council members or their staffs or the city's legal department, "actually contemplated how this eleven to fourteen year-old factual matter could support the increased distance requirements the City enacted." Id. at 803. The court mentioned in a footnote that it "searched the legislative record in vain for evidence that someone, such as Council members, staff, or legal advisers looked at specific evidence from Houston's earlier legislative histories, or even studies from other cities in the process of formulating the new distance requirements." Id. at 803 n. 102.
Based on the copy of the previous Ordinance # 49724 provided by the plaintiff, the Court finds that ordinance was enacted in 1978. Defendant has produced evidence that the city council members were provided with copies of at least three recent land use studies of secondary effects of sexually oriented businesses conducted in 1991, 1989, and in 1986. The 1986 study studied the effects of sexually oriented businesses at 1,000 feet. Council members indicated in the preamble their concern about the atmosphere of public places caused by allowing sexually oriented businesses to be legally located next door to another such business, allowing them as close as 500 feet from the property line of residential property, allowing them next door to churches, parks, secondary and primary schools and their concern about the adverse impact on property values and family activities given that such close proximity to the aforementioned land uses can reduce *779 the value of residential property, reduce retail trade in the vicinity, reduce family use of nearby public parks, and generally reduce property values and tax revenues to the City.
Therefore, unlike the City of Houston, the City of San Antonio had before it studies showing a link to the increase in distance requirements and evidence to show the council members were provided with these studies. This is sufficient to uphold that requirement. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 236, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990)(1977 study by city of Los Angeles that cursorily considered the effect of adult motels on surrounding neighborhoods combined with reasonableness of legislative judgment adequate to support city's determination about motels permitting room rentals for fewer than 10 hours to be included in licensing scheme); N.W. Enters., Inc. v. City of Houston, 27 F. Supp. 2d 754, 811 (S.D.Tex.1998)(recognizing that Supreme Court rejected in FW/PBS the argument that City had no basis to conclude rental of motel rooms for fewer than 10 hours produced adverse secondary effects because the city council had before it a 1977 study that cursorily considered the effect; this was adequate to support city's determination). Accordingly, this Court finds the ordinance is narrowly tailored to serve a substantial government interest.
Does the Ordinance Provide Adequate Alternative Avenues?
Relying on the holding in NATCO, Inc. v. City of San Antonio, defendant contends in its motion for summary judgment that adequate alternative avenues of communication exist under Ordinance # 87443 because it contains the same language and covers the same area as Ordinance # 82135. With respect to Ordinance # 82135, the Fifth Circuit held, although in an unpublished opinion, that alternative avenues of communication exist:
We also find that the City has met its burden to show that alternative avenues of communication exist. Although NATCO claims that Ordinance # 82135 disburses sexually oriented business to areas in Bexar county where it is impossible to operate, the record evidence show that the City has granted permits to five sexually oriented businesses allowing them to operate indefinitely. NATCO has not offered any evidence that counters this summary judgment evidence.
NATCO v. City of San Antonio, No. 98-50645 (5th Cir. June 2, 1999) at page 6. Defendant points out in its motion that Ordinances # 82135 and # 87443 do not attempt to ban SOBs altogether but regulate SOBs in certain areas of the City. In support of its motion, the affidavit of Jose A. Gomez is attached. Mr. Gomez gained his knowledge while serving as Administrator to the Board of Adjustment. He is presently employed as Development Services Ombudsman for the City of San Antonio Buildings Inspections Department.
According to Mr. Gomez, prior to the adoption of Ordinance # 82135, the City developed a list of existing SOBs located in the City of San Antonio and found a total of 30. Each SOB was then notified of the impending ordinance and were advised of the new regulations. Of the 30 SOBs listed, 4 or 5 were no longer in operation when the ordinance went into effect. Six of the 30 SOBs notified met the 1,000 foot separation requirement in the ordinance. These six were all issued certificates of occupancy without expiration dates. Fifteen of the SOBs operating at the time requested a hearing for a Type A permit. Five of these permits were granted, and the remaining SOBS were granted Type B nonconforming use rights for a period of *780 one year. At the end of one year, these SOBs had either to shut down or apply for amortization.
Mr. Gomez also stated that since the passage of Ordinance # 87443, one SOB had been approved for a Certificate of Occupancy and three more are in the planning/construction stages. The City anticipates that each of these SOBs will apply for a certificate of occupancy when construction is completed. With respect to plaintiff's business, plaintiff closed its location, moved across the street, and has chosen not to operate as an SOB. Instead, plaintiff has obtained a certificate of occupancy to operate as a newsstand.
Plaintiff argues in its motion for summary judgment that there are not an adequate number of sites which are legally and physically available. At a minimum, plaintiff claims the City has the burden of coming forward with at least two legally and physically available sites (one for the plaintiff and one for the plaintiff in the companion case Encore, Inc. v. City of San Antonio). Plaintiff also argues the City's reliance on the affidavit of Mr. Gomez is misplaced. Mr. Gomez fails to specify the existence of alternative avenues at all or fails to show the existence of property he or the City contend meet the requirements of the ordinance.
As set forth in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986), "the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city." Defendant has previously defended this same issue before the Fifth Circuit Court of Appeals and based on the record which apparently showed that the City had granted permits to five sexually oriented businesses, the City was found to meet its burden. The affidavit by Mr. Gomez in this case shows that at the time the Ordinance # 82135 was passed six out of 30 of the SOBS in existence met the distance requirements. Since the passage of the amendment, Ordinance # 87443, one SOB has been approved for a certificate of occupancy and three more are in the planning stages. This implies that there are available sites within the City of San Antonio. Plaintiff has not provided summary judgment evidence to the contrary. Therefore, this Court agrees with the finding by the Fifth Circuit Court of Appeals that the City has met its burden that alternative avenues of communication exist.[8]
Is the Distance Requirement of 1,000 Feet Arbitrary and Capricious?
In discussing whether the Ordinance at issue was narrowly tailored to serve a substantial governmental need, the Court looked at what evidence the City had before it in enacting the new Ordinance and the new distance requirement. As defendant argues in its motion, the increase arose from evaluating several studies which were conducted after its Ordinance setting the distance at 500 feet was enacted. Copies of these studies have been provided to the Court. In addition, the preamble to the ordinance indicates the increase was meant to combat the *781 negative secondary effects of those businesses on the surrounding community. Having previously discussed the evidence, the Court agrees with the defendant that the distance requirement is not arbitrary and capricious.
Does the Texas Constitution Provide Even Greater Protection Than The Federal Constitution on the Question of Prior Restraint?
Plaintiff contends in its motion for summary judgment that the Texas Constitution and related case law provides even greater protection than the federal constitution on the question of prior restraint. In Texas, the proponent of the local restriction has the burden of showing that the location restriction is the least restrictive means of preventing or mitigating secondary effects while still providing access. In response, defendant relies on the decision on Woodall v. City of El Paso, 49 F.3d 1120 (5th Cir.1995), which it claims holds the standard is the same for evaluating the Ordinance under the Texas Constitution.
In Woodall, the plaintiffs maintained that the standard for determining the validity of an El Paso ordinance was different under the Texas Constitution, and they were entitled to pursue a separate claim because of that difference. Id. at 1127. The court first set out the applicable provisions from both constitutions and then explained:
The Texas Supreme Court has held that free speech rights under the Texas Constitution may be broader than those provided by the Federal Constitution in certain cases. The Adult Businesses argue that under Davenport the free speech clause of the Texas Constitution requires the City to show that the Ordinances protect a "compelling government interest" and are the "least restrictive means" possible to protect this interest, whereas under Renton the United States Constitution only requires the City to show that the Ordinances protect a "substantial government interest" and do not "unreasonably limit" alternative avenues of communication.
The district court determined that the greater protections set out in Davenport apply only to prior restraints and not to time, place and manner restrictions in land use restrictions of sexually oriented businesses. The district court noted that Lindsay v. Papageorgiou, 751 S.W.2d 544 (Tex.App.-Houston [1st Dist.] 1988, writ denied), the only Texas case directly on point, held that the Renton standard applies under Texas Constitution as well as under the United States Constitution. The Adult Businesses contend that the Davenport standard was extended to land-use cases in Ex Parte Tucci, 859 S.W.2d 1, and that Lindsay has been impliedly overruled. We are unpersuaded.
In Tucci, a plurality of Justices held that the Davenport standard should have been applied to a temporary restraining order which regulated abortion protest during the 1992 Republication Party Convention in Houston, Texas. The Tucci Court addressed the applicability of Davenport to restrictions on political protest. It did not address whether the more stringent standard was applicable in land-use cases involving adult businesses. The simple fact of the matter is that there is no direct Texas authority supporting the Adult Businesses' position that the Davenport standard should be expanded to land-use cases involving adult businesses, and the only Texas authority directly on point opted for the Renton standard. If the intermediate Texas courts are wrong about Texas law in this area, we are content to wait until the Texas Supreme Court corrects their error. We hold that the Adult Businesses' *782 claims under the Texas Constitution should be determined under the same standard as used under the United States Constitution.
Woodall, 49 F.3d at 1127-28 (citations omitted). Since Woodall, there has been no Texas Supreme Court case addressing the issue. However, another intermediate Texas court refused to be persuaded as was the court in Woodall that the decision in Tucci impliedly overruled Lindsay. The court noted:
It has been argued, although not in this case, that Tucci (decided after Lindsay) impliedly overruled Lindsay. We are not persuaded by that argument. Tucci concerned political speech the most protected form of speech. No mention is made in Tucci regarding sexually oriented expression, nor of the Lindsay decision. In addition, the Fort Worth Court of Appeals has since held that the broader Texas free speech protection found in Tucci does not extend to exotic dancing. The basis for these holdings is that there is less interest in protecting "material on the borderline between pornography and artistic expression than in free dissemination of ideas of social and political significance." We so hold.
Kaczmarek v. State, 986 S.W.2d 287, 291 (Tex.App.-Waco 1999, no pet.). Based on the foregoing, this Court agrees with the defendant that whether the ordinance is reviewed under the Texas Constitution or the United States Constitution, the same standard is to be applied. As such, plaintiff's request for a least restrictive means review is denied and the challenges to the ordinance are upheld as constitutional under Texas law as well.
Is Plaintiff's Business a Sexually Oriented Business Under Ordinance # 87443?
Plaintiff argues that it is not a sexually oriented business under the Ordinance and therefore the Ordinance is being applied to it arbitrarily. Plaintiff appears to argue that because all of its inventory is for off-premises consumption only, it does not fall under the Ordinance. However, the language of the Ordinance reads that an adult bookstore is "an Adult Bookstore, Adult Novelty Store, or Adult Video Store where more than 20% of its inventory (that is offered for sale, rental or viewing for any form of consideration to on-premises customers) consists of..." The Court does not find plaintiffs' argument plausible that the ordinance's requirement of on-premises consumption applies to inventory offered for sale or rental.
Plaintiff also argues that the floor space of its business is not dedicated to inventory which is subject to the Ordinance. In support of its arguments, plaintiff attaches the affidavit of Elizabeth Kocian, the president of Community Visual Communications. Ms. Kocian admits that when the City passed Ordinance # 82135, her business Broadway Video Exchange "as constituted fell under the ordinance." Ms. Kocian stated that ordinance did not provide guidelines to make her store fall outside of its restrictions. However, since Ms. Kocian's affidavit, Ordinance 87443 was enacted which now sets out at what percentage the establishment is considered an adult bookstore, i.e. 20% adult inventory, whereas the previous Ordinance used the term "substantial" without any percentage given and was enforced at 25% of the inventory. Although plaintiff alleges in its motion that less than 20% of the floor space is dedicated to inventory which is the subject of the ordinance, there is no statement in the affidavit or any other evidence submitted by the plaintiff which supports that assertion.
In response to these arguments, defendant contends that plaintiff applied for an *783 SOB certificate of occupancy when it moved locations. Defendant maintains that if plaintiff did not consider itself an SOB, why would it apply for an SOB certificate of occupancy and how can it have standing to file this lawsuit?
The Court has considered plaintiff's arguments and defendants response, and finds no summary judgment evidence to support a finding that the Ordinance now in issue was arbitrarily applied to plaintiff. Moreover, the Court notes that plaintiff applied for and received its certificate of occupancy to operate as a newsstand and is currently operating as a newsstand.
Accordingly, based on the foregoing, IT IS HEREBY ORDERED that Defendant City of San Antonio's Motion for Summary Judgment as to all of plaintiff's claims herein (docket # 57) is GRANTED, Plaintiff Community Visual Communications, Inc.s' Motion for Summary Judgment (docket # 73) is DENIED, and this case is DISMISSED.
It is so ORDERED.
NOTES
[1] The provision of Ordinance 82135 at issue read as follows:
New Certificate of Occupancy Required. The business owner or the owner's agent must, within ninety (90) days after receipt of notice to apply for a new Certificate of Occupancy as one of the above three classes of property use rights as Sexually Oriented Business in order to continue such business at the existing location.
[2] Plaintiff recognizes in its motion that even content-based prior restraints may be legitimate in some circumstances but are held to the strictest scrutiny requiring the government to demonstrate a compelling interest in the restraint in order to withstand constitutional muster. Plaintiff claims there is no apparent compelling interest iterated in the ordinance, and plaintiff believes the defendant cannot enunciate such an interest now.
[3] Part of the summary judgment evidence presented by the defendant is an affidavit by Jose A. "Andy" Gomez who gained knowledge of the events surrounding this case while serving as the Administrator to the Board of Adjustment. He states that on September 19, 1999, he along with the building inspectors and the police department's vice unit found plaintiff's business to be in violation of the City's Building Code. The business failed its mechanical, electrical, and fire inspections. In June of 1996, plaintiff's business was notified that the application for a certificate of occupancy was incomplete and had expired on March 18, 1996. "The owner never contacted the Building Inspection Department and never completed her mechanical, electrical, or fire inspections." It would appear, therefore, that any as applied challenge to the Ordinance would fail as well.
[4] The preamble confirms that Ordinance 87443 amends Ordinance 82135 passed and approved April 27, 1995, and re-enacts said ordinance by regulating the locations available for sexually oriented businesses. The preamble also confirms that the City relied on land use studies of Garden Grove, California, Seattle, Washington, and Austin, Texas, concerning the secondary effects of sexually oriented businesses and their effects at 1,000 feet and other studies from other Texas cities such as Austin, Houston, Dallas, Beaumont, and Amarillo and other states concerning the unhealthy sexual conduct and drug use which tends to be aggravated by sexually oriented businesses.
[5] Plaintiff argues that even if one or more of the NATCO plaintiffs might have made an adequate representative of the rights of the plaintiff herein, the decision of the trial court was not necessary to the decision on the merits. The Fifth Circuit noted there was no evidence that the City of San Antonio was enforcing the licensing provisions of Ordinance # 82135 against NATCO because of the injunction issued in this case. Plaintiff maintains "[i]f there was no case or controversy, then the remainder of the opinion was, in fact, not necessary to the judgment. The court did not even have jurisdiction to enter an opinion once it determined there was no case or controversy. Even if the opinion may be properly used against the Plaintiff in this case as to collaterally estop the relitigation of certain issues, those parts of the opinion not necessary to the judgment may not. Since the parts of the opinion cited by the City of San Antonio were not necessary to the outcome of the first action, they cannot be used to preclusive effect here, especially where the plaintiff was not a party to the Natco action."
In reviewing the unpublished opinion, the Court notes that the Fifth Circuit found that because of the preliminary injunction issued in this case, the City conceded the licensing provisions of Ordinance # 82135 were unconstitutional and as a result, the City has not enforced the licensing provisions against NATCO. The court found that "on this issue there is no case or controversy." The opinion continues by indicating that NATCO was arguing on appeal that the district court erred in finding the location restrictions were content-neutral time, place, and manner restrictions. Because of the presumption that the ordinance violates the First Amendment unless it is designed to serve a substantial governmental interest and does not unreasonably limit alternative avenues of communication, the court was required to discuss whether # 82135 fulfilled a substantial governmental interest. The court concluded the evidence was sufficient to support such a finding.
This Court also reviewed the file in the NATCO, Inc. v. City of San Antonio case concerning the issues raised. The Court found that plaintiff's counsel herein was involved as counsel in that litigation, and in the Plaintiffs' Response to Defendant's Summary Judgment Motion and Incorporated Cross-Motion for Summary Judgment raised the argument that the remainder of the ordinance, excluding the licensing scheme, was not content neutral.
[6] The preamble provides evidence that the council relied on land use studies of secondary effects of sexually oriented businesses and a study of sexually oriented business effects at 1,000 feet; the objectives considered by the council; the council's concern about the atmosphere of public places in the City caused by allowing sexually oriented businesses to be legally located next door to another business; the adverse impact on property values and family activities; that zoning is a legitimate and reasonable restriction to ensure sexually oriented businesses are located to minimize the adverse secondary effects; the possible harmful effects on children and minors exposed to such businesses; council's desire to minimize and control the negative effects and protect the health, safety, and welfare of the citizens; a finding by the council that it is appropriate to amortize those sexually oriented businesses located within 1000 feet of a protected property; that the council considered decisions of the Supreme Court regarding the regulation of sexually oriented businesses; council's intent not to discriminate on the basis of gender but to enact a zoning ordinance which addresses the negative secondary effects on nearby property and on children; and that council's intent is not to suppress speech related activities protected by the First Amendment but to enact a zoning ordinance which addresses the negative secondary effects of sexually oriented businesses on certain nearby property and children.
[7] Because the NATCO case was originally decided by Judge H.F. Garcia, who also sits in the San Antonio Division of the Western District of Texas, the court was able to view the file and therefore the evidence which supported his finding the ordinance content neutral. In his opinion, Judge Garcia references that the City showed it considered land use studies from no less than fifteen cities and considered decisions of the United States Supreme Court in drafting its ordinance. The City had attached to its motion for summary judgment filed on June 24, 1997, affidavits from the Mayor of San Antonio and one of the city council members at the time Ordinance # 82135 was passed and who were named as defendants in that case. Both the mayor and council member stated they participated in city council meetings and executive sessions regarding the proposed ordinance and voted to approve the ordinance "based upon studies provided to the city council regarding the secondary effects of sexually oriented businesses, and also based upon legal advice received by the city council from the city's legal department."
[8] The Court would have been aided in its determination as to alternative avenues of communication if additional evidence as to available locations would have been provided. Perhaps because the type of evidence relied on herein is the same type of evidence found to be sufficient in NATCO for both the court sitting in the same division as this Court and the Fifth Circuit Court of Appeals, the City found it unnecessary to provide anything additional. Moreover, plaintiff did not attach any affidavits to its motion for summary judgment indicating it could not find a location to operate in the City after the City showed that new SOBs are in fact finding places to operate in the City. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1878678/ | 784 So. 2d 404 (2001)
The FLORIDA SENATE et al., Petitioners,
v.
FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, Respondent.
State of Florida, ex rel. Robert A. Butterworth, Attorney General, Petitioner,
v.
Florida Public Employees Council 79, AFSCME, Respondent.
Nos. SC01-765, SC01-766.
Supreme Court of Florida.
April 18, 2001.
*405 Barry Richard of Greenberg Traurig, P.A., Tallahassee, FL, for Petitioners in No. SC01-765.
Ben R. Patterson of Patterson & Traynham, Tallahassee, FL, for Respondent in No. SC01-765.
Charles T. Canady, General Counsel, Executive Office of the Governor, Tallahassee, FL, for Honorable Jeb Bush, Governor of the State of Florida, Amicus Curiae.
Johnnie B. Byrd, John Dudley Goodlette, Stacy J. Ritter and John Preston Seiler, Tallahassee, FL, for Former Speakers of the Florida House of Representatives, Amici Curiae.
Joseph Egan, Jr. and Tobe Lev of Egan, Lev & Siwica, P.A., Orlando, FL, for Florida AFL-CIO, Amicus Curiae.
Charles N. D'Asaro, pro se, Bagdad, Florida, and Christine M. Walsh, pro se, Bagdad, FL, Interveners.
Robert A. Butterworth, Attorney General, and Thomas E. Warner, Solicitor General, Office of the Solicitor General, Tallahassee, FL, for Petitioner in No. SC01-766.
Jerry G. Traynham and Ben R. Patterson of Patterson & Traynham, Tallahassee, FL, for Respondent in No. SC01-766.
PER CURIAM.
The petitioners in these consolidated cases ask this Court to issue a writ prohibiting the circuit court from proceeding with a hearing on an order to show cause why the petitioners in case number SC01-765 should not be held in contempt for refusing to obey an order enjoining certain *406 proceedings. The Attorney General also asks the Court to quash the orders issued by the circuit court and dismiss the pending circuit court action. We have jurisdiction. See art. V, § 3(b)(7), Fla. Const.; Moffitt v. Willis, 459 So. 2d 1018 (Fla.1984). We grant the petitions as explained herein.
I. FACTS
Florida Public Employees Council 79, AFSCME ("Union") is the statutory bargaining agent for approximately 70,000 Florida Career Service System employees. The statutory employer is the Governor of the State of Florida, Jeb Bush ("Governor"). In February 2001, as the Union and Governor were negotiating a successor collective bargaining agreement to the one that will expire June 30, 2001, the Governor declared a bargaining impasse and the parties utilized the impasse resolution mechanism set forth in section 447.403, Florida Statutes (2000).[1]
The parties presented argument and evidence to a special master. Prior to issuance of the special master's report,[2] the Joint Select Committee on Collective Bargaining ("Select Committee" or "Committee") on March 27, 2001, notified the parties that it had scheduled a public hearing for April 3, 2001, to resolve the impasse. The Union filed suit in circuit court against "the Florida Legislature (the Florida Senate and the Florida House of Representatives); Rodolfo `Rudy' Garcia and Frederick C. Brummer," seeking declaratory and injunctive relief. The complaint alleged that the timing of the hearing violated section 447.403 because it deprived the parties of an opportunity to review the special master's report and negotiate a settlement agreement on their own. The complaint asked the court to do two things: (1) issue a temporary restraining order ("TRO") barring the above named parties from holding the scheduled hearing, and (2) issue an order declaring that the above parties may not intervene in a bargaining dispute until requested to do so pursuant to section 447.403.
The circuit court on April 3 issued a TRO barring the Committee from holding the hearing. As with the Union's complaint, the order was directed to "the Florida Legislature (the Florida Senate and the Florida House of Representatives); Rodolfo `Rudy' Garcia and Frederick C. Brummer." A copy of the TRO was served on the enjoined parties that afternoon. The Committee nevertheless held the hearing later that day.
The Union on April 9 moved the circuit court to enforce the temporary restraining order and issue an order to show cause why the enjoined parties should not be held in contempt. The court on April 10 issued an order directing the enjoined parties to appear before the court at 1 p.m., Thursday, April 19, to show cause why they should not be held in indirect criminal contempt. The court on the same day issued an order appointing the State Attorney of the Second Judicial Circuit as counsel and directing him to prosecute the contempt order at the hearing. The Legislature *407 on Thursday, April 12, filed a petition in this Court seeking a writ of prohibition barring the circuit court from holding the contempt hearing.[3] The Florida Attorney General on the same day filed a petition in this Court seeking a writ of prohibition quashing the trial court's orders and dismissing the action. This Court on April 12 issued an order directing that responses be filed by 5 p.m., Monday, April 16, and that a reply be filed by 12 p.m., Tuesday, April 17.
II. THE APPLICABLE LAW
A. The Impasse Resolution Statute
Chapter 447, part II, Florida Statutes (2000), addresses collective bargaining practices for public employees. Section 447.403 sets forth a mechanism for resolving impasses:
(1) If, after a reasonable period of negotiation concerning the terms and conditions of employment to be incorporated in a collective bargaining agreement, a dispute exists between a public employer and a bargaining agent, an impasse shall be deemed to have occurred when one of the parties so declares in writing to the other party and to the commission. When an impasse occurs, the public employer or the bargaining agent, or both parties acting jointly, may appoint, or secure the appointment of, a mediator to assist in the resolution of the impasse.
(2) If no mediator is appointed, or upon the request of either party, the commission shall appoint, and submit all unresolved issues to, a special master acceptable to both parties. If the parties are unable to agree on the appointment of a special master, the commission shall appoint, in its discretion, a qualified special master. However, if the parties agree in writing to waive the appointment of a special master, the parties may proceed directly to resolution of the impasse by the legislative body pursuant to paragraph (4)(d). Nothing in this section precludes the parties from using the services of a mediator at any time during the conduct of collective bargaining.
(3) The special master shall hold hearings in order to define the area or areas of dispute, to determine facts relating to the dispute, and to render a decision on any and all unresolved contract issues.... Within 15 calendar days after the close of the final hearing, the special master shall transmit his or her recommended decision to the commission and the representatives of both parties by registered mail, return receipt requested. Such recommended decision shall be discussed by the parties, and each recommendation of the special master shall be deemed approved by both parties unless specifically rejected by either party by written notice filed with the commission within 20 calendar days after the date the party received the special master's recommended decision. The written notice shall include a statement of the cause for each rejection and shall be served upon the other party.
§ 447.403, Fla. Stat. (2000).
The statute further sets forth a procedure to be implemented in the event that either party rejects the special master's decision:
(4) In the event that either the public employer or the employee organization does not accept, in whole or in part, the *408 recommended decision of the special master:
(a) The chief executive officer of the governmental entity involved shall, within 10 days after rejection of a recommendation of the special master, submit to the legislative body of the governmental entity involved a copy of the findings of fact and recommended decision of the special master, together with the chief executive officer's recommendations for settling the disputed impasse issues. The chief executive officer shall also transmit his or her recommendations to the employee organization....
(b) The employee organization shall submit its recommendation for settling the disputed impasse issues to such legislative body and to the chief executive officer;
(c) The legislative body or a duly authorized committee thereof shall forthwith conduct a public hearing at which the parties shall be required to explain their positions with respect to the rejected recommendations of the special master;
(d) Thereafter, the legislative body shall take such action as it deems to be in the public interest, including the interest of the public employees involved, to resolve all disputed impasse issues....
§ 447.403, Fla. Stat. (2000).
B. Separation of Powers
Article II, section 3, Florida Constitution, provides that state government in Florida shall be divided into three separate branches:
Branches of government.The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.
Art. II, § 3, Fla. Const.
The Court in Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260 (Fla.1991), delineated two precepts underlying the separation of powers doctrine:
The doctrine encompasses two fundamental prohibitions. The first is that no branch may encroach upon the powers of another. The second is that no branch may delegate to another branch its constitutionally assigned power.
Chiles, 589 So.2d at 264 (citation omitted). The first precept is implicated in the present case.
Where the Legislature is concerned, it is only the final product of the legislative process that is subject to judicial review:
It is the final product of the legislature that is subject to review by the court, not the internal procedures. As we stated in General Motors Acceptance Corp. v. State, 152 Fla. 297, 303, 11 So. 2d 482, 485 (1943), the legislature has the power to enact measures, while the judiciary is restricted to the construction or interpretation thereof.
Moffitt v. Willis, 459 So. 2d 1018, 1021 (Fla. 1984). In the final analysis, "[t]he preservation of the inherent powers of the three branches of government, free of encroachment or infringement by one upon the other, is essential to the effective operation of our constitutional system of government." In re Advisory Opinion to the Governor, 276 So. 2d 25, 30 (Fla.1973).
III. THE PRESENT CASE
In the present case, as noted above, the circuit court below entered a temporary restraining order barring the petitioners from convening a scheduled public hearing. The petitioners contend *409 that the circuit court was without authority to enjoin the public hearing. We agree.
The petitioners, who were the defendants below, were sued in their legislative roles. The complaint alleged that the defendants (petitioners here) were the Florida House of Representatives and the Florida Senate and their Joint Select Committee on Collective Bargaining that is co-chaired by Senator Rodolfo "Rudy" Garcia and Representative Frederick C. Brummer. As the Court in Moffitt v. Willis, 459 So. 2d 1018, 1021 (Fla.1984), noted, Florida courts have full authority to review the final product of the legislative process, but they are without authority to review the internal workings of that body.
In the present case, the circuit court did what it had no authority to do: It issued an order contravening the internal workings of the Legislature. The letter from the Select Committee announcing the April 3 public hearing stated the topic of the hearing: "The public hearing is regarding the issues at impasse between the State of Florida and all parties pursuant to ss. 216.163(4) and 447.403, F.S." Although section 447.403 relates to the collective bargaining process, section 216.163(4), Florida Statutes (2000), does not; it addresses budgeting issues for agencies and provides criteria for incentive and disincentive funding.[4] Thus, an injunction for such a hearing would be inappropriate.
Further, the circuit court's temporary restraining order enjoined the entire Legislature and several of its officers. As noted above, the order was directed to the following parties: "the Florida Legislature (the Florida Senate and the Florida House of Representatives); Rodolfo `Rudy' Garcia and Frederick C. Brummer." The breadth of the temporary restraining order thus exceeded the statutory requirements of section 447.403 and impinged on the sovereignty of a co-equal branch of government.
IV. CONCLUSION
As a rule, this Court is reluctant to grant a petition for the extraordinary writ of prohibition but we are constrained to do so in the present case for several reasons. First, the Legislature is currently in session and is working to complete the state's business on schedule. A number of highly important issues remain to be resolved by that body. Second, the circuit court's temporary restraining order was directed broadly to the Legislature itself, a constitutional branch of state government, and several of its officers. This is an extraordinary situation that is unlikely to recur. Dispatch is at a premium so that the Legislature may complete the state's business promptly.
Based on the foregoing, we grant the petitions. However, because we are confident that the circuit court will comply with the dictates of this opinion, we withhold formal issuance of the writ of prohibition. Our decision is without prejudice to the parties pursuing any civil or administrative actions or remedies thereto or defenses thereto provided by law relating to collective bargaining rights.
No motion for rehearing will be allowed.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, PARIENTE and LEWIS, JJ., concur.
ANSTEAD, J., concurs in result only.
QUINCE, J., concurs in part and dissents in part with an opinion.
*410 QUINCE, J., concurring in part and dissenting in part.
I agree with the majority that the temporary restraining order (TRO), to the extent that it enjoins the Legislature from holding meetings, exceeds the scope of the circuit court's jurisdiction and must be quashed. However, to the extent that the TRO enjoins the "legislative body or a duly authorized committee thereof as described in section 447.403, Florida Statutes (2000), I would find prohibition improper and would not quash the restraining order because questions remain concerning the duties, responsibilities and capacity of this "legislative body" or "duly authorized committee thereof."
The parties who originally invoked the jurisdiction of the circuit court, the union serving Florida's 70,000 career service employees, did so in a declaratory judgment action concerning their rights under the collective bargaining statute. The circuit courts of this State have jurisdiction to hear complaints requesting declaratory relief. See § 86.011, Fla. Stat. (2000). The union asked the circuit court to declare its rights under section 447.403; more specifically, it asked the court to declare that it had a certain period of time (twenty days) under section 447.403(3) to reject the special master's report, or any part thereof, prior to the "legislative body" or "duly authorized committee thereof" holding a hearing to resolve the impasse between the union and the workers' employer and to address the parties' rejection of the special master's report. In this case, the "duly authorized committee" had scheduled the hearing prior to receipt of the special master's report. Therefore, the union asked the court to temporarily enjoin the "duly authorized committee" from convening the meeting.
The TRO issued by the trial judge does in fact enjoin the joint special committee, which is the duly authorized committee pursuant to the statutory scheme, from holding a meeting which the trial judge obviously considered to be in violation of section 447.403(3). Although we know that the courts cannot enjoin the Legislature from performing its constitutional legislative functions, the real question that is presented in this case is whether the "duly authorized committee" is acting in a legislative capacity when it acts pursuant to the provisions of the collective bargaining statute.
If the committee is acting in a legislative capacity then injunctive relief will not lie under the separation of powers doctrine. See generally Chiles v. Children A, B, C, D, E & F, 589 So. 2d 260 (Fla.1991); Idaho State AFL-CIO v. Leroy, 110 Idaho 691, 718 P.2d 1129 (1986). However, if the committee is acting in other than a legislative capacity, even though comprised of legislators, the answer is not so clear-cut. See, e.g., Bridge & Tunnel Officers Benevolent Ass'n, Inc. v. Ravitch, 105 Misc. 2d 924, 430 N.Y.S.2d 206 (N.Y.Sup.Ct.1980).
Another aspect overlooked by the petitioners is that this case involves not only the separation of powers[5] issue but also the constitutional right of public employees to collectively bargain.[6] Also implicated are the respective parties' rights and responsibilities under section 447.403, a section of the statutory provisions implementing this constitutional right. These issues have never been fully explored before the trial court, first because the union requested emergency relief from the trial court in the form of an ex parte temporary restraining order, and second because none of the parties so restrained requested relief *411 from the order in the form of a motion to dissolve, request for rehearing, or appeal. See generally Curtis v. Albritton, 101 Fla. 853, 132 So. 677 (1931); Department of Health & Rehab. Servs. v. Johnson, 504 So. 2d 423 (Fla. 5th DCA 1987). Although the circuit court may have acted precipitously in issuing this broadly worded injunction, I fear that this Court by issuance of the writ of prohibition may have prohibited the circuit court from exercising appropriate authority to enforce section 447.403, especially insofar as the action in the trial court alleges a violation of respondent's constitutional right to collectively bargain.
For these reasons, I would grant prohibition in part and quash the trial court's order to show cause to the extent that it requires the appearance of members of the Legislature in its legislative capacity. Otherwise I would remand to the trial court to proceed to address those issues that are necessary to a complete resolution of the complaint for declaratory relief.
NOTES
[1] Under the statutory procedure, the parties must submit argument and evidence to a special master, who issues a report. The parties then have twenty days to consider the report, and if either party rejects the report during that period the action proceeds directly to the appropriate "legislative body," which conducts a public hearing, hears argument of the parties on the disputed issues, and resolves the dispute. The "legislative body" in the present case is the Joint Select Committee on Collective Bargaining, co-chaired by Senator Rodolfo Garcia and Representative Frederick C. Brummer.
[2] According to the filings, the report was issued March 31 but was not received by the Union until 4 p.m., April 3.
[3] The petition was filed by the Florida Senate, the Florida House of Representatives, Senate President John McKay, Speaker of the House Tom Feeney, Senator Garcia, and Representative Brummer.
[4] Prior to 1994, section 216.163(4) addressed the Governor's duties in collective bargaining impasses. See § 216.163(4), Fla. Stat. (1993). This former section was redesignated section 216.163(6) in 1994. See Ch. 94-249, § 11, Laws of Fla.
[5] See art. II, § 3, Fla. Const.
[6] See art. I, § 6, Fla. Const. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264117/ | 479 F.Supp. 174 (1979)
Larry VENTLING and Linda Ventling, Plaintiffs,
and
National Wildlife Federation and South Dakota Wildlife Federation, Plaintiffs-Intervenors,
v.
Bob BERGLAND, etc., et al., Defendants,
and
Edward Hines Lumber Company, Defendant-Intervenor.
No. Civ 79-5036.
United States District Court, D. South Dakota, W. D.
September 12, 1979.
*175 *176 Brian D. Hagg, of Whiting & Hagg, and Jack T. Klauck, Rapid City, S.D., for plaintiffs.
Robert J. Golten, Boulder, Colo., for plaintiffs-intervenors.
Shelley M. Stump, Asst. U.S. Atty., Rapid City, S.D., and Charles B. Lennahan, Denver, Colo., for defendants.
Wayne F. Gilbert, of Gunderson, Farrar, Aldrich, Warder & DeMersseman, Rapid City, S.D., for defendant-intervenor.
MEMORANDUM DECISION
NICHOL, Chief Judge.
The plaintiffs in this case are seeking to enjoin the construction of roads, as part of a timber sale contract, in an area of the Black Hills National Forest known as Hay Draw. The plaintiffs are tenants of an inholding (private land surrounded by National Forest) within the Hay Draw area. Plaintiff-intervenors are private conservation organizations. The defendants are federal officials charged with the management of the Black Hills National Forest. Defendant-intervenor is the lumber company holding the timber sales contract for the Hay Draw area.
FACTUAL BACKGROUND
The Black Hills National Forest is an area of approximately 1,224,600 acres within Western South Dakota and Eastern Wyoming. The Forest is a relatively homogeneous geographic and geological area. Ponderosa pine is the predominant tree species in the Forest, and logging this species has been an important activity in the area for almost one hundred years. The history of federal management is nearly as long-standing; the first government timber sale in the nation took place within the Forest in 1898. Through the years logging has resulted in the development of travelways up most of the draws and canyons within the Forest.
On March 18, 1977, the Forest Service published a final Environmental Impact Statement (EIS) in conjunction with a Timber Management Plan for the Black Hills National Forest. The Plan is intended to provide direction for administrative actions until 1986. The concomitant EIS is therefore of the "programmatic" variety required when a series of actions will have a cumulative or synergistic environmental impact. As part of the preparation of the EIS the Forest Service investigated and examined the use of existing roads throughout the entire Forest. In certain areas the roads were found to be adequate. In other areas, including Hay Draw, the roads were found to be inadequate for management purposes under the Multiple Use Sustained Yield Act of 1960. 16 U.S.C. section 528 et seq. Specifically, many of the roads were determined to be too narrow and highly susceptible to poor drainage, leading to soil erosion. The fact that many of the roads ran through draws meant that they were *177 not "buffered" by vegetative cover necessary for proper wildlife management. Some of the roads, and the system as a whole, were found insufficient to provide diverse recreational opportunities within the Forest.
The new Timber Management Plan proposed, inter alia, a system of roads to replace the haphazard travelways running through the draws and canyons. The average density of roads would be reduced from 2.2 miles to 1.3 miles for every 640 acres. Under the Plan new or upgraded travelways would be intended for long-term service and could be operated continuously, or through the use of closures, intermittently. Travelways not needed for long-range management purposes would be obliterated.
A draft EIS was made available to the public and a period of eleven months allowed for public comment and comment by the Council on Environmental Quality. The final draft devoted a section to the reproduction of these comments and the Forest Service's responses to the comments. Five alternative timber management directions were analyzed. The ability of each of these alternatives to meet management goals was assessed, as well as their probable effects. The proposed plan was described and discussed in detail. The final Draft was transmitted to the Council on Environmental Quality on March 18, 1977.
On June 14, 1978, the Forest Service published an Environmental Analysis Report (EAR) on four proposed timber sales in a 7,000 acre area south of Custer, South Dakota. One of the four sale units is Hay Draw, an area of approximately 2,000 acres. The EAR embodied the information, analysis, goals, and objectives set forth in the programmatic EIS prepared for the overall Timber Management Plan. There was a determination, contained in the EAR, that the probable environmental impacts of the action proposed for the four-unit area were not significant, controversial, or legislatively related. The Forest Service therefore concluded that an Environmental Impact Statement was not required for the four-unit management plan.
The EAR contained a discussion of a new system of roads in the Hay Draw area. Three alternative road systems, including new construction and upgrading some existing roadway, were presented in the EAR. The use of the existing system was not specifically discussed in the EAR. The existing system in Hay Draw is composed primarily of narrow, two-track dirt roads which have been developed primarily through vehicular use rather than construction. Many of these roads are located in draw bottoms. One of the travelways was through the private inholding upon which the plaintiffs reside.
The alternative involving the least amount of construction was chosen for implementation of the timber sale contract for Hay Draw. The contract, awarded to the Edward Hines Lumber Company, defendant-intervenor, on September 29, 1978, required the construction and upgrading of a total of 8.12 miles of road in the Hay Draw area. The system is denominated the 308 Road System. A road, designated 308, will run along the east side of the inholding. Three spurs off of 308, styled 308.1B, 308.1C, and 308.1D, are also to be constructed pursuant to the timber sale contract. 308.1B will traverse National Forest land to the north of the inholding and stretch for a short distance down the west side of the inholding. Although portions of 308 and 308.1B are graveled, these roads will primarily be dirt surfaced. Two closures, one on 308 and another on 308.1B, will be constructed for management purposes. For the most part the roads will be built on the sides of slopes, avoiding drainage bottoms. Some of the existing roads will be obliterated, resulting in a lower overall density in the Hay Draw area.
Upon learning of the proposed road construction in the Hay Draw area sometime in 1977, the plaintiffs initiated a series of contacts with Forest Service personnel. The plaintiffs expressed concern about the extent and quality of proposed roads in the area. They offered to grant the Forest Service a limited easement over the travelway existing on the inholding. This offer *178 was substantiated by the owner of the property. The easement would have allowed access over the existing road to Forest Service personnel and contractors for management purposes. The general public, however, would not have been allowed to use this road. The offer was rejected by the Forest Service.
Work progressed on the actions required by the timber sale contract throughout the fall of 1978 and the winter of 1979, with roughly sixty percent of the planned road building activity completed. A verified complaint and an application for temporary restraining order were filed on April 25, 1979. On April 26, 1979, the Honorable Andrew W. Bogue, United States District Judge for the District of South Dakota, upon stipulation, entered a temporary restraining order enjoining the Forest Service and its contractors from further construction of Road 308 or any of its spurs.[1] The case was transferred to this court for further proceedings. The hearing for a preliminary injunction and trial on the merits was consolidated; evidence was taken on May 17, 18 and 19, 1979. The trial was continued until June 14, 1979. Upon resumption of the trial the plaintiff-intervenors moved to amend the complaint. This motion was denied.
PLAINTIFFS' CONTENTIONS
This case presents three issues:
1. Do the actions contemplated by the management plan and timber sale contract for the Hay Draw area require the preparation of an Environmental Impact Statement in addition to the programmatic EIS prepared in conjunction with the Timber Management Plan for the Black Hills National Forest?
2. Was the Forest Service required to consider the utilization of the existing road system in Hay Draw as an alternative to the road construction proposed in the EAR?
3. Was the decision to proceed with the road construction in Hay Draw arbitrary and capricious?
The motion to amend the complaint made by the plaintiff-intervenors was denied. It would have expanded the relief sought to include the other three units covered by the EAR. It also contained an allegation that the Forest Service failed to comply with Section 7 of the Endangered Species Act, (16 U.S.C. section 1536), by not consulting with the United States Fish and Wildlife Service about impacts the road construction might have on the Bald Eagle. This motion was denied.
The motion was made after the plaintiffs had rested and the defendants commenced their case. Neither of these issues was tried by either the implied or expressed consent of the defendants. See, F.R.Civ.P. 15(b). Although some evidence was introduced that related to the two new issues raised by the amended complaint, the evidence was also relevant to issues already in the case. Under these circumstances the defendants cannot be said to have consented to the trial of the new issues. See, 6 Wright & Miller, Federal Practice and Procedure, section 1493 at p. 466 (1971). Allowing the plaintiffs to raise new issues at this point in the proceeding would have required a major realignment of the defendants' case. At the very least a continuance would have been necessary to allow the defendants to properly prepare. Considering the equitable nature of the relief being sought in the suit, and the fact that the temporary restraining order had already been extended, a further extension of the temporary restraining order would have been inappropriate. The defendant-intervenor was being prevented from proceeding with the contract, the Forest Service's management plans were stalemated, and the holder of another timber sale contract in the four-unit area had not had the opportunity to look out for its interests in the first part of the trial.
There was a further problem with the claim raised under the Endangered Species *179 Act. A citizen's suit may not be brought under the Act until sixty days after written notice of a violation has been filed with the Secretary of Interior. 16 U.S.C. section 1540(g)(2)(A). No such notice was ever filed. Under the circumstances it is doubtful that this court would have jurisdiction over the claim.
I
PROCEDURAL COMPLIANCE WITH NEPA
The plaintiffs' first contention is that the actions contemplated by the management plan and timber sale contract for the Hay Draw area require the preparation of an Environmental Impact Statement. Section 102(2)(C) of the National Environmental Policy Act (NEPA) requires that every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment, be accompanied by a detailed environmental impact statement by the responsible federal official. The Forest Service did not prepare a site-specific EIS for the timber sale challenged in this suit because it was determined that the proposed action was not a major federal action significantly affecting the quality of the human environment. This determination is subject to a review of its reasonableness under the circumstances. Minnesota Public Interest Research Group v. Butz (MPIRG I), 498 F.2d 1314, 1321 (8th Cir. 1974). The question of whether the negative determination would have been reasonable in the absence of the programmatic EIS is not reached here; this court concludes that even if the proposed action could be classified a major federal action significantly affecting the quality of the human environment, the programmatic EIS satisfies NEPA.
It is clear that the Timber Management Plan for the entire Forest would have the type of cumulative or synergistic environmental impact upon the region that requires the preparation of a programmatic impact statement. See, Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). There is no challenge to the EIS as it relates to the entire Forest. Rather, the plaintiffs contend that the timber sale in Hay Draw requires a site-specific impact statement.[2]
The test of compliance with the procedural provisions of NEPA is one of good faith objectivity. Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 296 (8th Cir. 1972). NEPA does not require exhaustive discussion of environmental effects, or an objection free document. In reviewing an agency's compliance, "(t)he touchstone of our inquiry is reason." Minnesota Public Interest Research Group v. Butz (MPIRG II), 541 F.2d 1292, 1300 (8th Cir. 1976).
Although a programmatic EIS may often be inadequate relative to an individual action, there is no reason to require a site-specific statement that would merely duplicate the programmatic EIS. The guidelines set down by the Council on Environmental Quality require subsequent statements on individual actions only when significant environmental impacts were not adequately evaluated in the programmatic statement. 40 C.F.R. section 1500.6(d)(1) (1978). NEPA's "rule of reason does not require rethinking of everything all the time." Sierra Club v. Andrus, 189 U.S.App.D.C. 117, 128, 581 F.2d 895, 906 (D.C.Cir. 1978). In MPIRG I, supra, 498 F.2d 1314 (8th Cir. 1974), the Eighth Circuit noted that a programmatic EIS could, if properly prepared, obviate the need for a site-specific EIS.
"We are of the view that upon consideration of the overall timber management policy of the Forest Service in an EIS complying with NEPA, each administrative action taken pursuant to that policy will not require a separate impact statement. In other words, if the environmental effects of timber cuttings are considered *180 in the overall EIS, an individual EIS for each timber sale would not be required, absent a material change in circumstances or a departure from the policy covered in the overall EIS." MPIRG I, supra, 498 F.2d at 1323, fn. 29.
The EIS subsequently prepared for the Boundary Waters Canoe Area lacked sufficient information to apprise the decision makers as to the manner in which future timber management was to occur. Minnesota Public Interest Group v. Butz (MPIRG II), 541 F.2d 1292, 1306 (8th Cir. 1976). The Court recognized, however, that a Timber Management Plan and an accompanying EIS were being prepared for the entire Superior National Forest. It was indicated that future sales could be held under this Timber Management Plan if the accompanying EIS contained comprehensive analysis of the environmental effects of timber management in the BWCA. MPIRG II, supra, 541 F.2d at 1307.
The programmatic EIS in the case sub judice is a comprehensive analysis of the environmental impacts of timber management, including transportation, throughout the Black Hills National Forest. Each of the five areas of inquiry required by section 102(2)(C) were explored in the EIS. The examination was made in light of the prevalent type of environmental conditions existing in the Forest; the Forest being relatively homogeneous. Hay Draw has no feature that would distinguish it from the rest of the Forest so far as the environmental impacts occasioned by road building are concerned. The EIS provided the direction for the development of the management plan for the Hay Draw area. The planned management for the area, as reflected in the EAR, presents no material departure from the timber management policy covered in the EIS. Each of the potential adverse environmental impacts that the plaintiffs advanced at trial were addressed in the EIS.
It is recognized that a programmatic EIS will often be insufficient as it relates to site-specific actions. The EIS may not be detailed enough to satisfy the requirements of NEPA. Cf., MPIRG II, supra, 541 F.2d 1292. Or, the program may be so broad in scope that a site-specific EIS is the only manner in which the objectives of NEPA can be met. Cf., Kelley v. Butz, 404 F.Supp. 925 (W.D.Mich.1975); and, Natural Resources Defense Council, Inc. v. Morton, 388 F.Supp. 829 (D.D.C.1974), aff'd 174 U.S. App.D.C. 77, 527 F.2d 1386 (D.C.Cir. 1976), cert. den. 427 U.S. 913, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976). But, where the programmatic EIS is sufficiently detailed, and there is no change in circumstances or departure from the policy in the programmatic EIS, no useful purpose would be served by requiring a site-specific EIS.
The plaintiffs have not pointed out any characteristics of the Hay Draw area that would make it significantly different from the type of conditions examined in the programmatic EIS. Nor is there any apparent departure from the transportation policy examined in the programmatic EIS. It should be remembered that the roads involved are primarily dirt-surfaced with some gravelingnot four lane concrete highways. Under these circumstances the Forest Service should not be required to rethink the course of action considered in the programmatic EIS.
It is expected that the Forest Service will prepare Environmental Analysis Reports on future timber sales in the Black Hills National Forest. If the EAR reveals significant differences between the specific site and the prevalent conditions examined in the programmatic EIS, a site-specific EIS would be required. Likewise, a departure from the policy scrutinized in the programmatic EIS would necessitate a site-specific EIS. Absent such circumstances individual actions taken pursuant to the Timber Management Plan should not require subsequent statements.
II
CONSIDERATION OF ALTERNATIVES
The plaintiffs next contend that the Forest Service failed to adequately consider a "no action" alternative to the road *181 building in the Hay Draw area. This contention is based on section 102(2)(E) of NEPA (formerly section 102(2)(D)), which requires an agency to evaluate alternatives to a proposed action irrespective of an obligation to prepare an EIS. "The duty to develop alternatives under section 102(2)(D) is subject to a rule of reasonableness. The discussion of alternatives need not be exhaustive if the impact statement presents sufficient information for a reasoned choice of alternatives." Robinson v. Knebel, 550 F.2d 422, 425 (8th Cir. 1977) (citations omitted). Further, where an alternative has obvious disadvantages it may not be worthy of exhaustive examination in environmental documents. Iowa Citizen's Council for Environmental Quality, Inc. v. Volpe, 487 F.2d 849 (8th Cir. 1973). "The question to be asked is whether all reasonable alternatives to the project have been considered, even if some were only briefly alluded to or mentioned." Environmental Defense Fund, Inc. v. Armstrong, 352 F.Supp. 50, 57 (N.D. Cal.1972) (quoted with approval in ICEQ v. Volpe, supra, 487 F.2d at 853). In determining the extent of detail required, the complexity of the environmental problems involved is to be considered, including whether the action will adversely affect any features of special environmental concern. Knebel, supra, 550 F.2d at 426.
The programmatic EIS considered five alternatives. One of the alternatives was a "no action" approach that involved a continuation of the timber and travel management plan in use at the time. In addition the EIS identified several inadequacies associated with the type of draw bottom travelways found throughout the Forest. These inadequacies included susceptibility to poor drainage and soil erosion, narrowness, and poor location for wildlife management purposes. The road system was also found to be inadequate for public recreational use.
The Hay Draw area was one of those identified in the EIS as having a road system that did not adequately serve management goals. The EAR refers to and incorporates the goals set forth in the EIS. Three alternatives are dealt with in detail in the EAR. The plaintiffs' contention centers on the failure to deal with the alternative of using the existing road that runs through the inholding in the EAR. Under the circumstances this is not fatal.
Although the specific road was not discussed, the option of using existing roads was dealt with in the EIS, and their shortcomings discussed. The use of the existing road through the inholding further had the obvious disadvantage of not filling all the management needs of the Forest in that area. All the problems associated with the draw bottom travelways pertained to this existing road. Finally, the existing road would have required substantial upgrading, using public funds, with the public thereafter barred from using the road.
It cannot be said that all reasonable alternatives were not at least briefly considered in either the EIS or the EAR. Given the nature of the proposed action, and the lack of any unique characteristics in the area, the rule of reason compels a finding that alternatives to the 308 road system were adequately explored.
III
SUBSTANTIVE REVIEW OF THE FOREST SERVICE'S DECISION
The plaintiffs' final contention is that the decision to build new roads and the upgrading of some existing roads in the Hay Draw area violated a substantive obligation to minimize all unnecessary environmental impacts in the Hay Draw area. It is clear that this court is not allowed to substitute its judgment for that of Forest Service. See, ICEQ v. Volpe, supra, 487 F.2d 849. The scope of substantive review is limited to two determinations: 1) Whether the agency reached its decision after a full, good faith consideration and balancing of environmental factors; and 2) Whether the agency's actual balance of costs and benefits was arbitrary or clearly gave insufficient weight to environmental values. MPIRG II, supra, 541 F.2d at 1300. Quite simply, the court cannot "interject itself *182 within the area of discretion of the executive as to the choice of the action to be taken." Kleppe v. Sierra Club, supra, 96 S.Ct. at 2730 n. 21. Overturning the Forest Service's decision in this case would require just such interjection.
Virtually all of the objections the plaintiffs have raised were addressed in either the EIS or the EAR. Some of the management goals are conflicting; providing recreational opportunities may not create optimum wildlife habitat. Both the general approach in the EIS and the specific actions proposed in the EAR evince a diligent attempt by the Forest Service to balance competing needs. The plaintiffs point to only one or two interests that might be better served if the existing road is used. There is actually reason to believe that following the course of action urged by the plaintiffs might result in greater environmental harm than the road system proposed by the Forest Service.
The major objection advanced relates to wildlife habitat and a potential increase in poaching. The timber sale contract contains required actions that will not only maintain wildlife habitat in the area, but actually improve the habitat. The poaching problem was considered in the EIS; providing for a vegetative "buffer" along the edge of roads was the management tool adopted to meet the problem.
Far from being arbitrary, the proposed road may well be the most environmentally sound manner of conducting the timber sale. It is obvious that great weight was given to environmental concerns, and efforts were taken to minimize any unavoidable adverse effects. Not everyone may agree with the course of action taken by the Forest Service, but the action is clearly within the discretion invested in the Forest Service and will not be disturbed by this court.
CONCLUSION
The decision to construct a new system of travelways in the Hay Draw area complied with the procedural and substantive requirements of NEPA. The requested injunction against the road building activities in Hay Draw is therefore denied.
NOTES
[1] Completion of graveling was allowed on a limited portion that had already been bulldozed, packed, and prepared for graveling.
[2] In fact the controversy centers on the roads to be built as part of the timber sale contract; the plaintiffs have expressed willingness to allow the timber sale to proceed through the use of the road existing on the private inholding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264034/ | 237 P.3d 645 (2010)
The PEOPLE of the State of Colorado, Complainant,
v.
Erik G. FISCHER, Respondent.
No. 09PDJ016.
Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
May 7, 2010.
*646 Attorney Regulation. Following a Sanctions Hearing, a Hearing Board suspended Erik G. Fischer (Attorney Registration No. 16856) from the practice of law for a period of ninety days, all stayed upon the successful completion of a one-year period of probation with conditions, effective June 7, 2010. Respondent admittedly and knowingly failed to fully disclose to a client the possible effect of a conflict of interest. The Hearing Board found significant mitigating factors in departing from the presumed sanction of suspension. His misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5 and violated Colo. RPC 1.8(a).
On September 29, 2009, a Hearing Board composed of LARRY A. DAVELINE, a citizen board member, BRUCE W. SATTLER, a member of the Bar, and WILLIAM R. LUCERO, the Presiding Disciplinary Judge ("PDJ"), held a one-day hearing on the issue of sanctions pursuant to C.R.C.P. 251.18. Lisa E. Frankel appeared on behalf of the Office of Attorney Regulation Counsel ("the People"), and Alexander R. Rothrock appeared on behalf of Erik G. Fischer ("Respondent"), who also appeared. 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. ISSUE AND SANCTION
Suspension is generally appropriate when a lawyer knows of a conflict of interest and fails to fully disclose to a client the possible effect of that conflict. Public censure *647 is generally appropriate when a lawyer is negligent in determining whether his own interests may materially affect the representation of a client. Respondent admitted he violated Colo. RPC 1.8(a). If the Hearing Board finds he acted knowingly, but also finds substantial mitigating factors, what is the appropriate sanction for his misconduct?
The Hearing Board finds the appropriate sanction for Respondent's misconduct is a suspension from the practice of law for a period of ninety days, stayed upon the successful completion of a one-year period of probation, on the condition that there shall be no further violations of the Colorado Rules of Professional Conduct.
II. PROCEDURAL HISTORY
On March 10, 2009, the People filed a complaint alleging two separate violations of the Colorado Rules of Professional Conduct.[1] Respondent filed an answer on April 9, 2009. On September 4, 2009, the PDJ denied "Respondent's Motion for Summary Judgment on Claim I." The parties then filed a "Stipulation, Agreement and Affidavit Containing the Respondent's Conditional Admission of Misconduct" on September 8, 2009. In the stipulation, Respondent admitted to a violation of Colo. RPC 1.8(a) for failing to provide adequate disclosures of conflict in one instance, and for failing to provide any written disclosure in three other instances, as discussed below. As a part of the stipulation, the People moved to dismiss an alleged violation of Colo. RPC 1.7. The PDJ hereby grants that request.
III. ESTABLISHED FACTS AND RULE VIOLATIONS
The Hearing Board hereby adopts and incorporates by reference the factual background of this case fully detailed in the parties' stipulation.[2] Specifically, the parties stipulated that Respondent violated Colo. RPC 1.8(a) (2007), which stated, "[a] lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client" unless the terms of the transaction are fully disclosed to the client in writing, the client is informed that use of independent counsel may be advisable and is given reasonable opportunity to seek such counsel, and the client consents in writing to the conflict disclosure.[3]
Jurisdiction
Respondent took and subscribed the Oath of Admission and gained admission to the Bar of the Colorado Supreme Court on October 21, 1987. He is registered upon the official records, Attorney Registration No. 16856, and is therefore subject to the jurisdiction of the Hearing Board pursuant to C.R.C.P. 251.1.
Stipulated Facts
On October 26, 2005, Vanessa Dominguez suffered injuries in an automobile incident as a passenger in an automobile driven by her cousin. On June 14, 2006, Ms. Dominguez retained the firm of Fischer & Fischer, P.C. ("Fischer & Fischer") to represent her in a personal injury action related to the incident.[4] Fischer & Fischer filed a lawsuit against Ms. Dominguez's cousin and pursued an uninsured motorist claim against Ms. Dominguez's insurer, American Family Insurance Company ("American Family"). Ms. Dominguez was Respondent's client at the time of each of the loans described below.
Real Estate Recovery, L.L.C. ("Real Estate Recovery") is a company formed and organized by Respondent. At the time of the loans discussed herein, Respondent and Dr. Rocci Trumper owned the company and shared all profits equally. Dr. Trumper never met with Ms. Dominguez nor spoke with her regarding the loans described herein, *648 and all of Ms. Dominguez's interactions regarding the loans were with Respondent. However, Respondent and Dr. Trumper jointly participated in the decisions regarding whether to loan Ms. Dominguez money.[5]
On June 30, 2006, Real Estate Recovery loaned Ms. Dominguez $10,300.00, as evidenced by a promissory note.[6] To pay her indebtedness on the promissory note, Ms. Dominguez assigned Real Estate Recovery the amount of her monetary recovery from the personal injury case.[7] The promissory note provides for interest at a rate of 18% per annum, with unpaid principal and defaulting interest bearing an interest rate of 24% per annum. Respondent provided Ms. Dominguez with a disclosure concerning this loan on June 30, 2006.[8]
The parties stipulated and the Hearing Board agrees that Respondent provided inadequate disclosures to Ms. Dominguez with respect to this initial loan. The disclosures did not contain a clear explanation of the differing interests of the lawyer and client, the advantages of seeking independent advice or a detailed explanation of the risks and disadvantages to the client entailed in the business arrangement. Further, the disclosure regarding the initial loan was signed on the same date the loan was made and only a couple of weeks after Ms. Dominguez retained Respondent. Thus, although Ms. Dominguez waived her right to consult with independent legal counsel in the June 30, 2006, disclosure, she did not waive the conflict itself.
On October 11, 2006, Ms. Dominguez borrowed an additional $5,150.00 from Real Estate Recovery, evidenced by another promissory note under the same terms and conditions as the previous note.[9] On November 30, 2006, Ms. Dominguez borrowed additional funds, at which time Respondent requested additional collateral on behalf of Real Estate Recovery. Ms. Dominguez signed a deed of trust granting Real Estate Recovery a second mortgage on her home, and she gave Respondent a Movado watch as collateral.[10] Ms. Dominguez also signed a final promissory note reflecting the total principal for all three loans in the amount of $21,509.23.[11] This promissory note replaced the two notes previously executed by Ms. Dominguez. On June 19, 2007, Ms. Dominguez received a fourth loan from Real Estate Recovery in the amount of $2,607.00.[12]
Respondent never advised Ms. Dominguez of the consequences of providing security for the loans. Respondent likewise failed to advise Ms. Dominguez of the desirability of seeking independent counsel prior to these transactions, and he failed to allow her reasonable time to do so. Finally, Respondent did not obtain Ms. Dominguez's consent to these conflicts in writing. Although Respondent obtained a written waiver from Ms. Dominguez of her right to consult with independent counsel, these circumstances raise a question as to whether her waiver was knowing and intelligent. In short, Respondent never provided Ms. Dominguez with any written disclosures regarding the three additional loans between the parties, nor did he alert her to possible conflicts of interest as *649 regards the security interest Real Estate Recovery took in her home or her watch.
By failing to make adequate disclosures with respect to the first loan, and by failing to provide any written disclosures with respect to the second through fourth loans, Respondent engaged in a conflict of interest with his client in violation of Colo. RPC 1.8(a).
IV. 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.[13] 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 Duty, Mental State, and Injury
Respondent violated a duty owed to his client.[14] Respondent specifically failed to avoid a conflict, which may have impaired his independent judgment during the representation. This duty arises out of the nature of the basic relationship between the lawyer and the client. Here, Respondent failed to comply with this duty.
With regard to mental state, the People argue Respondent acted knowingly, while Respondent contends he acted negligently.[15] Both parties point to the disclosure Respondent provided to Ms. Dominguez for the initial loan. The People allege it demonstrates, despite its inadequacy, that Respondent knew he had to provide the disclosure. Respondent argues he believed the first disclosure obviated the need for subsequent disclosures with respect to the additional loans.
The Hearing Board finds Respondent knowingly engaged in the established misconduct, but without the conscious objective to accomplish a particular result. While Respondent attempted to comply with his general and subjective understanding of Colo. RPC 1.8, he knowingly failed to comply with its specific provisions at the time of the business transactions with his client. Although Respondent acted without the conscious objective to cause particular injury to his client, he nevertheless caused her potential injury through his knowing conduct by jeopardizing his ability to remain objective throughout the attorney-client relationship.[16]
ABA Standard 3.0 Aggravating & Mitigating Factors
Aggravating circumstances include any considerations or factors that may justify an increase in the degree of discipline to be imposed.[17] Mitigating circumstances include any considerations or factors that may justify a reduction in the degree of discipline to be imposed.[18] The Hearing Board considered evidence of the following aggravating and mitigating circumstances in deciding the appropriate sanction.
Vulnerability of Victim 9.22(h)
Ms. Dominguez faced severe financial difficulties and the possibility of losing her home at the time she entered into the loans with Respondent. Furthermore, Respondent represented her client in a matter in which *650 she placed her trust in him. Under these circumstances, unsophisticated as well as sophisticated clients are always vulnerable. The provisions of Colo. RPC 1.8 are designed to address this precise situation.
Substantial Experience in the Practice of Law 9.22(i)
Respondent has practiced law for approximately twenty-two years and therefore should have recognized the pitfalls of entering into a business transaction with a client.
Absence of a Prior Disciplinary Record 9.32(a)
Respondent does not have a prior disciplinary record over the course of approximately twenty-two years of practicing law.
Absence of a Dishonest or Selfish Motive 9.32(b)
The Hearing Board finds Respondent acted with an absence of a dishonest motive, having considered and accepted Respondent's testimony that his client, Ms. Dominguez, was very worried about losing her home, and that he attempted to help her retain this asset in the face of foreclosure.
Cooperative Attitude Toward the Proceedings 9.32(e)
Respondent fully cooperated in these disciplinary proceedings.
Good Character and Reputation 9.32(g)
The Hearing Board considered and accepted the testimony of David J. Dansky, Thomas F. Mulvahill, and David A. Mestas as demonstrating Respondent's good character and reputation in the legal community.
Remorse for His Actions 9.32(l)
Respondent felt remorse for his misconduct in his dealings with Ms. Dominguez.
Analysis Under ABA Standards and Colorado Case Law
In light of its finding that Respondent knowingly violated Colo. RPC 1.8, the Hearing Board concludes the following ABA Standard is applicable:
Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.[19]
The Colorado Supreme Court recently addressed Colo. RPC 1.8 in a case affirming a six-month stayed suspension upon successful completion of a two-year period of probation for a lawyer who violated this rule.[20] While helpful to the analysis here, the Hearing Board finds that case distinguishable due to the lack of remorse from the respondent attorney and because it involved additional substantive claims.
Here, Respondent presented substantial and credible evidence of his excellent reputation in the legal community, his good character, his clean disciplinary record and his remorse for his misconduct. Each of these factors influenced our decision as to the appropriate sanction, which we believe should be a suspension stayed upon the successful completion of a period of probation.
V. CONCLUSION
Respondent violated a duty to his client to avoid a conflict of interest. This duty of loyalty is fundamental to the attorney-client relationship because the client places trust in his or her attorney to use judgment that is not compromised by the attorney's own personal interests during the course of the representation. Therefore, upon consideration of the duties violated, the established mental state, the injury caused, and the aggravating and mitigating factors, the Hearing Board concludes Respondent should be suspended from the practice of law for ninety days, stayed upon the successful completion of a period of a one-year period of probation.
*651 VI. ORDER
The Hearing Board therefore ORDERS:
1. ERIK G. FISHER, Attorney Registration No. 16856, is hereby SUSPENDED from the practice of law for a period of NINETY (90) DAYS, STAYED upon the successful completion of a one-year period of probation, which shall include no further violations of the Colorado Rules of Professional Conduct pursuant to C.R.C.P. 251.7. This order 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 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] The People filed an "Amended Complaint" on July 28, 2009.
[2] See Exhibit 19. The parties also stipulated to the admission of Exhibits 1-22, which have been incorporated into the Hearing Board's findings of fact.
[3] This rule was in effect at the time Respondent entered into a business relationship with his client. The current rule is similar but not identical.
[4] See Exhibit 1.
[5] See Exhibit 20.
[6] See Exhibit 2.
[7] See Exhibit 3. On or about December 1, 2006, Real Estate Recovery filed a UCC security interest against any proceeds collected in the personal injury lawsuit. See Exhibit 9.
[8] See Exhibit 4.
[9] See Exhibit 5.
[10] See Exhibit 8.
[11] See Exhibits 6-7.
[12] See Exhibits 10-12. On January 29, 2008, Real Estate Recovery and Fischer & Fischer filed a complaint for declaratory judgment against Ms. Dominguez and American Family in Weld County District Court, seeking to grant full force and effect to a $75,000.00 settlement they alleged Ms. Dominguez entered into with American Family. Ultimately, this case was resolved through settlement; the parties agreed to split the $75,000.00 proceeds, with Real Estate Recovery receiving $22,500.00, Fischer & Fischer receiving $25,000.00 and Ms. Dominguez receiving $27,500.00. Regrettably, Ms. Dominguez eventually filed for Chapter 7 bankruptcy on February 14, 2008. She was granted a discharge on June 11, 2008. See Exhibits 14, 16 and 17.
[13] See In re Roose, 69 P.3d 43, 46-47 (Colo. 2003).
[14] See ABA Standard 4.0.
[15] See ABA Standards, 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. "Negligence" is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.
[16] See ABA Standards, Definitions. "Potential injury" is harm to a client ... that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct.
[17] See ABA Standard 9.21.
[18] See ABA Standard 9.31.
[19] See ABA Standard 4.32 (emphasis added).
[20] See In re Fisher, 202 P.3d 1186 (Colo.2009). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264045/ | 238 P.3d 1265 (2010)
ESTATE OF Jacob BRADEN, by and through its personal representative, Tonya GABALDON, Plaintiff/Appellant,
v.
The STATE of Arizona, a body politic; and The Division of Developmental Disabilities of the Arizona Department of Economic Security, a body politic, Defendants/Appellees.
No. 1 CA-CV 08-0764.
Court of Appeals of Arizona, Division 1, Department E.
June 29, 2010.
*1266 Law Office of Scott E. Boehm PC by Scott E. Boehm, Phoenix, and Knapp & Roberts PC by Craig A. Knapp, Scottsdale, and Warnock MacKinlay & Carman by Krista M. Carman, Prescott, Co-Counsel Attorneys for Plaintiff-Appellant.
Terry Goddard, Attorney General by Michael Gaughan, Assistant Attorney General, and Fred M. Zeder, Assistant Attorney General, Phoenix, Attorneys for Defendants-Appellees.
OPINION
OROZCO, Judge.
¶ 1 The Estate of Jacob Braden (the Estate) appeals from the entry of summary *1267 judgment in favor of the State of Arizona and the Division of Developmental Disabilities (DDD) of the Department of Economic Security (DES) (collectively, the State) on the Estate's claim for statutory abuse or neglect under the Adult Protective Services Act (APSA) and the denial of the Estate's motion for a new trial. See Arizona Revised Statutes (A.R.S.) §§ 46-451 to -459 (Supp.2009).[1] For the reasons stated below, we reverse the grant of summary judgment in favor of the State and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 2 Jacob Braden (Jacob) was a developmentally disabled adult who was eligible to receive services from the State pursuant to A.R.S. §§ 36-559 and -581.1 (2009). DDD is authorized to contract with private agencies to provide developmental disability services and programs to its clients. See A.R.S. § 36-552.D (2009). Through a vendor agreement, DDD contracted with Arizona Integrated Residential and Educational Services, Inc. (AIRES) to provide services for Jacob.[2] Jacob died in 2005 as a result of injuries he sustained while living at the AIRES facility.
¶ 3 The Estate filed a claim against the State and AIRES, alleging, among other claims, statutory abuse and neglect pursuant to A.R.S. § 46-455. The Estate claimed that the State was at fault for maintaining Jacob in an unsuitable living arrangement at the AIRES facility and for several negligent acts and omissions. The State filed a motion for summary judgment, arguing that it was not liable under A.R.S. § 46-455 because it did not assume a duty to provide care and was not employed to provide care for Jacob.
¶ 4 The trial court granted the motion for summary judgment finding that the State was not liable under section 46-455.B. The Estate filed a motion for new trial.
¶ 5 The court denied the motion for new trial. The court explained its ruling as follows:
The word "employ" denotes a relationship between parties where one pays the other for services rendered. The State was not hired to care for the decedent and did not provide his actual, hands-on care. Although DES and DDD are funded in part through federal monies, this does not mean that the State was employed to provide care to the decedent.
To "assume" a duty mean[s] to take upon one's self a duty. The State did not take upon itself the duty to provide the decedent's care. Rather, it was required to oversee and administer such care pursuant to A.R.S. § 36-551 et seq.
¶ 6 The Estate filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 12-2101.B and F.1 (2003).
DISCUSSION
I. Standard of Review
¶ 7 "We review issues of law involving statutory interpretation and a trial court's grant of summary judgment de novo." Bentley v. Building Our Future, 217 Ariz. 265, 270, ¶ 11, 172 P.3d 860, 865 (App.2007). When construing a statute, we look first to the statute's language because we expect it to be the best and most reliable indication of the statute's meaning. Id. at ¶ 12. "[W]here the [statutory] language is plain and unambiguous, courts generally must follow the text as written." Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., Inc., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994). If the statute's language is ambiguous, we may resort to tools of statutory interpretation to determine the legislature's intent. Bentley, 217 Ariz. at 270, ¶ 13, 172 P.3d at 865. "In pursuing this goal, we consider the statute's context; its language, subject matter, and historical background; *1268 its effects and consequences; and its spirit and purpose." Id. (quoting Hayes v. Continental Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994)). Additionally, "we attribute a plain and ordinary meaning to the statutory language to the extent that it does not frustrate the overall legislative intent and purpose of the statute." Id.
II. State and DDD Liability Under APSA
¶ 8 Section 46-455.B imposes civil liability as follows:
An incapacitated or vulnerable adult whose life or health is being or has been endangered or injured by neglect, abuse or exploitation may file an action in superior court against any person or enterprise that has been employed to provide care, that has assumed a legal duty to provide care or that has been appointed by a court to provide care to such incapacitated or vulnerable adult for having caused or permitted such conduct.
The question on appeal is whether the State may be liable under this statutory cause of action.[3] We first look at whether the State "provided care." If we find that it did, we next decide whether the State "assumed a legal duty to provide care" or was "employed to provide care."
A. The State "Provided Care" to Jacob
¶ 9 The Estate contends that by managing, planning, directing, and supervising Jacob's daily care, the State "provided care" under A.R.S. § 46-455.B. The State claims that it did not manage or direct Jacob's care and that AIRES was the caregiver. The State contends that § 46-455.B creates a cause of action only against one that is in a caregiver relationship.
¶ 10 This Court has rejected the claim that there must be a direct caregiver relationship to give rise to liability under A.R.S. § 46-455.B. Corbett v. ManorCare of Am., Inc., 213 Ariz. 618, 629, ¶ 36, 146 P.3d 1027, 1038 (App.2006). In Corbett, we held that it is not necessary that there be a "direct caregiver-patient relationship for liability to arise under APSA." Id. at 628, ¶ 33, 146 P.3d at 1037. As a result, we found that a director of nursing at a care facility could be held liable under the statute. Id. at 629, ¶ 38, 146 P.3d at 1038. In part, the duties of the director of nursing in Corbett included "managing the daily operations of the department of nursing services at the Tucson facility, which included overseeing patient care and staff education, `helping to direct ... the clinical aspects of resident care,' managing the staff, and ensuring that federal and state regulations were followed." Id. In contrast, Corbett held that employees who had never met, spoken to, or had any personal contact with, and had no personal knowledge of the decedent's condition, her care, or her treatment did not "provide care" under the statute. Id. at ¶ 37.
¶ 11 The Estate suggests that the State "provided care" because it: (1) reserved authority to make determinations about Jacob's needs; (2) was required to monitor AIRES's compliance with the Qualified Vendor Agreement; (3) developed an individual service program (ISP)[4] and approved the care plan contained in the ISP; (4) attended all ISP meetings; (5) filled out Jacob's Rights, Health and Safeguards form; and (6) made staffing decisions.
¶ 12 The State asserts that its conduct is not analogous to the nursing supervisor in Corbett. The State claims it is not authorized to direct AIRES in the performance of its duties. It contends it does not "provide care" because it only obtains evaluations, develops goals, provides information about available service, and monitors a facility's *1269 compliance with state standards. See A.R.S. § 36-551.8, 9 (2009) (defining case manager and case management); A.A.C. R6-6-601 (listing duties of case manager).
¶ 13 The State assigned a case manager and assembled the ISP team to recommend and coordinate services for Jacob. See A.R.S. §§ 36-551.8, 9, 26, -560.G (2009). Two DDD employees participated in Jacob's ISP meetings. One was a support coordinator, or case manager. See A.A.C. R6-6-601. The case manager met with Jacob's family, AIRES, and DES to create a services plan. She also prioritized needs. See A.A.C. R6-6-601.2. The State claims Jacob's family and AIRES made decisions about supervision and safety, and that the case manager only carried out responsibilities assigned to her under the ISP. The other employee was a registered nurse who apparently attended one ISP meeting to obtain updated information regarding Jacob's medical condition for DDD. See id.
¶ 14 We hold that creating Jacob's ISP, determining the level of supervision he needed, and ensuring that AIRES followed these requirements constituted "providing care." The case manager did far more than merely put Jacob's mother in contact with AIRES. She met with Jacob's mother and the hands-on caregivers to ensure Jacob was receiving the care the ISP required.[5] The State also decided staffing needs at AIRES and monitored AIRES's compliance with the vendor agreement, which incorporated the ISP. It follows then, that the State was responsible for monitoring AIRES's compliance with the ISP. In other words, the State monitored whether Jacob was receiving the care which it determined he needed.
¶ 15 Our resolution of this close question is guided by the remedial nature of A.R.S. § 46-455 and our obligation to construe such legislation broadly. See In re Estate of Winn, 214 Ariz. 149, 150, ¶ 5, 150 P.3d 236, 237 (2007) (holding that courts shall construe section 46-455, a remedial statute, "broadly to effectuate the legislature's purpose in enacting" it); Ariz. Civil Rights Div., Dep't of Law v. Hughes Air Corp., 139 Ariz. 309, 313, 678 P.2d 494, 498 (App.1983) ("A remedial statute is entitled to liberal construction."). APSA was passed to protect incapacitated and vulnerable adults. Winn, 214 Ariz. at 150, ¶ 5, 150 P.3d at 237. Its intent is to increase the remedies available to such individuals. Id. at 151, ¶ 9, 150 P.3d at 238; see also Estate of McGill v. Albrecht, 203 Ariz. 525, 528, ¶ 6, 57 P.3d 384, 387 (2002); Corbett, 213 Ariz. at 629, ¶ 34, 146 P.3d at 1038; Davis v. Zlatos, 211 Ariz. 519, 524, ¶ 19, 123 P.3d 1156, 1161 (App.2005). Consistent with that intent and our obligation to give remedial statutes a broad interpretation, we hold that, under the facts presented in the summary judgment briefing, the State "provided care."
B. The State "Assumed a Legal Duty" to Provide Care
¶ 16 The Estate contends that the State had a legal duty to provide care to Jacob. The State claims, however, that it did not act voluntarily and, therefore, did not "assume" a legal duty. The State's obligations regarding Jacob were imposed by statute. See A.R.S. §§ 36-551.01, -552.C, -2929.A.
¶ 17 The Estate contends that the plain language of section 46-455.B includes any assumption of care, whether voluntary or compelled by statute. The Estate argues that courts cannot read into APSA a requirement that the legal duty must be voluntarily assumed because the legislature did not include any such limitation. See Morgan v. Carillon Investments, Inc., 207 Ariz. 547, 552, ¶ 24, 88 P.3d 1159, 1164 (App.2004) (declining to interpret statutes to include a limitation period where none was included by the legislature). In drafting § 46-455, the legislature did not articulate that to "assume a *1270 legal duty" requires voluntary action. "[S]tandard principles of statutory construction require that we do not judicially impose a requirement the legislature has intentionally chosen not to require." Hart v. Hart, 220 Ariz. 183, 187, ¶ 17, 204 P.3d 441, 445 (App. 2009). Without such limiting language in the statute, we will not interpret this remedial statute in such a narrow manner. See Winn, 214 Ariz. at 150, ¶ 5, 150 P.3d at 237; Hughes Air Corp., 139 Ariz. at 313, 678 P.2d at 498.
¶ 18 Nevertheless, the State suggests that the word "assume" implies a voluntary nature. In interpreting statutory language, we give words their common meanings. See Snyder v. Tucson Police Pub. Safety Pers. Ret. Sys. Bd., 201 Ariz. 137, 140, ¶ 12, 32 P.3d 420, 423 (App.2001). When a statute does not define a word, as in this case, courts may look to well-respected dictionary definitions. Id. The common definition of "assume" does not support the State's limited interpretation. "Assume" is defined to mean: to take up; to take upon oneself; to place oneself in; to seize; or to take over as one's own. See Merriam-Webster's Online Dictionary, Http://www/merriam-webster.com/ dictionary/assume (last visited June 17, 2010). Based on this definition, we hold one could take up or take on a duty voluntarily or by mandate.
¶ 19 Furthermore, interpreting "assume" to include both voluntary and mandated legal duties comports with the statute's purpose. "By this act the legislature intends to ... [c]reate a civil cause of action for incapacitated adults against persons who have a legal duty to provide care, who are employed to provide care or who have been appointed by a court to provide care." 1989 Ariz. Sess. Laws, ch. 118, § 1 (1st Reg. Sess.) (emphasis added). By listing persons "who have a legal duty to provide care," the legislature necessarily intended to include persons who gained a legal duty to provide care voluntarily or by mandate. Id.
¶ 20 Additionally, interpreting § 46-455 to include a civil remedy against the State is consistent with other legislative mandates applicable to the State. A.R.S. § 36-592.F (2009) (requiring DES to: (1) conduct an annual site visit and (2) monitor each adult developmental home for compliance with department rules at least two times per year); A.R.S. § 36-557.F (2009) (requiring contracts for residential care services to allow the department to monitor for health, safety, contractual and programmatic standards at least every six months); A.R.S. § 36-557.B (requiring contracts for residential care services providers be subject to continuing program evaluation by DES to assure that service providers are in continued compliance with the terms of the contract and DES standards and requirements). If we accepted the State's interpretation, the State could simply contract with private care providers and then avoid any consequences for failing to meet these statutory obligations. However, we believe such a result would conflict with APSA's purpose of increasing the remedies available to vulnerable adults. Winn, 214 Ariz. at 150-51, ¶¶ 5, 9, 150 P.3d at 237-38.
¶ 21 Moreover, A.R.S. § 36-557.E.4 provides that "[a]ll clients enrolled in programs shall have all the same specified rights as they would have if enrolled in a program operated directly by the state."[6] Were we to interpret "assume a legal duty" to apply only when made voluntarily, disabled adults enrolled in state-operated programs would be unable to enforce their APSA rights against the State because the State was technically mandated to provide care to these individuals. See A.R.S. §§ 36-551.01, -552.C, -2929.A. We conclude this interpretation is wholly inconsistent with APSA's purpose and would render § 46-455 meaningless for individuals enrolled in state-operated programs. Accordingly, we reject it.
¶ 22 The State also argues that we must interpret the statute to apply only when one *1271 voluntarily assumes a duty to provide care because "the term `assumed' was originally included to address the situation where persons volunteer to provide care." However, the legislative history cited by the State does not support this position. First, the exchange described in the cited legislative history relates only to the section's "criminal liability" subsection. See Memorandum from Ariz. Senate Research Staff to Members of the Senate Judiciary Committee (Apr. 18, 1988).[7] Second, the legislative history indicates that the legislature amended the language to avoid a situation where someone who volunteers to provide care cannot withdraw from doing so without facing criminal liability. Id. This does not reflect intent to impose civil liability only upon volunteers, but rather evidences intent to narrow only the potential criminal liability of volunteers. We therefore hold that the State assumed a legal duty to provide care.[8]
¶ 23 The dissent discusses the similarity between A.R.S. § 46-455.A and B, the statute's criminal and civil subsections, respectively. The dissent argues that because the legislature borrowed language from the criminal subsection to write the civil subsection that the State's civil liability is precluded. However, the substantive differences between criminal and civil liability adequately distinguish A.R.S. § 46-455.A from B. We have held that the State "assumed a legal duty to provide care." In order for the State to be held criminally liable, it has to be employed to provide care, be a de facto guardian or conservator or has been appointed by the court to provide care for the vulnerable adult. Nothing in this opinion holds that the State was employed to provide care as a de facto guardian or conservator or was appointed by the court to provide care. Therefore, the State could not be held criminally liable under A.R.S. § 46-455.A.
C. APSA Does Not Exempt the State from Liability
¶ 24 APSA specifically exempts physicians, podiatrists, registered nurses and physicians' assistants. See A.R.S. § 46-455.B. The Estate argues that this specific exemption demonstrates the legislature's intent to hold all others, including the State, liable under APSA. See In re Estate of Agans, 196 Ariz. 367, 370, ¶ 16, 998 P.2d 449, 452 (App.1999) (recognizing rule of statutory interpretation that "expression of one or more items in a class generally indicates an intent to exclude all items of the same class that are not expressed"). The Estate argues that the trial court created governmental immunity where none exists in the statute.
¶ 25 The State argues that the legislature intended to exempt it from liability under APSA. The State points to the following language as evidence of the legislative intent that the State be exempt from liability:
A person who files an action under this section shall serve notice and one copy of the pleading on the attorney general.... Service of the notice does not limit or otherwise affect the right of this state to maintain an action under this section or intervene in a pending action nor does it authorize the person to name this state or the attorney general as a party to the action.
A.R.S. § 46-455.J (emphasis added).
¶ 26 This language does not provide the immunity the State suggests. Rather, it indicates that service of notice of an action does not, alone, authorize naming the State *1272 or the attorney general as a party to that action. Where there is some independent legal basis for naming the State or attorney general as a party, we hold that the State may be named as a party. The legislature specifically excluded certain people from liability under the statute. See A.R.S. § 46-455.B. If the intent was also to provide immunity to the State, the legislature could have done so. See Hart, 220 Ariz. at 187, ¶ 17, 204 P.3d at 445; see also Fid. Sec. Life Ins. Co. v. State Dep't of Ins., 191 Ariz. 222, 225, ¶ 7, 954 P.2d 580, 583 (1998) (stating that "liability of public servants is the rule in Arizona and immunity is the exception").
¶ 27 The State next argues that APSA is modeled after racketeering laws and because such laws provide that claims may not be brought against the State, we should interpret APSA in a similar fashion. See A.R.S. § 13-2314.04 (2010). We decline to do so because we have found no reason to believe APSA was modeled after the racketeering laws.
¶ 28 The State argues that the government cannot be civilly liable under racketeering laws because it is not capable of forming criminal intent. A.R.S. § 13-2314.04.A (providing a civil remedy for "[a] person who sustains reasonably foreseeable injury ... by a pattern of racketeering activity"); see, e.g., Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 404 (9th Cir.1991) (holding that civil remedies authorized by the racketeering laws are inapplicable to government entities because they are incapable of forming the criminal intent required for racketeering). However, a civil cause of action under APSA does not require the formation of a criminal intent; rather, it only requires simple negligence. See A.R.S. § 46-455.B; McGill, 203 Ariz. at 530, ¶¶ 15-16, 57 P.3d at 389 (interpreting A.R.S. § 46-455.B to require only a single act of negligence to trigger APSA remedies). The criminal intent requirement of racketeering laws stands in stark contrast to the much lower "negligence" threshold needed for APSA's civil remedy to apply.
¶ 29 Additionally, the State contends that racketeering laws are not applicable to the State because it is not subject to punitive damages. See Anderson v. Dep't of Revenue, 313 Or. 1, 6, 828 P.2d 1001, 1004 (1992) (stating that because RICO damages "are punitive in nature, subjecting the states to liability under RICO would override their common law immunity to punitive damages"). APSA, however, maintains Arizona's common law immunity for punitive damages. See A.R.S. § 46-455.H.4 (authorizing punitive damages "under common law principles that are generally applicable to the award of punitive damages in other civil actions"); compare with A.R.S. § 12-820.04 (2003) (exempting public entities from punitive damages in civil proceedings). We reject the State's claim that we should consider APSA analogous to the criminal racketeering laws because of the substantive differences between the statutes.
¶ 30 The State also contends that any interpretation that applies section 46-455.B to the State results in an absurd situation where the attorney general could end up representing both the plaintiff and the State in an APSA action. The State may file an action on behalf of an injured person. See A.R.S. § 46-455.E. The attorney general, as in this case, may also defend the DDD. See A.R.S. § 41-192.A.1 (Supp.2009) (stating that the attorney general shall be the legal advisor of the State's departments).
¶ 31 We disagree, however, that this will cause absurd results. Section 46-455 allows private enforcement and therefore it is not necessary for the attorney general to represent all injured persons. Furthermore, when the attorney general brings an action on behalf of an injured person and the State or one of its Departments is also a named defendant, the attorney general may employ private attorneys in that particular case. See A.R.S. § 41-191.C (2004).
¶ 32 The State also contends that the reporting requirement in A.R.S. § 46-457 would result in an absurdity if it was required *1273 to report itself for violations of APSA. We reject the State's argument because applying the reporting requirement to the State is consistent with the legislature's intent and comports with public policy.
¶ 33 The State also argues we should adopt its reading of APSA because subjecting the State to liability would expand the statute to produce a result at odds with its purpose. However, the statute was intended to increase the remedies available to incapacitated adults. See McGill, 203 Ariz. at 528, ¶ 6, 57 P.3d at 387. The State correctly notes that the legislature amended section 46-455.B to limit the liability of physicians after the Arizona Supreme Court issued McGill. The State forewarns this Court of adverse consequences if we were to "expand" the scope of section 46-455.B to include the State. The State predicts that adopting the Estate's position will pave the way for lawsuits challenging the State's program decisions. We disagree. Any claimant that sues the State under APSA must establish a compensable injury in order to justify an action. See A.R.S. § 46-455. We are confident that the limitations already written into the statute are sufficient to eliminate baseless suits and that our opinion will not open the floodgates for challenges to program decisions that do not result in abuse or neglect.
¶ 34 The State suggests that it is entitled to immunity for its administrative decisions under A.R.S. § 12-820.01.B.1(d) (2003), and that applying APSA to the State thwarts this "important immunity." Section 12-820.01.A.2 provides absolute immunity to the State for "[t]he exercise of an administrative function involving the determination of fundamental governmental policy." Additionally, "[t]he determination of a fundamental governmental policy involves the exercise of discretion," and includes the determination of whether to provide "governmental services." A.R.S. § 12-820.01.B.1(d) (emphasis added).
¶ 35 We have previously held that this absolute immunity "extends to determinations at a policy-making level rather than an operational level." Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 166, 920 P.2d 41, 46 (App.1996). We reasoned in Schabel that "a decision by the district board to construct a playground at a school and allocate funds for that purpose would be a policy decision protected by immunity. Deciding what specific pieces of equipment to have on the playground ... would be an operational level decision" not entitled to immunity. Id. In this case, the State's decision to provide care to Jacob through a service provider was a determination made at a policy-making level subject to absolute immunity. In contrast, the State's determination of which services AIRES would provide and ensuring that those services were provided was a determination made at an operational level not subject to absolute immunity.
¶ 36 Additionally, we have reasoned that while absolute immunity shields policy determinations, the immunity does not extend to the negligent implementation of those policy determinations. Diaz v. Magma Copper Co., 190 Ariz. 544, 554, 950 P.2d 1165, 1175 (App. 1997). In this case, the Estate did not challenge the State's policy determination to provide care through a service provider; rather, it claimed the State was negligent in ensuring the services contracted for were appropriately provided. In other words, the Estate is alleging the State was negligent in supervising the service provider. Accordingly, the State is not entitled to absolute immunity under A.R.S. § 12-820.01.B.1(d).
CONCLUSION
¶ 37 We reverse the summary judgment in favor of the State and remand for further proceedings consistent with this opinion.
CONCURRING: DONN KESSLER, Judge.
HALL, Judge, dissenting.
¶ 38 The question presented in this appeal is whether the legislature intended that A.R.S. § 46-455(B) apply to the State as an *1274 enterprise "that has assumed a legal duty to provide care."[9] Section 46-455 is part of an extensive statutory scheme that establishes a combination of private and public enforcement to protect and recompense vulnerable adults. See A.R.S. §§ 46-451 to -459. If the majority's conclusion that the State and DDD (and other state agencies or political subdivisions) qualify as enterprises that have assumed a legal duty to provide care is correct, then it would also have to be true that the legislature intended that the State engage in criminal and civil prosecutions that, if successful, would subject the State to liability for compensatory damages and attorneys' fees equal to twice the amount of damages. See A.R.S. § 46-455(H)(4). Because neither the statutory language nor legislative history suggests that the legislature intended such an improbable outcome, I dissent.
¶ 39 The majority's conclusion is premised on its belief that the State and DDD are "enterprise[s] ... that ha[ve] assumed a legal duty to provide care[.]" Section 46-455(B) was enacted in 1989. See 1989 Ariz. Sess. Laws, ch. 118, § 3. This phrasing came from A.R.S. § 46-455(A), the criminal analogue to A.R.S. § 46-455(B), which was enacted in 1988. The intended meaning of this phrase is unclear from its language, and, unlike the majority, I believe there is some benefit to examining the legislative history underlying the passage and subsequent amendment to A.R.S. § 46-455(A). When originally proposed in 1988 as HB 2399, A.R.S. § 46-455(A)[10] provided: "A person who has been employed to provide care, or who has assumed the duty of providing care, or who has been appointed by a court to provide care...." 1988 House Bills Thirty-Eighth Legislature (Sec. Reg. Sess. Vol. 3). Before passage, the bill was amended by insertion of the word "legal" before "duty" to make clear that a volunteer would not be criminally liable unless it was determined that the volunteer had assumed a legal duty to provide care. See Minutes of the Committee on the Judiciary (April 19, 1988); Memorandum to Members of the Senate Judiciary Committee (April 18, 1988). As enacted, A.R.S. § 46-455 provided: "A person who has been employed to provide care, or who has assumed a legal duty to provide care, or who has been appointed by a court to provide care to an incapacitated adult and who causes or permits the life of the adult to be endangered, his health to be injured or to be imperiled by neglect is guilty of a class 1 misdemeanor." 1988 Ariz. Sess. Laws, ch. 85, § 2. In 1989, the legislature took the existing framework of A.R.S. § 46-455(A) and enacted A.R.S. § 46-455(B) to provide vulnerable adults a statutory civil cause of action under the APSA. Then in 1991, the legislature amended A.R.S. § 46-455(A) by substituting the phrase "who is a de facto guardian or de facto conservator" for "who has assumed a legal duty to provide care," but left unchanged A.R.S. § 46-455(B). 1991 Ariz. Sess. Laws, ch. 219, § 6. In sum, there is nothing in the legislative history to suggest that the legislature intended to subject the State or DDD to liability under A.R.S. § 46-455(B) as enterprises[11] that have assumed a duty to provide care.
¶ 40 I agree with the majority that neither the language of the statute nor its legislative history expressly excludes the State as an entity that can be said to have "assumed a legal duty to provide care" under A.R.S. § 46-455(B). But this does not necessarily mean that the legislature intended the State and its political subdivisions to be liable for money damages under the statute. Instead, *1275 I believe the intended scope of that phrase in A.R.S. § 46-455(B) can best be gleaned by examining its intended meaning when inserted as part of the criminal statute one year earlier.
¶ 41 The other two categories of persons subject to both criminal and civil liability consist of those who provide care for incapacitated persons based on a contractual obligation or court order. However, many incapacitated people receive care from family members, friends, or other caretakers on a "voluntary" basis. To fill this gap, HB 2399, as originally proposed, would have imposed criminal liability on any person who assumed a duty to provide care. To distinguish a volunteer whose care is casual or infrequent and who therefore should be allowed to withdraw from providing care without facing criminal liability for "neglect" from one who has assumed an ongoing duty to provide care, the bill was later amended to insert the word "legal" in an imperfect attempt to clarify that a person neither employed nor appointed by court order to provide care could be liable only if that person had nonetheless assumed a legal duty to provide care. Subsequently, as already mentioned, A.R.S. § 46-455(A) was amended by replacing that language with the phrase "who is a de facto guardian or de facto conservator[.]" Clearly, in the criminal version of the vulnerable adult statute, the State was not an entity that could be said to have assumed a legal duty to provide care.
¶ 42 The majority nonetheless asserts that the State and DDD have "assumed," in the sense of taking upon oneself, a legal duty to provide care to vulnerable adults because they are statutorily required through the Arizona Health Care Cost Containment System to provide services to all qualified disabled persons. A.R.S. § 36-2929 (2009); see also A.R.S. § 36-554(A)(1) (2009) (designating DDD as the developmental services authority for the State). Given the historical use of this phrase initially in a criminal context in A.R.S. § 46-455(A), this is not a plausible construction of its intended meaning in A.R.S. § 46-455(B). As originally contemplated by the legislature when inserted in the criminal statute, the concept of assuming a legal duty did not include a statutorily mandated duty. Surely, when it borrowed the phrase from a criminal statute, had the legislature intended to expand its meaning so as to make the State and its agencies liable for damages at the same time it was granting primary enforcement power to the State, it would have clearly stated so.
¶ 43 Finally, the legislative purpose in granting the State authority to institute both criminal and civil proceedings to protect vulnerable adults will be undermined if A.R.S. § 46-455(B) is construed as permitting vulnerable adults to file civil actions against the State and DDD. I would affirm the trial court's grant of summary judgment to the State and DDD.
NOTES
[1] We cite to the current version of the applicable statutes because no revisions material to this opinion have occurred.
[2] The Estate's claims against AIRES are not at issue in this appeal.
[3] The Estate contends that "there is no question" that the State is an "enterprise" as defined by A.R.S. § 46-455.Q. The State does not dispute this basis. Therefore, we do not address this issue.
[4] An ISP is a "written statement of services to be provided to an individual with developmental disabilities including habilitation goals and objectives and determinations as to which services, if any, the client may be assigned." See Arizona Administrative Code (A.A.C.) R6-6-101.40.
[5] The Estate notes the fact that several documents relating to Jacob's care were on DDD letterhead or forms. This indicates some degree of involvement in providing care to Jacob, but we need not solely rely on this evidence in reaching our conclusion.
[6] According to the vendor agreement between the State and AIRES, the State "is responsible for providing community developmental services and supports to over 16,000 Arizonans with developmental disabilities and acute care only or case management only to an additional 5,000 Arizonans with developmental disabilities."
[7] The State's answering brief cited the Minutes of the Senate Judiciary Committee meeting on April 19, 1988. However, those minutes reflect the legislative analyst's conclusion that volunteers are only criminally liable if they undertake a voluntary act and fail to exercise reasonable care in doing so. Minutes of Ariz. Senate Committee on Judiciary on H.B. 2399, 38th Leg., 2d Reg. Sess. (Apr. 19, 1988).
[8] The Estate also claims that the State was "employed" to provide care under § 46-455.B. Based on the facts before us, we cannot say the State was "employed" to provide care under § 46-455.B.
[9] As did the trial court, I would also reject the Estate's alternative claim that it "employed" the State and DDD to provide care for Jacob. Because I believe the legislature did not intend the State to be one of the enterprises included within A.R.S. § 46-455(B), I find it unnecessary to address its remaining arguments.
[10] Enacted as A.R.S. § 46-455 in 1988; reorganized as A.R.S. § 46-455(A) in 1989.
[11] As defined in A.R.S. § 46-455(Q), an enterprise "means any corporation, partnership, association, labor union or other legal entity, or any group of persons associated in fact although not a legal entity, that is involved with providing care to a vulnerable adult." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264053/ | 886 A.2d 470 (2005)
92 Conn.App. 600
Nancy M. BISHOP
v.
ZONING BOARD OF APPEALS OF THE TOWN OF GUILFORD et al.
Planning and Zoning Commission of the Town of Guilford et al.
v.
Zoning Board of Appeals of the Town of Guilford et al.
No. 25827.
Appellate Court of Connecticut.
Argued September 15, 2005.
Decided December 13, 2005.
*471 Thomas E. Crosby, for the appellant (defendant in both cases Louis J. Guerrera).
Jeffrey T. Beatty, for the appellee (plaintiff in the first case).
Priscilla C. Mulvaney, with whom, on the brief, was John K. Knott, Jr., Cheshire, for the appellees (plaintiffs in the second case).
DiPENTIMA, GRUENDEL and WEST, Js.
Opinion
DiPENTIMA, J.
In this consolidated appeal, the defendant Louis J. Guerrera[1] appeals from the judgments of the trial court sustaining the appeal of the plaintiff Nancy M. Bishop from the decision of the zoning board of appeals of the town of Guilford (board) reversing the decision by the zoning enforcement officer to issue to her a certificate of zoning compliance and building permit to construct a house on her property.[2]*472 The defendant contends that the board properly decided that Bishop's lot was erroneously approved as a building lot. Because we conclude that the doctrine of collateral estoppel precludes our review of the defendant's claim,[3] we affirm the judgments of the trial court.
This appeal arises from a dispute over the use of a lot at 64 Trolley Road, located in an R-2 residential zone, in Guilford. The lot was part of a subdivision approved by the planning and zoning commission of the town of Guilford (commission) in 1991. In 1997, Bishop purchased the lot from the defendant. After Bishop acquired the property, she sought to renovate the house by demolishing the existing structure and rebuilding a house in compliance with all zoning requirements. In July, 2001, Bishop filed the requisite application for a coastal site plan review, pursuant to General Statutes §§ 22a-90 through 22a-112.
In December, 2001, after a series of public hearings, the commission approved Bishop's coastal site plan application. The defendant, who owns and resides on the property across the street at 51 Trolley Road, appealed from the commission's decision to the Superior Court, alleging in part that the site plan failed to comply with zoning regulations because the lot at 64 Trolley Road was nonconforming. Guerrera v. Planning & Zoning Commission, Superior Court, judicial district of New Haven, Docket No. 459541, 2003 WL 352871 (January 14, 2003).
In its memorandum of decision, the court in Guerrera dismissed the defendant's appeal, stating that "[the defendant] argues that the approved subdivision lot he conveyed to ... Bishop is a nonconforming lot and that the site plan submitted fails to comply with Guilford's zoning regulations. The site plan map ... contains zoning information, applicable to an R-2 zone. [The defendant] maintains that the lot area is less than the 10,000 square feet required in an R-2 zone and that it is therefore nonconforming. He argues that the lot is subject to vehicular easements totaling 1888 square feet, thus reducing the lot area to 8123 square feet, pursuant to § 273-2B of the Guilford zoning regulations. This argument is not persuasive."[4]*473 (Citation omitted.) The defendant then filed with this court a petition for certification to appeal, which was denied on March 19, 2003.
During the pendency of the Guerrera case, Bishop filed an application for a building permit and certificate of zoning compliance, a requirement for construction. The zoning enforcement officer noted that the application previously had been granted commission approval, subject only to the proper installation of erosion and sedimentation controls as shown on the previously submitted plan. On December 26, 2002, the zoning enforcement officer issued the building permit and certificate of zoning compliance.
On January 13, 2003, the defendant appealed to the board from the issuance of the certificate of zoning compliance, alleging again that Bishop's lot was less than the 10,000 square feet required for an approved building lot due to vehicular easements on the property. The board conducted hearings and rendered its decision on March 26, 2003, ruling that the zoning enforcement officer's issuance of the certificate was contrary to the zoning regulations because the lot did not conform to the size requirements for a building lot. On the basis of that determination, the board, on April 3, 2003, sustained the defendant's appeal.[5]
Bishop then appealed from the board's decision to the Superior Court, as did the commission and the zoning enforcement officer, and the appeals were consolidated for trial. The court concluded that the board's finding was "in direct contravention of a finding by the [commission] and by the Superior Court that the lot size and proposed structure are in compliance with the Guilford zoning regulations. There is nothing in the record to suggest, nor do the parties before the court contend, that any change in lot size, proposed coverage or site plan had occurred between the decision in [Guerrera] and the defendant's appeal to the [board] in this case." The court concluded that the board improperly addressed whether the lot should have been approved as a building lot in overturning the zoning enforcement officer's issuance of the building permit and certificate of zoning compliance. The court also noted that the defendant was collaterally estopped from raising the lot size and lot coverage issue because it had been actually and necessarily decided in Guerrera.
"Whether the court properly applied the doctrine of collateral estoppel is a question of law for which our review is plenary." (Internal quotation marks omitted.) Bouchard v. Sundberg, 80 Conn.App. 180, 187, 834 A.2d 744 (2003). "The fundamental principles underlying the doctrine of collateral estoppel are well established. The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality.... Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.... Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment.... Thus, the issue must have been fully and fairly litigated in the first action.... Collateral estoppel express[es] no more than the fundamental *474 principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest." (Citations omitted; internal quotation marks omitted.) Glaaysz v. Planning & Zoning Commission, 256 Conn. 249, 260, 773 A.2d 300 (2001).
"An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined.... 1 Restatement (Second), Judgments § 27, comment (d) (1982). An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.... If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action." (Emphasis in original; internal quotation marks omitted.) R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001).
To determine whether the doctrine of collateral estoppel applies in this case, therefore, we consider both whether the issue of lot size was fully and fairly litigated in Guerrera, and whether the determination of that issue was necessary to the Guerrera judgment.
In his appeal to the Guerrera court, the defendant alleged and argued that the lot was nonconforming. That court had before it a comprehensive return of record that it was obliged to review because the commission had failed to state reasons and findings for its decision on the site plan application. See 200 Associates, LLC v. Planning & Zoning Commission, 83 Conn.App. 167, 177-78, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004). Specifically, the commission had failed to state whether it complied with the municipal zoning regulations, as required by General Statutes § 22a-106 (d).[6] The court reviewed the record and the applicable Guilford zoning regulations, and determined that substantial evidence existed to support the commission's decision to grant the application. Its determination included a thorough review of the defendant's claims in light of the regulations and evidence in the record. See footnote 3. Thus, we conclude that the issue of lot conformity was fully and fairly litigated in Guerrera.
In these consolidated appeals, the court found that Guerrera "actually and necessarily decided the issue of whether Bishop's lot met the 10,000 foot requirement. Without such a determination that the lot was a size required by the Guilford zoning regulations, that court would have sustained the defendant's appeal." We agree that the Guerrera judgment affirming the commission's site plan approval required a determination of lot conformity. Therefore, we conclude that the determination of the lot size was a necessary predicate to the judgment in Guerrera. Accordingly, the doctrine of collateral estoppel applies to bar our review of the lot conformity issue, from which all issues in the present appeal arise.
The judgments are affirmed.
In this opinion the other judges concurred.
NOTES
[1] Also named as defendants in the trail court were the zoning board of appeals of the town of Guilford and Janice G. Teft, the Guilford town clerk. Only Guerrera has appealed, and we therefore refer to him in this opinion as the defendant.
[2] Additional plaintiffs in this consolidated action were the planning and zoning commission of the town of Guilford and Regina J. Reid, zoning enforcement officer of the town of Guilford. Those plaintiffs submitted a separate brief and appendix adopting Bishop's brief, and further claimed that the court improperly concluded that Reid had no right of appeal from the adverse decision of the board. Those plaintiffs did not file a cross appeal pursuant to Practice Book § 61-8 and, therefore, we do not consider their claim.
[3] In addition to arguing that the court improperly applied the collateral estoppel doctrine, the defendant also argues that the court improperly reversed the decision of the board (1) by substituting its judgment for that of the board and (2) because the grounds for the board's decision were supported reasonably by the record. Because those issues rest on the factual claim that is subject to collateral estoppel, we do not reach them.
[4] The court continued: "The Guilford zoning regulations do not require a variance in order for a lot owner to build upon a [nonconforming] lot which fails to comply with area requirements. The application as presented ... requires no frontage, sideline or setback variances, and the proposed structure meets the height requirements (thirty-five feet) applicable in an R-2 zone. No provision of the zoning regulations requires a reduction, for purposes of lot coverage, of vehicular easements or other rights-of-way. Without the reduction, lot coverage is less than the 15 percent maximum allowable in an R-2 zone.... Since lot coverage requirements impact the density of any development, [to include] areas covered by rights-of-way in the `area of the lot' calculation seems appropriate." (Citations omitted.)
[5] In its final ruling, the board reported that its decision "is based on the fact that [it] believe[d] 64 Trolley Road was erroneously approved as a building lot. The [b]oard does not believe this structure should be expanded. Proper procedure was not followed when the effect of easements were not considered as part of the calculation of lot size."
[6] General Statutes § 22a-106 (d) provides in relevant part: "A municipal board or commission approving, modifying, conditioning or denying a coastal site plan ... shall state in writing the findings and reasons for its action." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264055/ | 238 P.3d 539 (2010)
Louise LAUER and Darrell de Tienne, Respondents,
v.
PIERCE COUNTY; Mike and Shima Garrison and Betty Garrison, Appellants.
No. 38321-7-II.
Court of Appeals of Washington, Division 2.
September 8, 2010.
*541 Gregory Austin Jacoby, Jennifer Anne Irvine Forbes, McGavick Graves PS, Tacoma, WA, for Appellants.
Margaret Yvonne Archer, Attorney at Law, Christine D. Sanders, Gordon Thomas Honeywell LLP, Jill Guernsey, Pierce County Prosecutor's Office, Tacoma, WA, for Respondents.
VAN DEREN, J.
¶ 1 A Pierce County hearing examiner granted Mike and Shima Garrison's application for a fish and wildlife variance, enabling them to proceed with construction of their house within a stream buffer zone on their property. Neighbors, Louise Lauer and Darrell de Tienne (Lauer), filed a petition under the Land Use Petition Act (LUPA)[1] in superior court, which reversed the hearing examiner's decision. The Garrisons ask us to reverse the superior court's decision and remand for reinstatement of the hearing examiner's decision,[2] asserting that the LUPA petition was untimely and that their rights had vested in 2004 when their application was completed, filed with Pierce County (County), and a permit was issued. We hold that the Garrisons' 2004 building application was complete as a matter of law under RCW 36.70B.070(4)(a), vesting their rights under the laws and regulations in effect in 2004. Thus, the hearing examiner did not err, and we affirm the hearing examiner's decision.
FACTS
¶ 2 In December 2002, the Garrisons purchased waterfront property on Henderson Bay in Gig Harbor, Washington. The property contained an open drainage course. In 2003, the Garrisons cleared trees and vegetation from the property until neighbors complained and Pierce County issued a stop work order because the clearing activity was near the drainage course. With the County's supervision and approval, the Garrisons took steps to revegetate the area with native plants.
¶ 3 In March 2004, the Garrisons submitted a building permit application to the County, which granted the permit. The Garrisons *542 began constructing a new residence on the property, but the County issued a stop work order in October 2004 when neighbors complained that the foundation poured for the new house encroached in a stream buffer. The stop work order included a corrective action notice directing the Garrisons to apply for a fish and wildlife variance within 60 days.
¶ 4 The Garrisons appealed the stop work order to a hearing examiner, who denied the administrative appeal on February 4, 2005, and the Garrison's subsequent request for reconsideration on March 18, 2005. The Garrisons filed a LUPA appeal, which settled and resulted in the Garrisons pursuing the fish and wildlife variance presently at issue.
¶ 5 On August 9, 2007, the Garrisons filed an application for a fish and wildlife variance. At the October 24, 2007, variance application hearing, witnesses included Mike Garrison, Louise Lauer, and Darrell de Tienne.
¶ 6 On December 13, 2007, the hearing examiner approved the Garrisons' variance, applying the regulations in effect when the Garrisons filed their building permit application in 2004. On December 21, Lauer filed for reconsideration. On March 4, 2008, the hearing examiner denied Lauer's reconsideration motion.
¶ 7 On March 27, 2008, Lauer filed a LUPA petition in the superior court, seeking review of the hearing examiner's determination. The Garrisons filed a motion to dismiss and strike Lauer's claims, which the superior court denied. The superior court reversed the hearing examiner, holding that the Garrisons' 2004 building permit application was incomplete and did not vest development rights, and remanded to the hearing examiner for consideration of the variance application applying regulations in force in 2007. The Garrisons unsuccessfully moved for reconsideration based on Futurewise v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wash.2d 242, 189 P.3d 161 (2008), which our Supreme Court decided only days before the superior court heard the LUPA appeal.
¶ 8 The Garrisons filed a notice of appeal seeking review of three superior court orders: the order denying the Garrisons' motion to dismiss, the order reversing the hearing examiner's decision in the LUPA appeal, and the order denying the Garrisons' motion for reconsideration. While the appeal was pending, and after briefing had been submitted, we decided Mellish v. Frog Mountain Pet Care, 154 Wash.App. 395, 225 P.3d 439 (2010).[3]
ANALYSIS
I. Standard of review
¶ 9 LUPA governs judicial review of Washington land use decisions. HJS Dev., Inc. v. Pierce County, 148 Wash.2d 451, 467, 61 P.3d 1141 (2003). We review the factual record before the hearing examiner, as the hearing examiner is the local jurisdiction's body or officer for this case with the highest level of authority to make a land use determination. See Pierce County Code (PCC) 1.22.080(A), (B)(1)(i), (s). "All land use decisions of the Examiner ... shall constitute the final decision of the Council and shall be appealable to a court of competent jurisdiction." PCC 1.22.140(C); see also former RCW 36.70C.020(1) (1995); Pinecrest Homeowners Ass'n v. Glen A. Cloninger & Assocs., 151 Wash.2d 279, 288, 87 P.3d 1176 (2004); HJS Dev., Inc., 148 Wash.2d at 468, 61 P.3d 1141; J.L. Storedahl & Sons, 125 Wash.App. at 6, 103 P.3d 802.
¶ 10 Lauer, as the LUPA petitioner, continues to carry the burden of establishing that the hearing examiner erred under at least one of LUPA's six standards of review. See Pinecrest Homeowners Ass'n., 151 Wash.2d at 288, 87 P.3d 1176. These standards are:
(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction *543 of a law by a local jurisdiction with expertise;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts;
(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of the party seeking relief.
Former RCW 36.70C.130(1) (1995). We review questions of law de novo to determine whether the facts and law supported the land use decision. HJS Dev., 148 Wash.2d at 468, 61 P.3d 1141. On review of a superior court's land use decision, we stand in the shoes of the superior court and review the administrative decision on the record before the administrative tribunalnot the superior court recordreviewing the record and the questions of law de novo to determine whether the facts and law support the land use decision. Satsop Valley Homeowners Ass'n, Inc. v. Nw. Rock, Inc., 126 Wash.App. 536, 541, 108 P.3d 1247 (2005).
II. Threshold matters
¶ 11 At the outset, the Garrisons argue two threshold matters and contend that either is dispositive. First, they assert that the Supreme Court's recent Futurewise decision renders Lauer's LUPA petition moot and, therefore, the superior court should have dismissed the petition. Second, they argue that under this court's recent Mellish decision, Lauer's LUPA petition is untimely and dismissal is required. Neither of these arguments is persuasive under the facts of this case.
A. Futurewise
¶ 12 The Garrisons rely on the lead opinion in Futurewise, which determined that "[c]ritical areas within the jurisdiction of the [Shoreline Management Act (SMA) ][4] are governed only by the SMA." Futurewise, 164 Wash.2d at 245, 189 P.3d 161. The Garrisons argue that, since only the SMA governs their shoreline property, the variance requirement under the County's critical areas ordinance, which was adopted under the Growth Management Act (GMA),[5] is inapplicable. See e.g., PCC 18E.10.010. The Garrisons argue that under Futurewise, no GMA buffer requirements apply, no variance is required, and the issue of whether their rights vested in 2004 or 2007 is of no moment.
¶ 13 But the Garrisons' reliance on Futurewise is misplaced. Only four justices signed the lead opinion, with a fifth justice concurring in the result only without issuing an opinion. Such a plurality opinion has "`limited precedential value and is not binding.'" Kailin v. Clallam County, 152 Wash. App. 974, 985, 220 P.3d 222 (2009) (quoting In re Pers. Restraint of Isadore, 151 Wash.2d 294, 302, 88 P.3d 390 (2004)). There being "`no majority agreement as to the rationale for a decision, the holding of the court is the position taken by those concurring on the narrowest grounds.'" Kailin, 152 Wash.App. at 985-86, 220 P.3d 222 (internal quotation marks omitted) (quoting W.R. Grace & Co. v. Dep't of Revenue, 137 Wash.2d 580, 593, 973 P.2d 1011 (1999)). Accordingly, we glean no precedential rule from Futurewise, other than that it reversed the trial court and reinstated the Western Washington Growth Management Hearings Board's decision. See 164 Wash.2d at 248, 189 P.3d 161.
¶ 14 Moreover, apparently in response to Futurewise, the legislature passed Engrossed House Bill, Laws of 2010, chapter 107, effective March 18, 2010, which addressed the 2003 legislation that our Supreme Court interpreted in Futurewise, for the express purpose of "clarifying the integration of shoreline management act policies with the growth management act." Laws of 2010, ch. 107 pmbl. In a new section, the legislature "affirms that development regulations adopted under the growth management act to protect critical areas apply within *544 shorelines of the state as provided in section 2 of this act." Laws of 2010, ch. 107, § 1(2). The act states that its provisions are to take effect immediately, that its purpose is "remedial and curative," and that it applies retroactively to July 27, 2003. Laws of 2010, ch. 107, §§ 5-6. Although the legislature's ability to retroactively modify the law in response to appellate decisions in this instance is not yet decided,[6] the Garrisons' contention based on Futurewisethat only SMA provisions apply to their shoreline property, fails.
B. Mellish
¶ 15 The Garrisons also contend that Mellish is dispositive of Lauer's LUPA appeal. Mellish addressed application of LUPA's strict 21 day filing deadline. See RCW 36.70C.040(2), (3). In Mellish, after the hearing examiner issued his land use decision, the petitioner filed a motion for reconsideration. 154 Wash.App. at 398-99, 225 P.3d 439. After the examiner denied the motion, the petitioner filed his LUPA appeal with the superior court. Mellish, 154 Wash. App. at 399, 225 P.3d 439. As in this case, the LUPA appeal in Mellish was filed within 21 days of the examiner's decision on petitioner's motion for reconsideration, but not within 21 days of the examiner's decision on the land use matter. 154 Wash.App. at 399, 225 P.3d 439. In Mellish, we held that the examiner's land use decision was final, that the subsequently filed motion for reconsideration did not render the examiner's decision not final while the reconsideration motion was pending with the examiner, that a reconsideration motion does not toll the deadline for filing a LUPA appeal, and that the petitioner's LUPA appeal was time barred. 154 Wash.App. at 403-04, 407, 225 P.3d 439.
¶ 16 The Garrisons argue that the same result should apply here.
LUPA's statute of limitations begins to run on the date a land use decision is issued. The statute designates the exact date a land use decision is "issued," based on whether the decision is written, made by ordinance or resolution, or in some other fashion. When a land use decision is written, it is issued either three days after it is mailed or on the date that the local jurisdiction provides notice that the decision is publicly available.
Habitat Watch, 155 Wash.2d at 408, 120 P.3d 56 (citations omitted).
¶ 17 Here, the hearing examiner's written decision was dated December 13, 2007; the decision cover letter stated that it was transmitted to the Garrisons, Lauer, and to other interested persons on that date.[7] Under RCW 36.70C.040(4)(a), the hearing examiner's written decision issued on December 16, 2007, triggered the 21 day LUPA petition filing period. Lauer did not file the LUPA petition until March 27, 2008, more than 100 days after the land use decision issued. Accordingly, Lauer's LUPA petition was time barred. See Mellish, 154 Wash.App. at 407, 225 P.3d 439.
¶ 18 Lauer argues that even if Mellish applies, we should remand for a factual hearing so that the parties can create a record on the issue of equitable tolling. In Mellish, we sua sponte raised the possibility that equitable tolling might apply to a case addressing the LUPA appeal deadline "when justice requires such tolling." 154 Wash.App. at 405, 225 P.3d 439. But Mellish acknowledged that equitable tolling is an extraordinary remedy and declined to apply the doctrine under the facts of the case at issue. 154 Wash.App. at 405-06, 225 P.3d 439.
¶ 19 More recently, in Nickum v. City of Bainbridge Island, 153 Wash.App. 366, 381-82, 223 P.3d 1172 (2009), we rejected a party's assertion that the LUPA deadline may be equitably tolled. "The LUPA deadline controls access to the trial court's jurisdiction *545 over LUPA appeals ... and, thus, cannot be equitably tolled." Nickum, 153 Wash.App. at 381, 223 P.3d 1172. We explained:
RCW 36.70C.040(2) clearly states that "[a] land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served." Although the statute does not use the word "jurisdiction," the legislature's use of the phrases "is barred" and "may not grant review" demonstrate the legislature's intent to prevent a court from considering untimely filings.
Nickum, 153 Wash.App. at 381, 223 P.3d 1172 (alteration in original). See also Keep Watson Cutoff Rural v. Kittitas County, 145 Wash.App. 31, 37-38, 184 P.3d 1278 (2008) (LUPA filing deadlines and service on the proper parties are "jurisdictional requirements"), review denied, 165 Wash.2d 1013, 199 P.3d 410 (2009). Noting that numerous opinions have confirmed that the 21 day LUPA deadline is "absolute," we concluded that LUPA's time-of-filing requirements control access to the superior court's substantive review of any LUPA decision, thus the failure to timely file an appeal prevents court access for such review, and further a party's arguments "urging equitable tolling cannot be considered." Nickum, 153 Wash.App. at 382, 223 P.3d 1172. Consistent with Nickum, we hold that equitable tolling is not available in this case.
¶ 20 Lauer also counters in her supplemental briefing that Mellish is not dispositive because the Garrisons failed to raise an appropriate timeliness issue at the initial hearing in the superior court as RCW 36.70C.080 requires. We agree.
¶ 21 The statute provides that listed defenses including "untimely filing or service of the petition" are "waived" if not raised by a timely motion at an initial hearing on jurisdictional and preliminary matters following the filing of a LUPA appeal. RCW 36.70C.080(3). Here, the Garrisons filed a motion to dismiss Lauer's LUPA petition, citing RCW 36.70C.080 and asserting in part that the petition was untimely. Additionally, they cite to RCW 36.70C.040(2) stating, "LUPA proceedings are `barred' if the Petitioners fail to timely file a petition before this Court." Clerk's Papers at 42. The focus of the Garrisons' timeliness argument, however, was not the filing date of the petition itself. Not having the benefit of Mellish,[8] the Garrisons presented a timeliness argument, based on their contention that Lauer failed to exhaust all administrative remedies and, thus, lacked standing to pursue her LUPA appeal. That is, the Garrisons argued that Lauer failed to challenge the Garrisons' 2004 building permit application or the County's issuance of the Garrisons' 2004 building permit in 2004. Thus, Lauer was barred from arguing in the present matter (i.e., the LUPA appeal of the hearing examiner's 2007 decision granting the Garrisons a fish and wildlife variance) and that the Garrisons' 2004 building permit application was not complete and did not operate to vest their rights in regulations existing in 2004. In other words, the Garrisons argued that Lauer's collateral attack on the 2004 permit was untimely. But this was insufficient to preserve the issue of timeliness regarding the 21 day filing period for appeal of the hearing examiner's 2007 decision approving the Garrisons' fish and wildlife variance. As RCW 36.70C.080(3) requires, any timeliness challenge to a LUPA petition is waived if not raised at the initial hearing following the filing of the LUPA petition. Accordingly, we hold that the Garrisons waived their timeliness challenge to Lauer's LUPA petition by not asserting that specific timeliness challenge at the initial hearing.
III. Merits
¶ 22 In reaching the merits of Lauer's and the Garrisons' claims, we determine that one issue is dispositive: whether the Garrisons' 2004 building permit application was complete by operation of law. We hold that it was.
*546 A. "Completeness" of the 2004 Permit Application
¶ 23 The issue before the hearing examiner was whether the Garrisons' 2007 application for a fish and wildlife variance should be granted. Essential to that decision was a determination regarding which regulations or criteria applied to the 2007 variance application. At the hearing on the variance application, Lauer's attorney contended that the Garrisons' 2004 building permit application contained misrepresentations and, as a result, it was incomplete and the Garrisons' building project was not vested based on the regulations in place in 2004. Accordingly, Lauer argued that the more stringent regulations that were in place in 2007, when the Garrisons filed their variance application, should be applied.
¶ 24 The hearing examiner rejected Lauer's argument, applied the 2004 regulations, and granted the variance with conditions. The hearing examiner's finding on the issue of stream depiction and the allegations that the Garrisons misled the County stated:
Neighboring property owners argued that the Vested Rights Doctrine should not apply in this case because the applicants have unclean hands. It is undisputed that the applicants submitted a building permit application in 2004. It did not acknowledge that a stream existed on the property and that there were associated buffers. This does not mean that they come to this hearing with unclean hands. The variance application would have applied standards in effect at the time of the building permit application whether or not a stream was notated [on] the building permit application or not.
Administrative Record (AR) at 36.
¶ 25 The record suggests an honest variety of viewpoints in 2004 about how the drainage course on the Garrisons' property was to be characterized.[9] Reflecting that state of affairs, the site plan that the Garrisons submitted with the building permit application in 2004 does depict the drainage course traveling through the property and leading to a culvert, clearly labeled on the site plan, in the bulkhead/sea wall near the shoreline. Although the site plan does not expressly label the watercourse as a stream, the depiction of the contoured topography nevertheless shows the path of the watercourse leading to the bayside culvert.
¶ 26 Moreover, the record reflects that the County was aware of the drainage course's existence in 2004, as evidenced by the series of letters from the County to the Garrisons in 2003 regarding the Garrisons' efforts to revegetate the "drainage course." AR at 176. The County's environmental biologist, Scott Sissons, who testified at the hearing, visited the site before the Garrisons submitted the 2004 building permit application. Thus, the *547 record shows that the County was familiar with the site and knew about the drainage course depicted on the site plan when the Garrisons submitted their 2004 building permit application. That the County then granted the permit shows that it accepted the application as complete, with the water course channel as depicted. Thus, based on the record, substantial evidence supports the hearing examiner's determination and he did not err in concluding that the Garrisons' 2004 permit application was complete and that they did not knowingly misrepresent salient features of the site and affirmatively mislead the County.
B. Vesting Following Completeness as a Matter of Law.
¶ 27 Furthermore, RCW 36.70B.070(4)(a) addresses completeness of permit applications, which, in turn, determines the vesting of applicable regulations. As our Supreme Court has explained:
Under [the vested rights] doctrine, developers who file a timely and complete building permit application obtain a vested right to have their application processed according to the zoning and building ordinances in effect at the time of the application. The Washington doctrine protects developers who file a building permit application that (1) is sufficiently complete, (2) complies with existing zoning ordinances and building codes, and (3) is filed during the effective period of the zoning ordinances under which the developer seeks to develop.
West Main Assocs. v. City of Bellevue, 106 Wash.2d 47, 50-51, 720 P.2d 782 (1986).
¶ 28 The common law vested rights doctrine is codified at RCW 19.27.095.[10] This statute "establishes the `date certain' standard for vesting[, which is] the filing date of a [complete] building permit application." Abbey Rd. Group, LLC v. City of Bonney Lake, 167 Wash.2d 242, 260, 218 P.3d 180 (2009). The statute also "leaves to the local authority the determination of when a building permit application is `fully complete[].'" Abbey Rd. Group, 167 Wash.2d at 258, 218 P.3d 180 (alteration in original) (quoting RCW 19.27.095(2)).
¶ 29 As for the "completeness" determination, RCW 36.70B.070 additionally provides in pertinent part:
(1) Within twenty-eight days after receiving a project permit application,[[11]] a local government ... shall mail or provide in person a written determination to the applicant, stating either:
(a) That the application is complete; or
(b) That the application is incomplete and what is necessary to make the application complete.
....
(2) A project permit application is complete for purposes of this section when it meets the procedural submission requirements of the local government and is sufficient for continued processing even though additional information may be required or project modifications may be undertaken subsequently. The determination of completeness shall not preclude the local government from requesting additional information or studies either at the time of the notice of completeness or subsequently if new information is required or substantial changes in the proposed action occur.
....
(4)(a) An application shall be deemed complete under this section if the local government does not provide a written determination to the applicant that the application *548 is incomplete as provided in subsection (1)(b) of this section.
....
¶ 30 Only one published decision addresses RCW 36.70B.070(4)(a). In Schultz v. Snohomish County, 101 Wash.App. 693, 701, 5 P.3d 767 (2000), Division One rejected the argument that a local government's failure to respond to an applicant within the time period noted in subsection (1) results in automatic approval of the application. "RCW 36.70B.070(4)(a) ... directs only that an application `shall be deemed complete' if the government does not provide a written response to the applicant within the relevant time period." Schultz, 101 Wash.App. at 701, 5 P.3d 767. Schultz reiterates the statute's plain language that where a local government in receipt of a building permit application does not provide written notice to the applicant within 28 days that the application is incomplete, the application is deemed complete as a matter of law. Here, there is no indication in the record that the County ever provided such notice to the Garrisons. To the contrary, the County granted their building permit. Accordingly, as a matter of law, the Garrisons' 2004 building permit application was complete in 2004 and vested their rights to application of regulations in effect at that time.
¶ 31 We hold that the Garrisons' 2004 building permit application was complete as a matter of law under RCW 36.70B.070(4)(a), that substantial evidence supports the hearing examiner's decision, and that the decision was not erroneous as a matter of law; thus, the Garrisons are entitled to the fish and wildlife variance, enabling them to proceed with construction of their home.[12] The hearing examiner's opinion is affirmed and reinstated.
We concur: BRIDGEWATER and HUNT, JJ.
NOTES
[1] Chapter 36.70C RCW.
[2] Because we review only the record before the hearing examiner, we review the hearing examiner's decision and not the trial court's decision. J.L. Storedahl & Sons, Inc. v. Cowlitz County, 125 Wash.App. 1, 6, 103 P.3d 802 (2004).
[3] We initially released Mellish on December 15, 2009, but we withdrew it and rereleased it on February 3, 2010, following reconsideration, after allowing both parties to submit supplemental briefing.
[4] Chapter 90.58 RCW.
[5] Chapter 36.70A RCW.
[6] This court recently applied the plurality decision in Futurewise when deciding Kitsap Alliance of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 152 Wash.App. 190, 191, 217 P.3d 365 (2009), remanded, 168 Wash.2d 1031, 231 P.3d 166 (2010). On April 28, 2010, our Supreme Court remanded the case to this court for reconsideration.
[7] The copy of the hearing examiner's decision attached to Lauer's request for reconsideration is stamped (presumably by Lauer's attorney's office) "Received Dec. 14, 2007." Clerk's Papers at 13.
[8] The Mellish court acknowledged that before its decision, reasonable practitioners and litigants may have concluded that filing a reconsideration motion gave them more time to file a LUPA appeal. See 154 Wash.App. at 407, 225 P.3d 439.
[9] The administrative record in the present matter contains a report by the County's Department of Planning and Land Services staff. Attached to that report is the hearing examiner's decision in a prior appeal in which the Garrisons challenged the County's October 2004 stop work order. The report's summary notes in part:
This parcel has a drainage course located in the southwestern portion of the site. This drainage course discharges onto this parcel from the west through a culvert. The drainage course located on the parcels to the west was legally placed into an underground culvert system back in the early 1980s when the property was short platted.... On October 2, 2004, Pierce County Resource Management issued a Correction Notice/Cease and Desist Order and Stop Work Order and suspended Building Permit #383860 for building within a 35-foot stream buffer. The owners appealed this Correction Notice/Cease and Desist Order (AA9-04), and contended that the subject watercourse should not have been on their parcel at all and should have been tightlined to Henderson Bay by the conditions of the previously approved adjacent short plat. The Pierce County Hearings Examiner denied the Administrative Appeal on February 4, 2005 and a Request for Reconsideration was also denied on March 18, 2005.
Therefore, the applicant has now applied for a fish and wildlife variance to allow the existing single-family residential foundation to remain within the 35-foot buffer and to construct a pervious path in accordance with Pierce County Code Title 18E, effective February 2, 1992, under which the building application was vested. The applicant intends to construct a pervious path for purposes of private access to the shoreline. A portion of the path lies within the habitat buffer area. Under the new Critical Areas Regulations Title 18E, known as "Directions" (Effective March 1, 2005) a 65-foot buffer would be required.
AR at 44.
[10] RCW 19.27.095 provides in relevant part:
(1) A valid and fully complete building permit application for a structure, that is permitted under the zoning or other land use control ordinances in effect on the date of the application shall be considered under the building permit ordinance in effect at the time of application, and the zoning or other land use control ordinances in effect on the date of application.
(2) The requirements for a fully completed application shall be defined by local ordinance.
[11] "`[P]roject permit application' means any land use or environmental permit or license required from a local government for a project action, including ... building permits." RCW 36.70B.020(4).
[12] Because this holding is dispositive, we need not reach other issues such as the Garrisons' assertion that Lauer lacked standing to pursue a LUPA appeal or that Lauer was estopped from challenging the Garrisons' vested rights. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264060/ | 479 F.Supp. 1102 (1979)
Ray MARSHALL, Secretary of Labor, United States Department of Labor
v.
WOLLASTON ALLOYS, INC. and Binney Tibbetts, Individually and as Vice President.
Civ. A. No. 79-827-Z.
United States District Court, D. Massachusetts.
November 30, 1979.
*1103 Johanna Harris, U.S. Dept. of Labor, Boston, Mass., for plaintiff.
Robert D. Moran, Washington, D.C., for defendants.
MEMORANDUM OF DECISION
ZOBEL, District Judge.
Plaintiff petitioned, pursuant to 28 U.S.C. § 636(d), for an adjudication of contempt against defendants for an alleged refusal of defendants to comply with an administrative search warrant. Defendants moved to quash the warrant.
Defendants deny the charge of contempt. They contend that they acceded to the search insofar as it was authorized by the warrant, but that certain requests of plaintiff's compliance officers exceeded the express terms of the warrant. They also attack the validity of the warrant on the ground that it was improperly issued upon an insufficient showing of probable cause. As the search exceeded the scope of the warrant and the petition for contempt must therefore be dismissed, I do not reach the issue of probable cause.
The parties do not dispute the essential facts. On April 9, 1979 a United States Magistrate, upon an ex parte application by Patrick J. Catino, an Occupational Safety and Health Administration ("OSHA") compliance officer, issued the warrant in question for "[a]n inspection of the worksite described as Wollaston Alloys, Inc., 205 Wood Road, Braintree, Massachusetts 03184." During the afternoon of April 9, 1979, two OSHA compliance officers presented the warrant to defendant Tibbetts at the worksite. They subsequently entered and inspected the premises. On the following day, in the course of the physical inspection of the workplace, one of the compliance officers asked defendant Tibbetts to absent himself so that she might interview an employee privately. Tibbetts refused and explained that he would not permit any private employee interviews on the premises of defendant Wollaston Alloys. The compliance officers proceeded to other phases of the inspection without conducting private employee interviews. Tibbetts later, on advice of counsel, refused a second request for private interviews; both compliance officers left without completing the inspection and this proceeding ensued.
The warrant describes certain specific inspection activities in which the compliance officer is authorized to engage during the search pursuant to various cited statutory and regulatory provisions and certain Supreme Court cases.[1] Defendants rely on the fact that the warrant did not authorize private employee interviews, and argue that their refusal to allow such interviews cannot, therefore, be contumacious. Private employee interviews, although admittedly not among the specifically described activities, are clearly authorized by the cited statutes and regulations and plaintiff argues that citation of the applicable statutes and regulations sufficiently defines the scope of the search that defendants' refusal to permit the interviews mandates a finding of contempt against them.
In Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Supreme Court held that warrantless OSHA inspections violate the Fourth Amendment safeguards against unreasonable *1104 searches. By imposing a warrant requirement on OSHA inspections, the Court interposed a neutral probable cause finding between OSHA regulatory authorities and OSHA-regulated establishments. Id., at 320, 98 S.Ct. 1816. The Court thereby sought to ensure to such employers one of the "important functions" of a warrant "[to] then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed." Id., at 323, 98 S.Ct. at 1826.
The statutory and regulatory provisions cited in the warrant before me list a variety of inspection activities all of which are permitted, but not required, in the course of an OSHA inspection. Plaintiff argues that the mere reference to such provisions adequately advises owners of the extent to which they may object to the inspection without risking contempt of court. In Marshall v. Pool Offshore Co., 467 F.Supp. 978 (D.C.W.D.La.1979), plaintiff lost an overbreadth challenge to a warrant which at least tracked statutory and regulatory language and refused to find contempt without more specificity. This warrant which merely cites the statutory and regulatory references fails, a fortiori, of specificity.
Moreover, the view which plaintiff expresses in this case mocks the importance of the probable cause analysis required by Barlow's, Inc. "For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that `reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment].' A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources . . . would protect an employer's Fourth Amendment rights." Id., 436 U.S. at 320-321, 98 S.Ct. at 1824-1825 (citation and footnotes omitted). Under plaintiff's view, a magistrate could issue a warrant which, by listing citations generally, would authorize an inspection as broad as the cited authorities allow, notwithstanding a probable cause determination that neutral administrative criteria call for a less extensive search.[2] If the Barlow's probable cause requirement is to have any practical effect, an OSHA warrant must be tailored to the probable cause finding which, under Barlow's, must precede its issuance. See, Marshall v. North American Car Company, 476 F.Supp. 698 (M.D.Pa.1979).
Defendants are entitled to rely on the warrant for notice of the extent to which they are subject to an administrative search and as evidence that probable cause exists to conduct the search activities described in the warrant. To the extent that defendants are charged with refusing to permit private interviews with employees, they are not guilty of contempt of this Court.
Accordingly, plaintiff's petition is dismissed.
NOTES
[1] The warrant reads in pertinent part as follows:
"Pursuant to the Occupational Safety and Health Act, 29 USC Sections 651, 657, 658, 29 CFR Sections 1903.3 and 1903.4 and the decisions of the Supreme Court in Marshall et al v. Barlow's, Inc., [436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305], 1978, as well as in Camara v. Municipal Court, 387 U.S. 523 [, 87 S.Ct. 1727, 18 L.Ed.2d 930] (1967) and See v. Seattle, 387 U.S. 541 [, 87 S.Ct. 1737, 18 L.Ed.2d 943] (1967), you are authorized to enter the above-described premises at reasonable times during ordinary working hours, and to inspect in a reasonable manner and to a reasonable extent, including all pertinent conditions, records, structures, machines, apparatus, devices, equipment and materials therein and to conduct industrial health sampling, pursuant to 29 USC Section 657."
[2] For example, in this case three different kinds of inspection (new inspections, reinspections, and record pickups) are implemented by the general administrative plan governing inspection of defendants' establishment. Establishments subject to inspection are selected for only one of the three kinds of inspection, therefore, probable cause determinations, if made, would vary among the various establishments. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264151/ | 479 F.Supp. 373 (1979)
Derrick Anthony DePASS
v.
The UNITED STATES of America.
Civ. A. No. N-78-2000.
United States District Court, D. Maryland.
October 16, 1979.
As Amended December 19, 1979.
*374 Robert J. Sher and Ronald B. Bergman, Hyattsville, Md., for plaintiff.
Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., for the District of Maryland, John J. Farley III and Emilia M. DeMeo, Trial Attys., Tort Branch, Civil Division, U. S. Dept. of Justice, Washington, D. C., for defendant.
NORTHROP, Chief Judge.
The plaintiff, Derrick Anthony DePass, brought this suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680 and under 42 U.S.C. § 1983. The case concerns the detention of the plaintiff at the Baltimore-Washington International Airport (BWI) on January 6 & 7, 1976 by officers and employees of the United States Immigration and Naturalization Service, the United States Customs Service, the Maryland Aviation Administration, the Maryland Department of Transportation, Eastern Airlines, Inc., and Burns Security, Inc. for the plaintiff's alleged failure to offer satisfactory proof of United States citizenship upon his arrival at BWI from Montego Bay, Jamaica on an Eastern Airlines flight. Plaintiff has asserted claims of false imprisonment and assault and battery against the United States under the FTCA and similar claims against the State of Maryland, Eastern Airlines, and Burns Security under 42 U.S.C. § 1983 and the fourteenth amendment.
By stipulation filed in this Court on March 15, 1979, the plaintiff voluntarily dismissed the United States Immigration and Naturalization Service and the United States Customs Service as defendants; he also reduced his claim of damages against the United States to $25,000 as set forth in his prior administrative claim. In an oral opinion rendered on August 9, 1979, this Court dismissed the suit against the State of Maryland, Eastern Airlines, and Burns Security.
At a hearing on the same date, this Court deferred ruling on the defendant United States' motion to dismiss or, alternatively, motion for summary judgment. This Court directed the United States to provide the Court with an affidavit setting forth the boundaries of the discretion exercised by immigration inspectors, and identifying any objective criteria the inspectors follow in examining claims of United States citizenship similar to that which occurred in the present case. The United States has submitted such an affidavit, and the plaintiff has responded to it. The Court finds the matter ripe for a decision. As an affidavit has been submitted, the matter will be treated as a motion for summary judgment. See Fed.R.Civ.P. 12(b).
The Government contends that the discretionary function exception of the FTCA, 28 U.S.C. § 2680(a), deprives this Court of jurisdiction over the plaintiff's claims of false imprisonment by Immigration Inspector George L. Stump at BWI. The plaintiff contends that the actions of Inspector Stump in detaining him do not fall within the discretionary function exception.
The FTCA represents a limited waiver of the Government's sovereign immunity in tort. One major group of claims excepted from the coverage of the FTCA includes
[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary *375 function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a).
In construing this exception, the Supreme Court has failed to set clear guidelines to determine when this exception applies. See Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). While there is no absolute test to determine when the actions of a governmental official fall within the exception, this Court agrees with the approach of the Fifth Circuit in Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). The Smith court held that any inquiry concerning the applicability of the discretionary function exception must focus on "the nature and quality of the discretion involved in the acts complained of." Id. at 246.
This Court rejects the "planning level-operational level" test offered by the plaintiff. Under this test, discretionary acts of officials at the planning level of government fall within the discretionary function exception while the discretionary acts of officials at the operational level fall outside the exception. The test focuses on the status of the official. The test is an artificial one. As the Sixth Circuit concluded in Downs v. United States, 522 F.2d 990, 997 (6th Cir. 1975), "Congress intended `discretionary functions' to encompass those activities which entail the formulation of governmental policy, whatever the rank of those so engaged." The court in Smith, supra at 246, expressed its dissatisfaction with the planning level-operational level test in the following passage:
Such a distinction is specious. It may be a makeweight in easy cases where of course it is not needed, but in difficult cases it proves to be another example of a distinction "so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation."
The plaintiff in this case was detained by Immigration Inspector Stump, who was not satisfied from the documentation produced by the plaintiff that he was a United States citizen. Plaintiff argues that Inspector Stump was not vested with broad discretion in determining the citizenship of persons passing through BWI immigration facilities. Plaintiff alleges that Inspector Stump's actions in detaining him, therefore, do not fall within the discretionary function exception.
This Court finds that Inspector Stump was authorized to detain the plaintiff at BWI pursuant to federal statutes and regulations. 8 U.S.C. § 1225(a) provides the following:
The inspection, other than the physical and mental examination, of aliens . . seeking admission or readmission to or the privilege of passing through the United States shall be conducted by immigration officers . . .. All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe. . . . The Attorney General and any immigration officer . . . shall have power to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, pass through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service . . .. Any person coming into the United States may be required to state under oath the purpose or purposes for which he comes, the length of time he intends to remain in the United States, whether or not he intends to remain in the United States permanently and, if an alien, whether he intends to become a citizen thereof, and such other items of information as will aid the immigration officer in determining whether he is a national of the United States or an alien and, if the latter, whether he belongs to any of the excluded classes enumerated in section 1182 of this title. The *376 Attorney General and any immigration officer . . . shall have power to require by subpena [sic] the attendance and testimony of witnesses before immigration officers and special inquiry officers and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service, and to that end may invoke the aid of any court of the United States. [emphasis added].
8 C.F.R. § 235.1 reads in pertinent part: (b) U.S. citizens. A person claiming U.S. citizenship must establish that fact to the examining immigration officer's satisfaction. . . . If an applicant for admission fails to satisfy the examining immigration officer that he is a U.S. citizen, he shall thereafter be inspected as an alien.
. . . . .
(d) Qualifications for aliens. The following general qualifications and requirements shall be met by an alien seeking to enter the United States regardless of whether he seeks to enter for permanent, indefinite, or temporary stay, and regardless of the purpose for which he seeks to enter: He shall present whatever documents are required and shall establish to the satisfaction of the immigration officer that he is not subject to exclusion under the immigration laws[,] Executive orders, or Presidential Proclamations and is entitled under immigration laws and this chapter to enter the United States. [emphasis added].
Both 8 U.S.C. § 1225(a) and 8 C.F.R. § 235.1 plainly indicate to this Court that Congress intended that immigration inspectors have broad discretion in determining the citizenship of persons entering the United States. Neither the immigration statutes nor the regulations set forth any concrete tests or standards that an immigration inspector must blindly follow. Instead, the inspector must make an ad hoc, subjective evaluation in each case as to whether the person being examined has submitted sufficient proof of his United States citizenship.
The Government has submitted the affidavit of Marvin Gibson, an Assistant Commissioner for Inspections, Immigration and Naturalization Service. Mr. Gibson is responsible for training relating to the Service's inspection programs, including inspections of passengers arriving at U.S. international airports from ports outside of the United States. As such, he is familiar with the duties and responsibilities of immigration inspectors.
Mr. Gibson states that the nature and extent of questioning of persons entering the United States is at the complete and sole discretion of the immigration inspector. No list of questions has ever been prepared by the Service for this purpose. An inspector may be personally satisfied either by oral statements by the person being examined or by documents submitted by that person, or both. No list of items of conclusive proof of United States citizenship, either oral or documentary, has ever been prepared by the Service for use by immigration inspectors. Indeed, as Mr. Gibson avers,
Even presentation of a United States birth certificate, valid on its face, or a United States passport, valid on its face, does not guarantee admission into the United States because an immigration inspector may determine, through careful questioning, observation, study and judgment, that other circumstances raise doubts as to the bearer's admissibility.
Affidavit of Marvin Gibson at ¶ 7. In short, immigration inspectors are not provided with any guidelines delineating items of conclusive proof of citizenship that must satisfy an inspector that an individual is in fact a United States citizen.
In his opposition to the Government's motion for summary judgment and in his reply to the Gibson affidavit, plaintiff fails to refute the above-described broad discretion vested in immigration inspectors; he merely makes bald allegations that the inspectors *377 do not have broad discretion. This is not enough to defeat the Government's motion for summary judgment. See Fed.R. Civ.P. 56(e).
This is not a case where an official must mechanically follow set, defined guidelines and has no discretion to disregard his own agency's regulations. See, e. g., Griffin v. United States, 500 F.2d 1059, 1064-69 (3d Cir. 1974) (no discretion conferred to disregard mandatory regulatory command); Hoffman v. United States, 398 F.Supp. 530, 533-39 (E.D.Mich.1975) (FAA regulation presented clear standards to be applied to specific fact situations). Instead, this is a case where an official has broad discretion and few constraints in his decision-making. See, e. g., First National Bank in Albuquerque v. United States, 552 F.2d 370, 375-76 (10th Cir. 1977), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1978) (discretionary function exception applies where federal statute phrased in terms of general policy standards to be applied by the agency); Hendry v. United States, 418 F.2d 774, 783 (2d Cir. 1969) (discretionary function exception applies where governing statute or regulation comtemplates that an official will make new rules or ad hoc decisions); Coastwise Packet Co. v. United States, 398 F.2d 77, 79-80 (1st Cir.), cert. denied, 393 U.S. 937, 89 S.Ct. 300, 21 L.Ed.2d 274 (1968) (certification of schooners involving no single known objective standard is "precisely the sort of discretionary function" exempted under § 2680(a)); Gray v. United States, 445 F.Supp. 337, 340-41 (S.D.Tex.1978) (statutory language involving "no particular scientific tests or measuring sticks" is a "direct indicator of the discretionary nature" of agency determinations); In re Air Crash Disaster Near Silver Plume, Colorado, 445 F.Supp. 384, 402 (D.Kan.1977) (discretionary function exception applies where decisions must be made on a case-by-case basis, guided only by statements of agency philosophy). This Court therefore finds that the nature and quality of the discretion involved in Inspector Stump's actions bring his conduct within the discretionary function exception to the FTCA.
Furthermore, important foreign policy and political considerations permeate the Immigration Service's decision whether to admit persons into the United States. As the Supreme Court in Kleindienst v. Mandel, 408 U.S. 753, 765, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972) put it:
[T]he power to exclude aliens is "inherent in sovereignty, necessary for maintaining international relations and defending the country against foreign encroachments and dangers a power to be exercised exclusively by the political branches of government . . .."
Accord, Four Star Aviation, Inc. v. United States, 409 F.2d 292, 295 (5th Cir. 1969) (discretionary function exception of the FTCA applies to decisions involving the exercise of judgment and discretion with respect to a matter involving our international relations and affecting our foreign policy). Despite the ad hoc nature of the inspector's decision, each time an immigration inspector examines someone to determine whether he is a United States citizen, the inspector is in effect setting a policy that affects our international relations and which has social, economic, and political repercussions in this country as well.
The plaintiff argues that summary judgment is inappropriate here because a material fact is in dispute. The allegedly material fact in dispute that plaintiff refers to concerns whether the plaintiff submitted certain documents to Inspector Stump in support of his claim of citizenship. First, as the Government notes in its Reply to Plaintiff's Memorandum in Opposition to the United States' Motion to Dismiss, or, in the alternative, for Summary Judgment, at 8 n. 4, there is a serious question under Fed.R. Civ.P. 36(a) whether the plaintiff is deemed to have admitted this fact in the Government's favor by filing an untimely answer to the Government's Requests for Admissions. Assuming, arguendo, that Rule 36(a) does not prevent the plaintiff from contesting this fact, the Court does not find it material. In light of the broad discretion vested in Inspector Stump to rely on or to ignore whatever documentation he pleased, *378 whether the plaintiff actually did present the documentation to Inspector Stump is not material. As plaintiff himself concedes, the discretionary function exception applies even when an official abuses his discretion. 28 U.S.C. § 2680(a); Scanwell Laboratories, Inc. v. Thomas, 172 U.S.App.D.C. 281, 521 F.2d 941, 948 (D.C.Cir.1975), cert. denied, 425 U.S. 910, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976).
Plaintiff's claims against the United States of false imprisonment and assault and battery by officials of the Maryland Aviation Police and Eastern Airlines are also barred by the FTCA. Under the FTCA, the United States has consented to be sued only for negligence or wrongful acts or omissions "of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b). Neither the Maryland Aviation Police nor Eastern Airlines officials can be deemed to be federal employees. See United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973).
As the claims of the plaintiff against the United States are barred by the FTCA, this Court has no jurisdiction over the plaintiff's complaint. Accordingly, by a separate Order, summary judgment will be entered in the defendant's favor. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264083/ | 479 F.Supp. 134 (1979)
Gwen LANCASTER, on Behalf of Herself and all persons similarly situated, Plaintiffs,
v.
SCRANTON HOUSING AUTHORITY; Paul J. Cusick, Individually and in his capacity as Executive Director of the Scranton Housing Authority; and their Agents, Employees, Successors in Office, and all persons acting in concert or cooperation with them, or at their direction or under their control, Defendants.
Civ. A. No. 77-1030.
United States District Court, M. D. Pennsylvania.
August 29, 1979.
O. Randolph Bragg, Northern Pennsylvania Legal Services, Scranton, Pa., for plaintiffs.
O'Malley, Jordan & Mullaney, Scranton, Pa., for defendants.
MEMORANDUM AND ORDER
CONABOY, District Judge.
This is an action brought under the United States Housing Act of 1937, as amended, *135 42 U.S.C. Section 1437; the regulations promulgated thereunder by the U.S. Department of Housing and Urban Development; 42 U.S.C. Section 1983; and the Fourteenth Amendment to the Constitution. Plaintiff alleges that the Defendant Scranton Housing Authority denied her due process of the law by its actions in connection with its denial of her application for low cost housing. Presently before the Court are Plaintiff's motions for summary judgment and for determination as a class action. Defendants in their Brief have asked for judgment on their behalf. It is the opinion of this Court that there exists no genuine issue of material fact, and therefore this controversy is presently ripe for decision. Fed.R. Civ.P. 56. Accordingly, Plaintiff's Motion for Summary Judgment is denied and judgment is entered for the Defendants.[1]
We will briefly recite the relevant facts of this case, construing them most favorably on behalf of the Plaintiff, and accepting her allegations as true.[2]
Plaintiff resided in the Bangor Heights Project of the Scranton Housing Authority, commencing on June 16, 1971. On September 19, 1975 a District Magistrate entered judgment against the Plaintiff for violations of the terms of her lease, including failure to pay rent, and disruptive, loud and unsanitary conduct.
On March 31, 1977, Plaintiff filed with the Scranton Housing Authority (Authority) an application for admission to low rent housing. Her application was denied because she was a former tenant of Bangor Heights who had once been evicted. On that day, a determination was made in writing and forwarded to the Plaintiff advising her of these facts. On April 7, 1977 Plaintiff requested an informal hearing with the Authority, and a hearing was held on April 15, 1977. Present at the hearing were Plaintiff, her attorney, and the Deputy Executive Director of the Housing Authority. Plaintiff stated at the hearing that a money judgment against her had been dismissed by stipulation of counsel, and she requested admission to the low income housing program. She also testified that she was living in a condemned home, and her financial status mandated that she seek admission to the program. The Housing Authority did not request any evidence of the Plaintiff's rehabilitation, but it did not prevent her in any way from presenting such evidence on her own behalf.
At the conclusion of the hearing Plaintiff was informed that her request would be denied because of her prior eviction from Bangor Heights. She was informed that she was eligible for Section 8 Housing, and after completing an application, she was issued a certificate of eligibility for the program. Written notice of the results of this hearing were not sent personally to the Plaintiff, but on August 16, 1977, after three requests had been made, written notice was sent to Plaintiff's attorney.
Plaintiff now alleges that she was denied due process of the law because (a) she was not provided with a written notice of the results of the hearing, and (b) the Housing Authority did not consider evidence of her rehabilitation with regard to her application for re-admission to low income housing.
It is the opinion of this Court that there is no genuine issue as to any material fact. The preceding facts concerning the eviction, hearing and denial of Plaintiff's claim are not in dispute, nor is the procedure of the Scranton Housing Authority. "It necessarily follows that when the only issues to be decided in the case are issues of law, summary judgment may be granted." Wright & Miller, Federal Practice and Procedure: Civil Section 2725. Nor is the Court limited to granting summary judgment for the moving party. Defendants in their Brief have alleged that the undisputed facts warrant judgment in their favor.
*136 ". . . the grant of summary judgment for the non-moving party clearly is proper if both sides agree that there are no material fact issues and join in the request that the case be decided, for the moving or the non-moving side, on the basis of a motion for judgment made by only one of them." id., § 2720. See also 6 Moore's Federal Practice § 56.12 (2d ed. 1953); Service Personnel, Etc. v. Colteryahn Diary, Inc., 436 F.Supp. 341 (W.D. Pa.1977).
This Court in reviewing the present action will attempt to ascertain whether certain procedural safeguards were afforded the Plaintiff, but it will not "second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients." See Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1163, 25 L.Ed.2d 491 (1969). Indeed the U.S. Housing Act of 1937 clearly states this principle in its declaration of policy.
Section 1437 Declaration of Policy
"It is the policy of the United States to promote the general welfare of the Nation by employing its funds and credit, as provided in this chapter, to assist the several States and their political subdivisions to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income and, consistent with the objectives of this chapter, to vest in local public housing agencies the maximum amount of responsibility in the administration of their housing programs." (emphasis added)
With these standards in mind, we will now examine Plaintiff's Claims. First, Plaintiff alleges that Defendants have denied her due process of the law by not providing her with a written notification of the denial of her request. Section 1437d(c)(3) of Title 42 requires only that the public housing agency provide any applicant determined ineligible for admission with notice of such ineligibility, and with the opportunity for an informal hearing upon request. Section 860.207(a) of Title 24, C.F.R., requires the same, notification and an opportunity for a hearing.
On March 31, 1977, Plaintiff was informed in writing that her application for low income housing had been denied. On April 15, 1977 she was given an informal hearing with the Deputy Executive Director of the Scranton Housing Authority, at which time she was represented by her attorney. There is no allegation that she did not understand the charges against her. At the conclusion of the hearing Plaintiff was informed that the decision of the Authority would stand, she then filled out an application for Section 8 housing, and her lawyer informed the Deputy Executive Director that he would look into the possibility of a challenge to the Authority's action. Again, there is no allegation that Plaintiff did not understand the result of the hearing or the reasons supporting the Authority's decision.
Plaintiff cites the case of Neddo v. Housing Authority of City of Milwaukee, 335 F.Supp. 1397 (E.D.Wis.1971), in support of the proposition that the Housing Authority must follow up its hearing with written notice to the rejected applicants. The Court in Neddo held that the Housing Authority had denied the applicant due process by not granting her any hearing at all. It then went on to establish the standards that should be incorporated into a hearing, and held that a written decision be given to the rejected applicant within a reasonable time after the hearing. We agree with the Neddo Court that the best interests of the applicants may be served by a written explanation of the Housing Authority's decision. However, we do not agree that Neddo stands as authority for the contention that the Plaintiff has been denied due process. It is clear that the Defendants have acted in reliance on 42 U.S.C. Section 1437d(c)(3), and 24 C.F.R. Section 860.207(a), which do not require a written decision following the hearing. It is also undisputed that the Defendants did provide the Plaintiff's attorney with written notice of the Authority's decision, though the notice was four months after the hearing. Finally, there is no allegation *137 that the lack of written notice was injurious in any way to the Plaintiff. She knew of the decision and the reasons for it when she left the hearing on April 15, 1977.
We, therefore, hold today that the Scranton Housing Authority's failure to provide the Plaintiff with written notice of the results of their decision, or its delay in so informing her attorney, has not acted to deprive her of any liberty or property interest without due process of the law.
Plaintiff's second contention is that the Housing Authority denied her due process by failing to consider evidence of her rehabilitation and other criteria in regard to her application for re-admission. The Scranton Housing Authority contends that it made its judgment in full accordance with the criteria established for tenant selection.
With regard to the rejection of an applicant for public housing, 24 C.F.R. Section 860.205(a) sets the required standards:
"Standards for PHA tenant selection criteria
(b) The criteria to be established in relation to avoiding a concentration of families with serious social problems in PHA projects and information to be considered shall be reasonably related to whether the conduct of the applicant in present or prior housing has been such as would not be likely to interfere with other tenants in such a manner as to diminish their enjoyment of the premises by adversely affecting their health, safety or welfare or to affect adversely the physical environment or the financial stability of the project if the applicant were admitted to the project. Relevant information respecting habits or practices may include, but is not limited to:
1. An applicant's past performance in meeting financial obligations, especially rent;
2. A record of disturbance of neighbors, destruction of property, or living or housekeeping habits at prior residences which may adversely affect the health, safety, or welfare of other tenants." (emphasis added)
Defendants have alleged, and counsel to both parties have stipulated, that on September 19, 1975 District Magistrate Robert W. Lewis entered judgment against the Plaintiff for the violation of the terms of her lease, including the failure to pay rent, and disruptive, loud, and unsanitary conduct. On March 31, 1977 Defendants notified Plaintiff that, because of that 1975 eviction, she would not be eligible for their program. This judgment is in full accordance with the standards listed above.
Plaintiff's primary claim with regard to the contents of the hearing is that the Authority failed to consider evidence of her rehabilitation. Section 860.205(d) of Title 24 C.F.R. provides that:
"(d) In the event of the receipt of unfavorable information with respect to any applicant, consideration shall be given to the time, nature, and extent of the applicant's conduct and to factors which might indicate a reasonable probability of favorable future conduct or financial prospects. For example:
(1) Evidence of rehabilitation;
(2) Evidence of the applicant family's participation in or willingness to participate in social service or other appropriate counseling service programs and the availability of such programs;
(3) Evidence of the applicant family's willingness to attempt to increase family income and the availability of training or employment programs in the locality." (emphasis added).
While Plaintiff contends that the burden of soliciting such information is upon the Defendants, they advance no reason, nor do they cite any authority, to support that theory. We point their attention to the language of the regulations. Consideration shall be given to "evidence." The regulations do not say "evidence shall be solicited," they say that it should be "considered." This does not put the burden on the Housing Authority, on the contrary, it squarely puts the burden on the applicant to bring forward evidence for consideration. The undisputed facts show that Plaintiff informed the Authority that she was presently *138 residing in a condemned building, and that her judgment of eviction had been withdrawn. She advanced no evidence on behalf of her rehabilitation, her willingness to participate in social services, or any increase in her income. It is stipulated by counsel that this evidence was not brought forward, and that the Authority did not prevent its being presented.
We cannot agree with Plaintiff's contention that she was denied due process of the law simply because the Housing Authority failed to solicit from her evidence that she was entitled to bring on her own behalf. We read the law to say that evidence of such factors should be considered, not that it should be solicited. Plaintiff was represented by counsel at the hearing, and was presented with the opportunity to present evidence on her own behalf. Finally, we note that the standards outlined above, and promulgated by the Housing Authority, are published and provided to tenants and applicants. We, therefore, cannot hold that the Plaintiff has been denied a property interest without due process of the law.
Our holding today should not indicate any indifference to the serious problems of low income housing such as those faced by the Plaintiff in the present case. We recognize and appreciate the burdens faced by the Plaintiff in securing adequate housing for herself and her family. Nor do we mean to indicate that the Scranton Housing Authority should, or will, be given complete authority to manage its own affairs without any review of its actions by this Court. While we will remain consistent with the Congressional intent of the Housing Act in vesting the maximum amount of responsibility in the Housing Authority, we will recognize our duty to protect individual rights that have been violated by their actions.
With regard to our present Plaintiff, Gwen Lancaster, our holding today does not preclude her from seeking readmission to low income housing in the future. Neither does it preclude her from again seeking redress from the Courts should the Housing Authority fail to consider her application in accordance with the guidelines described herein. Nor does this decision indicate a blanket approval of the procedural actions of the Housing Authority. Indeed, we encourage them to make their appeal process more effective by reasonably providing to any rejected applicant a written explanation of the Authority's decision.
However, strictly deciding the case as it is presented to us, we do find that there is no unresolved issue as to any material fact, and that the Plaintiff Gwen Lancaster has been afforded due process of the law in the denial of her application for housing. Accordingly, Plaintiff's Motion for Summary Judgment is denied, and judgment is entered for the Defendants.
NOTES
[1] Since we find in favor of the Defendants in this action, we do not reach the question of whether Plaintiff may bring this as a class action.
[2] The Court is thus treating Defendant Scranton Housing Authority as the moving party. With regard to presumptions, see 6 Moore's Federal Practice § 56.04(2), at 76 (2d ed. 1953). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264086/ | 479 F.Supp. 761 (1979)
ST. FRANCIS HOSPITAL, INC., Plaintiff,
v.
Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.
Civ. A. No. 78-2484.
United States District Court, District of Columbia.
October 31, 1979.
*762 Geoffrey P. Gitner, Washington, D. C., Robert A. Wilmot, Milwaukee, Wis., for plaintiff.
Edith S. Marshall, Sp. Asst. U. S. Atty., Washington, D. C., for defendant.
MEMORANDUM OPINION
JUNE L. GREEN, District Judge.
Introduction
This matter is before the Court on defendant's motion to dismiss, or in the alternative, for summary judgment, and plaintiff's cross-motion for summary judgment. Upon consideration of these motions, the oppositions filed thereto, the oral arguments of counsel, and the entire record herein, the Court concludes that plaintiff has stated a claim upon which relief can be granted, that there are no genuine issues of material fact and that both motions for summary judgment should be denied in part and granted in part.
The plaintiff, a non-profit corporation, is a 248-bed general, short-term hospital. In accordance with an agreement entered into with the Secretary of Health, Education and Welfare (Secretary) under the provisions of 1866 of the Social Security Act, 42 U.S.C. § 1395 et seq., plaintiff hospital was certified as a participating provider under Title XVIII of the Social Security Act, popularly referred to as "the Medicare program".
At all times material hereto, Joseph Califano, sued in his official capacity, was the Secretary of Health, Education and Welfare. He is consequently the named defendant but has been succeeded by Patricia Harris.
Payment to providers of services under Medicare is commonly carried out by fiscal intermediaries pursuant to contract with the Secretary. At the end of each fiscal year, a provider of services submits a Medicare cost report to its Intermediary showing the costs incurred by it during the fiscal year. As a participating provider of services under the Medicare program, plaintiff submitted bills for the cost reporting period ending December 31, 1975 and was denied reimbursement by its Intermediary, Blue Cross of Wisconsin, for charges stemming from four specific areas. The dispute concerned the following:
*763 a. The Intermediary determined that the Tel Med program (tape recorded messages covering a variety of medical topics available to the general public) was not an educational activity customarily carried on by Medicare providers, but was a community service which was not necessary or proper in maintaining the operations of the hospital.
b. The Intermediary determined that patient telephones were provided for patient convenience since a nurse signalling system is in operation at the hospital and that telephones, therefore, were not an allowable expense.
c. The Intermediary determined that the refinancing of certain loans created excess funds, since the loan proceeds exceeded the amount of the existing debt. The Intermediary found that the interest expense on these excess funds was unnecessary and disallowed it. Further, the Intermediary determined that the excess loan proceeds also created excess funds that were used to fund depreciation. Therefore, interest expense derived from these funds was disallowed.
d. The Intermediary determined that an arbitrary amount of overhead was allocated to nonpaid workers' meals. Therefore, it calculated the overhead based on the percentage of direct cost of these meals divided by total cafeteria costs times the cost centers allocated to the cafeteria.
On February 25, 1977, the Intermediary issued a Notice of Program Reimbursement to the plaintiff for the cost reporting period ending December 31, 1975. Thereafter, pursuant to 42 U.S.C.A. § 1395oo and 42 CFR § 405.1841, plaintiff appealed the denial of reimbursement to the Provider Reimbursement Review Board (PRRB). The PRRB has been established by Congress to adjudicate disputes between the Secretary and providers over reimbursement under the Medicare Act.
On June 14, 1978, a hearing was held before the PRRB. At the hearing, the Intermediary proposed to revise its adjustment and treat one-third of the cost of the meals as an allowable cost. The Intermediary based this formula on the assumption that lay employees eat one meal per day in the plaintiff's cafeteria, and that nonpaid workers eat three meals per day in the cafeteria. Since the cost of meals to lay employees is subsidized as a fringe benefit, and since the nonpaid workers are required to be treated on an equal basis with the regular employees, it was found that the nonpaid workers would receive the proper amount if one-third of their meal costs are treated as allowable for Medicare reimbursement.
On August 29, 1978, the PRRB rendered a decision holding that pursuant to the Medicare Act and regulations: (1) the plaintiff's cost of operating a health information service is a public relations expense directly or indirectly related to patient care; (2) a portion of the cost of telephones in patient rooms in excess of the per call charge is not an allowable cost; (3) the amount of a loan in excess of the amount needed to refinance existing debt was not necessary; (4) the cost of sisters' meals as a component of sisters' maintenance is more than the cost of equivalent fringe benefits of other employees.
On October 27, 1978, the Secretary, through the Health Care Financing Administration, reviewed the decision of the PRRB and affirmed the PRRB on all issues except that pertaining to the cost of the plaintiff's health information service, which it reversed. The plaintiff received notice of the PRRB decision on November 6, 1978. It is the final decision by the Secretary which is challenged in this action.
Discussion
Jurisdiction of the Court in this matter is limited to a review of the administrative record and final decision to determine whether upon review of the record as a whole, the decision of the Secretary is supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Court has found no pertinent judicial precedent *764 regarding the issues presented in this action, nor are they addressed specifically in the statute.
A. The Tel-Med Program
The first issue in this case is whether the operating cost of plaintiff's Tel-Med system of recorded health messages is an allowable expense within scope of the Medicare program. Plaintiff argues that it is an allowable public relations expense.
The Court disagrees. 42 CFR § 405.451(a), promulgated pursuant to the Medicare Act, in pertinent part provides:
Principle. All payments to providers of services must be . . . related to the care of beneficiaries.
Similarly, the Provider Reimbursement Manual, prepared by the Secretary for the purpose of explaining the statute and regulations, provides for public relations expenses in Section 2136. It states that the allowability of advertising costs "depends on whether they are reasonable, appropriate and helpful in developing, maintaining and furnishing covered services to Medicare beneficiaries by providers of services." (Emphasis by the Court). The use of the Tel-Med system was not restricted to the plaintiff's patients; it was available to the community at large. The Court concludes, therefore, that the use of the system was for rendering community health services and was not related to the care of the beneficiaries within the meaning of the above regulatory scheme. The Court accordingly affirms the decision of the Secretary.
B. Telephone Service
The second issue in this case is whether the entire portion of the cost of telephones in patients' rooms in excess of the per call cost is an allowable expense, as argued by plaintiff.
The Medicare Act excludes reimbursement for items or services "which constitute personal comfort items." 42 U.S.C. § 1395y(a)(6). 42 CFR § 405.301(j) specifically enumerates telephone service as an example of a non-reimbursable, personal comfort expense. The Court notes the operation of a nurse-signalling system in plaintiff-hospital and concludes, therefore, that the telephones were provided for the patients' personal comfort. They are accordingly excluded from coverage under the Act, and the Secretary's decision is affirmed.
C. Interest Expense
The third issue in this case is whether to disallow the interest expense on loans taken to refinance existing debt. These loan proceeds exceeded the amount of the existing debt. The Court finds, therefore, that the refinancing of this debt created excess funds. 42 CFR § 405.419(a) states in pertinent part:
Principle. Necessary and proper interest on both current and capital indebtedness is an allowable cost . . ..
However, 42 CFR § 405.419(b)(2) further provides in part:
. . . Loans which result in excess funds or investments would not be considered necessary.
The Court concludes that the interest expense incurred in connection with the excess funds herein was unnecessary and nonallowable for Medicare reimbursement, and the decision of the Secretary is affirmed.
D. Cost of Sisters' Maintenance
The fourth issue in this case is whether the method adopted by the Secretary for allocating overhead to "Sisters' Maintenance" is proper. This dispute stems from the fact that the plaintiff as a church-related hospital, employs nonpaid workers. Plaintiff includes the value of the Sisters' services in its cost report because it makes a payment to their affiliate religious organization for the value of these services. The payment, however, is reduced by the amount the plaintiff incurs to support the nonpaid workers. This amount is referred to as nonpaid workers' maintenance. Plaintiff disagrees with the amount of administrative expenses that were allocated to this cost center.
*765 The specific item of maintenance before the Court is the cost of Sisters' meals. Plaintiff offers meals at reduced cost to all employees as a fringe benefit. It was found below that plaintiff presented arbitrary estimates of the overhead associated with the Sisters' meals. Plaintiff's estimates were disallowed, therefore, pursuant to 42 CFR § 405.424(a), which, in discussing the value of services of nonpaid workers, states in pertinent part:
The amounts allowed are not to exceed those paid others for similar work. Such amounts must be identifiable in the records of the institutions as a legal obligation for operating expenses.
Because of the dearth of accurate records for the year 1975 on this issue, defendant's calculation rests on the assumption that all employees at the hospital except the Sisters avail themselves of the fringe benefit to the extent of one meal per day. Defendant further assumes that all of the Sister-employees consume three meals per day at the hospital. Accordingly, defendant treated one-third of the cost of Sisters' meals as an allowable cost.
At the hearing held October 26, 1979, plaintiff presented ample evidence refuting these unsupported assumptions. Plaintiff offered estimates for the year 1975 which were extrapolated from different years when conditions were similar but when more precise figures were obtainable. Based on the evidence presented at the hearing, the Court concludes that the determination reached below is arbitrary and capricious, not supported by substantial evidence, and must be vacated. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Greater accuracy would be achieved if paid employees are considered to have eaten two meals per day and the Sisters 2.33 meals per day.
Finally, plaintiff objects to the inclusion of certain other costs in defendant's calculation of the total expense of Sisters' meals. No evidence on this issue was presented at the October 26, 1979 hearing. The Court concludes that for purposes of calculating the total cost, the Sisters should be treated comparably to the paid employees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340009/ | 377 S.C. 355 (2008)
660 S.E.2d 264
The FOOTHILLS BREWING CONCERN, INC., 4MB, Inc., Greenville Wings, Inc., Addy's, Inc., City Tavern, Inc., Greenville 0036, LLC, Euphoria, LLC, WTK, Inc., Drumcliff Abbey, Inc., and Club Management, LLC, Respondents.
v.
The CITY OF GREENVILLE, Appellant.
No. 26467.
Supreme Court of South Carolina.
Heard January 9, 2008.
Decided March 31, 2008.
Rehearing Denied May 7, 2008.
*358 Ronald W. McKinney, of Greenville, for appellant.
Randall Scott Hiller, of Greenville, for respondent.
Justice WALLER.
In this direct appeal, the trial court ruled that a municipal ordinance banning smoking in bars and restaurants is preempted by State law and violates the State Constitution. The City of Greenville (the City) appeals from the trial court's order. We reverse.
*359 FACTS
In 1987, the City was the first municipality in South Carolina to pass an ordinance regulating smoking in public places. The 1987 ordinance applied to such areas as governmentowned buildings, theaters, and office buildings. However, the 1987 ordinance exempted bars, and for restaurants, it authorized designated smoking areas.
In 1990, the Legislature enacted the Clean Indoor Air Act of 1990. See S.C.Code Ann. § 44-95-10 et seq. (2002). The Clean Indoor Air Act provides that it is "unlawful for a person to smoke or possess lighted smoking material in any form" in various public indoor areas such as: (1) public schools; (2) daycare centers; (3) health care facilities; (4) government buildings; (5) elevators; (6) public transportation vehicles; and (7) public performing art centers. See § 44-95-20.[1] A violation of the Clean Indoor Air Act constitutes a misdemeanor, and upon conviction, the violator "must be fined not less than ten dollars nor more than twenty-five dollars." § 44-95-50.
Because of the reported dangers of second-hand smoke, the City sought to more comprehensively regulate smoking in public places. Therefore, on October 30, 2006, the City enacted Ordinance No. 2006-91 (the Ordinance). In the "Findings and Determinations" section of the Ordinance, the City stated as follows:
Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing second hand smoke ... is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory disease, and lung cancer....
The City recognizes that smoke creates a danger to the health and safety of the public at large and that, in order to protect the health and welfare of the public, it is necessary *360 to restrict smoking in the manner provided for in this ordnance.
The Ordinance prohibits smoking in: (1) all enclosed public places, including bars and restaurants; (2) places of employment; and (3) certain outdoor areas, such as stadiums and zoos.
The section of the Ordinance governing violations and penalties states as follows, in pertinent part:
A. A person who smokes in an area where smoking is prohibited by the provisions of this Ordinance shall be guilty of an infraction, punishable by a fine....
B. A person who owns, manages, operates, or otherwise controls a public place or place of employment and who fails to comply with the provisions of this Ordinance shall be guilty of an infraction, punishable by [a fine].
...
D. Violation of this Ordinance is hereby declared to be a public nuisance.
(Emphasis added).
Respondents all own and operate restaurants and/or bars in the City. In December 2006, respondents filed a declaratory judgment action contending the Ordinance was invalid and seeking injunctive relief. The trial court denied respondents' requests for a temporary restraining order and a preliminary injunction. The Ordinance went into effect at noon on January 1, 2007. On March 8, 2007, however, the trial court issued an order declaring the Ordinance was both unconstitutional and preempted by State law. Consequently, the trial court permanently enjoined the City from enforcing the Ordinance.
ISSUE
Did the trial court err in ruling that the Ordinance is preempted by State law and violates the South Carolina Constitution?
DISCUSSION
The City argues the Ordinance is not preempted by State law and is consistent with both the Constitution and the general law of the State. We agree.
*361 A two-step process is used to determine whether a local ordinance is valid. Denene, Inc. v. City of Charleston, 352 S.C. 208, 212, 574 S.E.2d 196, 198 (2002); Bugsy's v. City of Myrtle Beach, 340 S.C. 87, 93, 530 S.E.2d 890, 893 (2000). First, the Court must consider whether the municipality had the power to enact the ordinance. If the State has preempted a particular area of legislation, a municipality lacks power to regulate the field, and the ordinance is invalid. Id. If, however, the municipality had the power to enact the ordinance, the Court must then determine whether the ordinance is consistent with the Constitution and the general law of the State.
Id.
To preempt an entire field, "an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way." Bugsy's, 340 S.C. at 94, 530 S.E.2d at 893 (citing Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 397 S.E.2d 662 (1990)). Furthermore, "for there to be a conflict between a state statute and a municipal ordinance `both must contain either express or implied conditions which are inconsistent or irreconcilable with each other.... If either is silent where the other speaks, there can be no conflict between them. Where no conflict exists, both laws stand.'" Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. at 553, 397 S.E.2d at 664 (quoting McAbee v. Southern Rwy., Co., 166 S.C. 166, 169-70, 164 S.E. 444, 445 (1932)).
In the instant case, the trial court found that a 1996 legislative actAct 445expressly preempts the Ordinance. We find no preemption.
Act 445 accomplished two separate objectives: (1) it amended section 44-95-20 of the Clean Indoor Air Act;[2] and (2) it amended and added statutes related to the distribution of tobacco products to minors. See S.C.Code Ann. §§ 16-17-500 thru XX-XX-XXX (2003).
Section 16-17-500 is a criminal statute which makes it a misdemeanor for anyone to sell or give a tobacco product to a *362 minor. Section 3 of Act 445 amended this section by revising the penalties for the offense. Section 2 of Act 445 added sections 16-17-501, 16-17-502, 16-17-503, and 16-17-504 to the Code. Section 16-17-501 provides definitions relating to the distribution of tobacco products; section 16-17-502 makes it unlawful to distribute a tobacco sample to a minor; and section 16-17-503 provides for enforcement and federal reporting.
Section 16-17-504, entitled "Implementation; local laws," provides as follows:
(A) Sections 16-17-500, 16-17-502, and 16-17-503 must be implemented in an equitable and uniform manner throughout the State and enforced to ensure the eligibility for and receipt of federal funds or grants the State receives or may receive relating to the sections. Any laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation. Nothing herein shall affect the right of any person having ownership or otherwise controlling private property to allow or prohibit the use of tobacco products on such property.
(B) Smoking ordinances in effect before the effective date of this act are exempt from the requirements of subsection (A).
§ 16-17-504 (emphasis added).
The trial court found that the second sentence of section 16-17-504(A) (emphasized above) applies not only to the statutory sections regarding the furnishing of tobacco to minors, but also applies to the Clean Indoor Air Act. The trial court therefore determined that this portion of section 16-17-504(A) expressly preempts local ordinances such as the Ordinance passed by the City in 2006. The trial court concluded that by "including the second sentence in section 16-17-504(A), the General Assembly intended to prohibit local government from imposing any restriction on indoor smoking beyond the restrictions contained in the Clean Indoor Air Act."
The City contends that the sections of Act 445 dealing with the distribution of tobacco products to minors were intended to address prerequisites set by the federal government in order to be eligible for certain grant funds. See, e.g., § 16-17-503 (specifically referencing compliance with the federal *363 Public Health Service Act, 42 U.S.C. § 300x-26). Because of the limited focus and purpose of these statutes, the City argues the trial court erred by essentially exporting a portion of section 16-17-504 over to the Clean Indoor Air Act. We agree with the City.
The primary rule of statutory construction is to ascertain and effectuate the intent of the Legislature. E.g., Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). When construing statutory language, the statute must be read as a whole, and sections which are part of the same general statutory law must be construed together and each one given effect. Denene, 352 S.C. at 212, 574 S.E.2d at 198; TNS Mills, Inc. v. South Carolina Dep't of Revenue, 331 S.C. 611, 503 S.E.2d 471 (1998). Moreover, "[a] statute should not be construed by concentrating on an isolated phrase." South Carolina State Ports Auth. v. Jasper County, 368 S.C. 388, 398, 629 S.E.2d 624, 629 (2006). Finally, the Court must presume the Legislature did not intend a futile act, but rather intended its statutes to accomplish something. Denene, supra.
We find the trial court erred when it isolated a phrase from section 16-17-504 and interpreted it in such a way as to accomplish preemption under the Clean Indoor Air Act. See South Carolina State Ports Auth., supra (statute should not be construed by concentrating on an isolated phrase). While sections which are part of the same general statutory law must be construed together and each one given effect, see Denene, supra, this is easily accomplished by looking at the plain language in section 16-17-504 and applying it only to sections 16-17-500, 16-17-502, and 16-17-503. To apply section 16-17-504 more broadly than that would effectively change the meaning of an unambiguous statute, which we refuse to do. See Hodges v. Rainey, 341 S.C. at 85, 533 S.E.2d at 581 ("Under the plain meaning rule, it is not the court's place to change the meaning of a clear and unambiguous statute.").
In other words, it is patent that the language regarding "ordinances" found in section 16-17-504 is intended to relate specifically to the distribution of "tobacco products" to minors, and not to the regulation of indoor smoking. Hodges v. *364 Rainey, supra (the cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature). Merely because section 16-17-504 was added to the Code in the same piece of legislation which amended the Clean Indoor Air Act does not require that this section's language about local laws be interpreted as part of the Clean Indoor Air Act.
Accordingly, the trial court erred in deciding that Act 445 expressly preempts the Ordinance.
Moreover, we note the Clean Indoor Air Act did not preempt the entire field of indoor smoking. There simply is no expressly stated intent in the statute that the State chose to exclusively regulate the subject of indoor smoking. See Bugsy's, 340 S.C. at 94, 530 S.E.2d at 893 (to accomplish field preemption, "an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way").[3]
Because Act 445 and the Clean Indoor Air Act itself do not preempt the City from legislating in this area, we find the City had the power to enact the Ordinance. Thus, the Ordinance survives step one of the analysis. See Denene, supra; Bugsy's, supra. Next, under step two, we must determine whether the Ordinance is consistent with the Constitution and the general law of the State. Id.
The trial court found the Ordinance violated Article VIII, section 14 of the South Carolina Constitution. Specifically, the trial court stated that because a violation of the Clean Indoor Air Act constitutes a misdemeanor punishable by a fine, and the Ordinance provides for a fine for smoking in *365 areas not prohibited by the State law, the City unconstitutionally "criminalized conduct that is not illegal under State criminal laws governing the same subject." Because we find the Ordinance does not criminalize conduct, we hold it does not run afoul of Article VIII, section 14 of the Constitution.
Although Article VIII deals generally with the creation of local government, Article VIII, section 14 limits certain powers of local governments. See City of North Charleston v. Harper, 306 S.C. 153, 155-56, 410 S.E.2d 569, 570 (1991). Section 14 provides, in pertinent part: "In enacting provisions required or authorized by this article, general law provisions applicable to the following matters shall not be set aside: ... (5) criminal laws and the penalties and sanctions for the transgression thereof." S.C. Const., art. VIII, § 14.
We have observed that this subsection of the Constitution requires "statewide uniformity" regarding the criminal law of this State, and therefore, "local governments may not criminalize conduct that is legal under a statewide criminal law." Martin v. Condon, 324 S.C. 183, 478 S.E.2d 272, 274 (1996) (emphasis added); accord Connor v. Town of Hilton Head Island, 314 S.C. 251, 442 S.E.2d 608 (1994) (where the Court held that a municipality cannot criminalize nude dancing when State law does not).
While the Ordinance in this case does make smoking in certain areas "unlawful" where the Clean Indoor Air Act does not, it is our opinion the Ordinance does not criminalize such behavior. Instead, the Ordinance states that a violation constitutes "an infraction." "Infraction" is defined as:
A breach, violation, or infringement; as of a law, a contract, a right or a duty. A violation of a statute for which the only sentence authorized is a fine and which violation is expressly designated as an infraction.
Black's Law Dictionary 537 (6th ed.1992).
Put simply, the plain language of the Ordinance is noncriminal in nature. This contrasts with the Clean Indoor Air Act's "misdemeanor" language which clearly indicates that a violation of the State law is considered a criminal offense.
Citing Connor v. Town of Hilton Head Island, supra, respondents argue this Court has held that a local ordinance *366 cannot make an activity illegal when it is otherwise legal under State law. They contend that based on this holding, the Ordinance must be struck down. In Connor, we stated that Article VIII, section 14 "prohibit[s] a municipality from proscribing conduct that is not unlawful under State criminal laws governing the same subject." 314 S.C. at 254, 442 S.E.2d at 609. It was clear, however, that the local ordinance at issue in Connor, which prohibited nude or semi-nude dancing, criminalized such conduct. In support of our holding, we stated as follows: "Since Town has criminalized conduct that is not unlawful under relevant State law, we conclude Town exceeded its power in enacting the ordinance in question." Id. at 254, 442 S.E.2d at 610.
In the instant case, however, where the violation of the Ordinance constitutes an infraction or a public nuisance, the conclusion is inescapable that the City does not seek to criminalize any conduct. As such, the Ordinance does not "set aside" the criminal laws of this State. Accordingly, we find trial court erred in finding that the Ordinance violates Article VIII, section 14 of the South Carolina Constitution.
Finally, we hold the Ordinance is consistent with the Constitution and the general law of the State.
South Carolina law provides that each municipality of this State may enact:
regulations, resolutions, and ordinances, not inconsistent with the Constitution and general law of this State, including the exercise of powers in relation to roads, streets, markets, law enforcement, health, and order in the municipality or respecting any subject which appears to it necessary and proper for the security, general welfare, and convenience of the municipality or for preserving health, peace, order, and good government in it."
S.C.Code Ann. § 5-7-30 (2004). Under the State Constitution, "all laws concerning local government shall be liberally construed in their favor." S.C. Const. art. VIII, § 17. "A municipal ordinance is a legislative enactment and is presumed to be constitutional." Sunset Cay, LLC v. City of Folly Beach, 357 S.C. 414, 425, 593 S.E.2d 462, 467 (2004). Furthermore, "[a]s a general rule, `additional regulation to that of *367 State law does not constitute a conflict therewith.'" Denene, 352 S.C. at 214, 574 S.E.2d at 199 (citation omitted).
The City claims that the Ordinance is a proper exercise of municipal power because it seeks to protect citizens from second-hand smoke. See § 5-7-30 (municipality may enact ordinance which promotes general welfare and preserves health). We agree.
In Denene, this Court found that a local ordinance which prohibited commercial establishments that allow alcohol consumption from operating between the hours of 2 a.m. and 6 a.m. on Mondays through Saturdays did not conflict with State law which prohibited the sale of alcohol between twelve o'clock Saturday night and sunrise Monday morning. The Denene Court held that because the local ordinance was "neither inconsistent nor irreconcilable" with the State statute, it was a proper and valid exercise of the city's police power. Denene, 352 S.C. at 215, 574 S.E.2d at 199.
The situation in the instant case is akin to that in Denene. While the State has legislated restrictions on smoking in certain areas, a civil ordinance which adds areas does not in any way conflict with the State law. "Mere differences in detail do not render [statutes] conflicting. If either is silent where the other speaks, there can be no conflict between them. Where no conflict exists, both laws stand." Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. at 553, 397 S.E.2d at 664 (internal quotes and citation omitted).
Thus, it is our opinion that the Ordinance is consistent with the Constitution and the general law of the State.
CONCLUSION
For the reasons discussed above, we hold the Ordinance passed by the City is valid and enforceable. Therefore, we reverse the trial court's order.
REVERSED.
TOAL, C.J., MOORE, PLEICONES and BEATTY, JJ., concur.
NOTES
[1] Some exceptions are allowed under the Clean Indoor Air Act such as designated smoking areas in employee break areas and private offices. See § 44-95-20. Furthermore, the statute expressly permits certain expansions in the delineated categories; for example, the statute does not prohibit: (1) school districts from providing for a smoke-free campus; or (2) health care facilities from being smoke-free. Id.
[2] According to the title of Act 445, the amendment to the Clean Indoor Air Act was "to revise the areas in which a person may smoke in public schools and provide that local school boards may make school district facilities smoke free."
[3] We are aware that several opinions of the Attorney General have come to a different conclusion, and respondents urge us to adopt the Attorney General's view of this issue. See Op. S.C. Att'y Gen., 2007 WL 1651346 (May 1, 2007); Op. S.C. Att'y Gen., 2006 WL 269614 (Jan. 26, 2006); 1990 Op. S.C. Att'y Gen. 196 (1990). The 1990 opinion reviewed whether the Clean Indoor Air Act preempted localities from further regulating smoking and found that "local political subdivisions would be prohibited, at least implicitly, from further regulation of smoking in public indoor places." (emphasis added). Under this Court's law, however, preemption must be explicit, not implicit. Bugsy's, supra. Furthermore, we note this Court is not bound by opinions of the Attorney General. Eargle v. Horry County, 344 S.C. 449, 455, 545 S.E.2d 276, 280 (2001). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340021/ | 377 S.C. 396 (2008)
660 S.E.2d 512
Clarence D. SPEAKS, Jr., Respondent
v.
STATE of South Carolina, Petitioner.
No. 26469.
Supreme Court of South Carolina.
Submitted February 21, 2008.
Decided April 14, 2008.
*397 Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Karen C. Ratigan, all of Columbia, for Petitioner.
Deputy Chief Attorney Wanda H. Carter, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Respondent.
ON WRIT OF CERTIORARI
Chief Justice TOAL:
In this case, the post-conviction relief (PCR) court found trial counsel ineffective for failing to request an identification instruction at trial, and therefore, granted Respondent Clarence Speaks relief. This Court granted the State's petition for a writ of certiorari, and we reverse the PCR court's decision.
FACTUAL/PROCEDURAL BACKGROUND
A grand jury indicted Respondent for assault and battery with intent to kill (ABWIK) and first-degree burglary following an incident where four people allegedly entered Belinda Sullivan's apartment and assaulted her boyfriend, Patrick Brock. At trial, Belinda testified that around 2:30 a.m., she heard a knock and cracked open the door to see Mark Jefferies, her ex-boyfriend, along with Respondent, Respondent's mother, Bonnie, and Respondent's sister, Angel. Belinda testified that Respondent, Bonnie, and Angel were Mark's cousins and that she knew them through her previous relationship with Mark. Belinda testified that all four individuals forced their way into her apartment, asked her why she let Patrick attack Mark,[1] and then proceeded upstairs to the *398 bedroom where Patrick was sleeping. Belinda testified that once in the bedroom, Respondent began striking Patrick and eventually threw a television on Patrick. Patrick provided essentially the same testimony and identified Respondent as the person who assaulted him.
Respondent presented several witnesses to rebut Belinda's and Patrick's testimonies. Specifically, Respondent's girlfriend testified that Respondent was with her on the night of the incident, but that Respondent left her house for thirty minutes with his father. Respondent's father testified that although he and Respondent drove to Belinda's apartment, they arrived after the altercation had taken place. Angel, Bonnie, and Mark all admitted that they were present during the altercation, but testified that Mark assaulted Patrick and specifically testified that Respondent was never there. Finally, Respondent testified that he was not at Belinda's apartment during the altercation and that he did not assault Patrick. The jury found Respondent guilty of ABWIK and burglary.
At the PCR hearing, Respondent argued that trial counsel should have investigated Patrick's inability to identify him as the assailant. Respondent testified that Patrick mistook Respondent for two different people at his bond hearing, and that on a later occasion, he saw Patrick at the probation office but that Patrick did not recognize him. Additionally, Respondent alleged that the arrest warrant described the assailant as five feet, six inches and 155 pounds but that he is six feet and 200 pounds. Respondent alleged that Mark more accurately matched the description in the warrant. Trial counsel testified that Respondent never informed him that Patrick failed to recognize him at the bond hearing and that he raised identification issues at trial.
The PCR court found that the identification of Respondent as the assailant was an "integral issue" at trial. Additionally, the PCR court found numerous factors indicated that the identification of Respondent as the assailant was peculiarly suspect. Specifically, these factors included testimony that Respondent was not involved in the assault, the description of the assailant in the arrest warrant, Respondent's testimony regarding Patrick's failure to recognize him, and the likely *399 possibility that Belinda implicated Respondent instead of Mark out of fear of Patrick's retaliation against Mark. Accordingly, the PCR court held that trial counsel was ineffective for failing to request a jury instruction on identification
This Court granted certiorari to review the PCR court's decision, and the State presents the following issue for review:
Did the PCR court err in finding trial counsel ineffective for failing to request an identification instruction?
STANDARD OF REVIEW
In post-conviction proceedings, the burden of proof is on the applicant to prove the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). On appeal, the PCR court's ruling should be upheld if it is supported by any evidence of probative value in the record. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989).
LAW/ANALYSIS
The State argues that the PCR court erred in finding trial counsel ineffective for failing to request an identification jury charge. We agree.
In order to establish a claim for ineffective assistance of counsel, the applicant must show that: (1) counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) counsel's deficient performance prejudiced the applicant's case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
In United States v. Telfaire, the court recommended "that trial courts include, as a matter of routine, an identification instruction" and provided a model identification instruction. Id. 152 U.S.App.D.C. 146, 149 n. 11, 469 F.2d 552, 555 n. 11 (C.A.D.C.1972). The model instruction, which emphasized that the State had to prove the accuracy of the identification of the defendant beyond a reasonable doubt, "was designed to focus the attention of the jury on the identification issue and minimize the risk of conviction through false or mistaken identification." State v. Jones, 344 S.C. 48, 59, 543 S.E.2d 541, 547 (2001). In State v. Simmons, this Court "admonish[ed] the trial bench that in single witness identification cases the *400 court should instruct the jury that the burden of proving the identity of the defendant rests with the state." 308 S.C. 80, 83, 417 S.E.2d 92, 94 (1992).
In our opinion, there is no evidence to support the PCR court's finding that trial counsel was ineffective for failing to request an identification instruction. Specifically, we do not believe that identification was an "integral issue" at Respondent's trial. Belinda and Patrick testified that Respondent, Mark, Angel, and Bonnie entered the apartment and that Respondent assaulted Patrick. On the other hand, Respondent's witnesses testified that only Mark, Angel, and Bonnie entered the apartment, that Mark assaulted Patrick, and that Respondent was never present during the altercation. Thus, the jury was not faced with the issue of whether Belinda and Patrick misidentified Respondent, but rather whether to believe their testimonies or instead whether to believe the defense's witnesses' testimonies.[2] Accordingly, we believe that the critical issue at trial was witness credibility, an issue on which the trial court sufficiently charged the jury. This conclusion is further supported by the PCR court's specific findings. For example, the PCR court noted that Respondent's witnesses testified that Respondent was not present during the assault and the PCR court determined that Belinda had motivation to falsely implicate Respondent.
Additionally, we believe cases in which an identification charge was relevant are readily distinguishable from this case. For example, Simmons involved a police officer identifying the defendant following an undercover operation, and in Jones and State v. Patterson, 337 S.C. 215, 522 S.E.2d 845 (Ct.App.1999), neither victim/eyewitness identifying the defendant knew the defendant prior to the crime. Conversely, in the instant case, the State provided two eyewitnesses who unequivocally identified Respondent as the assailant. See Jones, 344 S.C. at 59, 543 S.E.2d at 547 (holding a Telfaire charge was unnecessary where the case did not involve a single witness identification and where, given the witnesses' degree of certainty, there appeared very little likelihood of mistaken identification) and State v. Motes, 264 S.C. 317, 326, 215 S.E.2d 190, 194 (1975) *401 (finding no error in failing to give a Telfaire instruction where identification presented no peculiar problem).
Accordingly, we hold that there is no evidence to support the PCR court's decision that trial counsel was ineffective for failing to request an identification instruction.
CONCLUSION
For the foregoing reasons, we reverse the PCR court's order granting Respondent relief.
MOORE, WALLER, and BEATTY, JJ., concur.
PLEICONES, J., dissenting in a separate opinion.
Justice PLEICONES dissenting:
I respectfully dissent. In my opinion, since there is evidence of probative value in the record to support the post-conviction relief (PCR) judge's finding of ineffective assistance of counsel, we should uphold his decision. E.g., Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
The majority finds error in the PCR judge's finding that identification was the "integral issue" at Respondent's trial, stating that instead the "critical issue" was witness credibility. I do not understand this distinction, as the question was whether the witnesses' identification of Respondent as a participant in the crimes was credible. Moreover, the fact that two State's witnesses unequivocally identified Respondent as the assailant does not negate the importance of identification in the case, but merely highlights the centrality of the issue given that four defense witnesses, including those who admitted being present at the scene, as well as Respondent testified that he was not involved.
I would uphold the PCR judge's finding that trial counsel was ineffective in failing to request a jury charge emphasizing the State's burden to establish the accuracy of Respondent's identification beyond a reasonable doubt. Cherry v. State, supra.
NOTES
[1] Earlier that evening, Mark and Patrick got into a physical altercation in which apparently Patrick injured Mark.
[2] This, in our view, is the distinction between the issue of identification and witness credibility. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340024/ | 660 S.E.2d 777 (2008)
CLEVELAND
v.
The STATE.
No. A07A1797.
Court of Appeals of Georgia.
March 20, 2008.
Reconsideration denied April 9, 2008.
*778 James Denny Lamb, Waycross, for Appellant.
John Gray Conger, Dist. Atty., William Donald Kelly Jr., Asst. Dist. Atty., for Appellee.
SMITH, Presiding Judge.
Sean Cleveland appeals from his convictions of possession with intent to distribute methamphetamine, attempting to traffic in methamphetamine, and no proof of insurance. Cleveland asserts that the trial court erred by denying his motion to suppress and that he received ineffective assistance of counsel. For the reasons set forth below, we affirm.
1. Cleveland asserts the trial court should have granted his motion to suppress evidence found during the execution of a search warrant, because the warrant was not supported by probable cause and the information provided to the magistrate was stale. We disagree. A search warrant should only be issued
upon facts sufficient to show probable cause that a crime is being committed or has been committed. The magistrate's task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
(Citations omitted.) State v. Henderson, 271 Ga. 264, 269(4), 517 S.E.2d 61 (1999). We must give "substantial deference" to a magistrate's decision to issue a search warrant. Id.
A grudging or negative attitude by reviewing courts toward warrants, is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant *779 has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. . . . Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.
(Citations and punctuation omitted.) Id. at 269-270(4), 517 S.E.2d 61.
The record in this case shows that the warrant was issued based upon the following law enforcement affidavit:
On Wednesday 070704 Deputy Ryan Williamson of the Harris County Sheriff's Office stopped a vehicle being driven by Sean Cleveland. . . . The traffic stop was for no tag on the vehicle. Cleveland was taken into custody for driving while license suspended, as his license was suspended. While conducting a[n] inventory of the vehicle[,] drug paraphernalia w[ere] found. A glass pipe, a short green straw with suspected drug residue and a butane torch lighter w[ere] found behind the driver[']s seat. Also found during the inventory search were digital scales, a pill bottle containing a red chalky substance believed to be red phosphorous which is used in the manufacture of Methamphetamine. Inside a cigarette purse located in the rear of the van on the passenger side was found six small plastic bags, each containing a white substance that field tested positive for Methamphetamine (2.3 Grams). The vehicle . . . has a bill of sale to Sean Cleveland. Two people, Ronald Price and Tred Mast, were called to the scene at Cleveland's request. They arrived . . . from 2026 Highway 27, Cataula, Georgia, as told to Cpl. Tony Knotts. Inside the truck was found a small glass bottle containing residue that tested positive for Methamphetamine.
On Saturday 070304, a juvenile, [D.B.] . . . (age 14) was taken by [D.Q.][1] to 2026 Highway 27, Cataula where she was given what was described to her as Methamphetamine from the residence. This residence was positively identified by [D.B.] on Friday, 070904, while in the presence of Sgt. Lynch and Cpl. Walden. . . . [D.B.] described the white substance as a white powder which is consistent with Methamphetamine. She stated that the substance was on the coffee table inside the residence. Further, in this officer's experience[,] Methamphetamine and other illegal substances are commonly used and sold in multiple places by those engaged in the possession of and or sale of methamphetamine . . .
The affidavit further provided that an examination of tax and utility records on July 9, 2004, showed that Sean Cleveland was the owner of the house located at 2026 Highway 27, Cataula, Georgia. A handwritten notation on the affidavit states that "Mast and Price were arrested . . . for giving false information & suspended license. The glass bottle was found during vehicle inventory."
The magistrate signed the warrant on July 9, 2004 at 3:34 p.m. and it was executed the same day. During a search of Cleveland's house, police officers found devices to smoke drugs in the desk of an office outbuilding and the kitchen counter of the residence, pure distilled ephedrine in a bottle in the home's refrigerator, a straw with residue in the bedroom, and numerous other items commonly used in the manufacture of methamphetamine in a burn pile on the property. They also discovered several surveillance cameras throughout the property and a surveillance monitoring device.
After reviewing all of the information in the affidavit as a whole, we find that it provided sufficient probable cause for the magistrate to issue the search warrant and that the information provided was not stale. See Tarvin v. State, 277 Ga. 509, 511(4), 591 S.E.2d 777 (2004) (warrant obtained nine days after relevant evidence observed); Wilbanks v. State, 176 Ga.App. 533, 534(3), 336 *780 S.E.2d 312 (1985) (warrant executed six days after marijuana observed).[2]
2. In his remaining enumeration of error, Cleveland asserts that he received ineffective assistance of counsel because his lawyer did not adequately investigate the case and therefore did not provide him with the information needed to make an informed decision about the State's plea offer. The transcript of the trial and trial counsel's testimony in the motion for new trial hearing both show that trial counsel did not know until the middle of trial that the charges against Cleveland were based upon the evidence obtained during the search of the residence. Until that point, trial counsel believed that the State's evidence was limited to evidence found during the inventory search of Cleveland's vehicle.
The record also shows that Cleveland's trial counsel did not accept the State's offer to examine its file under the State's "open file" policy. Instead, defense counsel relied upon written discovery produced to previous defense counsel by the previous assistant district attorney for the State. Defense counsel believed that the State's case was founded only upon evidence found in the vehicle on July 7, 2004, because the first assistant district attorney assigned to the case omitted the search warrant affidavit from the discovery produced and the indictment recited that the crimes occurred on July 7, 2004. If trial counsel had examined the State's file after taking over the case, however, he would have learned about the search and evidence found on July 9, 2007.
Cleveland claims that he was prejudiced by counsel's ineffectiveness in preparing the case, because he did not know the true nature of the State's charges against him at the time he rejected the State's plea offer for straight probation and a fine.[3] In the motion for new trial hearing, trial counsel confirmed that when discussing the plea offer with Cleveland, he reviewed the evidence against Cleveland that was found in the vehicle and discussed with Cleveland the likelihood of success if they went forward with a trial. Cleveland testified that if he had known that the State's case against him included evidence found in the house, he would have accepted the plea offer of straight probation.
The trial transcript shows that Cleveland's defense to the items seized from the vehicle was that it was a work van also used by two other men who later were also arrested. At trial, defense counsel established during cross-examination that these items were either not visible or immediately recognizable as contraband. The contraband, paraphernalia, and surveillance cameras found during the search of the house, however, were more visible.
In Lloyd v. State, 258 Ga. 645, 646(2), 373 S.E.2d 1 (1988), the Georgia Supreme Court recognized that a "defendant is entitled, under the Sixth Amendment, to competent counsel who performs to the standards expected in the legal profession when deciding whether or not to plead guilty." (Citation omitted.) Id. A defendant "is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him." Id. at 648(2)(a), 373 S.E.2d 1.
In this case, trial counsel failed to advise Cleveland about all of the evidence in the State's case against him due to his failure to examine the State's "open file." Without this information, Cleveland could not make an informed decision about whether to accept or reject the State's plea offer of straight probation. Based upon these peculiar facts, we find that Cleveland has fulfilled his burden of showing that his "counsel's representation fell below an objective standard of reasonableness." (Citation and punctuation omitted.) Lloyd, supra, 258 Ga. at 647(2), 373 S.E.2d 1.
*781 Our analysis does not end here, however, because Cleveland must also demonstrate that "but for counsel's unprofessional errors, the result of the proceeding would have been different." (Citation and punctuation omitted.) Lloyd, supra 258 Ga. at 648(2)(b), 373 S.E.2d 1.
In a case in which a defendant complains that his trial counsel was deficient for failing to adequately inform him of the consequences of accepting a plea, such prejudice can only be shown by some indication that at the time the defendant rejected the plea he was amenable to the offer made by the state. Lloyd v. State.
(citation, punctuation and footnote omitted.) Carson v. State, 264 Ga.App. 763, 765, 592 S.E.2d 161 (2003) (whole court).
When Cleveland was first asked in the motion for new trial hearing why he did not accept the State's plea offer, he responded, "Well, I guess, dumb." Only after additional leading questioning by his counsel, did he testify that he would have accepted the State's offer of probation if he had known the true nature of the State's case against him. In addition, the record shows that he continued to assert his innocence during the sentencing hearing, that the assistant district attorney stated in his place below that "Cleveland was adamant about going to trial," that Cleveland learned during jury selection that the evidence seized in the second search would be used against him, and that Cleveland did not seek to renew the earlier plea offer after learning about the true nature of the State's case. The record also shows that Cleveland knew that the police searched his house, because he arrived there from jail while the police were still searching.
This evidence "supports a finding, implicit in the trial court's ruling, that there was no reasonable probability" that Cleveland would have pled guilty but for counsel's ineffectiveness. Larochelle v. State, 231 Ga.App. 736, 739(4), 499 S.E.2d 371 (1998). See also Carson, supra, 264 Ga.App. at 765, 592 S.E.2d 161.
In so holding, we acknowledge the Georgia Supreme Court's statement in Lloyd, supra, that it preferred "to examine the facts of each case and grant relief where there is at least an inference from the evidence that the defendant would have accepted the offer as made or something similar. Such an inference could be drawn even where the evidence is disputed or unclear on this question." (Footnote omitted.) 258 Ga. at 648(2)(b), 373 S.E.2d 1. We believe, however, that we should take care not to read this statement out of context. It was made after the Georgia Supreme Court noted that some jurisdictions find prejudice simply because the defendant's outcome at trial was worse than if he had accepted a more favorable plea offer. The Georgia Supreme Court rejected this approach, preferring to grant relief on a case by case basis "where there is at least an inference from the evidence that the defendant would have accepted the offer as made or something similar." Because the record before the Georgia Supreme Court in Lloyd was silent as to whether the defendant would have accepted the plea, no inference could be drawn in Lloyd.
The above-quoted language should not be used to alter the well-established "clearly erroneous" standard of review for ineffective assistance of counsel. See, e.g., Scapin v. State, 204 Ga.App. 725, 420 S.E.2d 385 (1992) (standard of review). Simply because an inference "could be drawn even where the evidence is disputed or unclear on this question," does not mean that a trial court is required to do so in cases where the evidence is disputed. (Emphasis supplied.) Lloyd, supra, 258 Ga. at 648(2)(b), 373 S.E.2d 1. In the absence of clear direction from the Georgia Supreme Court, we decline to apply this language from Lloyd to find prejudice in this case merely because the defendant testified after the fact that he would have accepted the State's plea offer but for counsel's ineffective assistance.[4]
Based on the evidence before it, the trial court was authorized to conclude that Cleveland's *782 claim that he would have accepted the plea lacked credibility. As a result it did not err by rejecting his ineffective assistance of counsel claim.
Judgment affirmed.
BARNES, C.J., and MILLER, J., concur.
NOTES
[1] The affidavit listed D.B. and D.Q.'s full names. In order to protect their identity, this court has abbreviated their names.
[2] Our opinion in Shivers v. State, 258 Ga.App. 253, 256-257, 573 S.E.2d 494 (2002), does not require a different result because in Shivers, the officers merely smelled an odor of marijuana on the defendant's person; they did not see marijuana on the property. Id. at 256-257, 573 S.E.2d 494.
[3] Cleveland understood the plea offer to be one year of probation and a $1,000 fine. The State asserted, however, that the offer was "either five or ten years probation with a fine."
[4] We also note that, as far as we can discern, in the 19 years since Lloyd was decided, neither the Georgia Supreme Court nor this court has used this language to reverse a trial court's rejection of an ineffective assistance of counsel claim and order either a new trial or enforcement of a plea offer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340025/ | 660 S.E.2d 920 (2008)
Victoria L. ROEMER, Plaintiff,
v.
PREFERRED ROOFING, INC., formerly known as Preferred Roofing, L.L.C., Defendant.
No. COA07-1554.
Court of Appeals of North Carolina.
June 3, 2008.
William E. West, Jr., Winston-Salem, for plaintiff-appellant.
Robert J. Lawing and H. Brent Helms, Winston-Salem, for defendant-appellee.
TYSON, Judge.
Victoria Roemer ("plaintiff") appeals from order entered, which granted Preferred Roofing, Inc.'s ("defendant") motion to dismiss. We affirm.
*922 I. Background
On or about 23 November 1999, plaintiff and defendant entered into a contract to remove the existing roof on plaintiff's home and replace it with a new roofing system. Several years after the project was completed, plaintiff discovered alleged defects with the roof including: (1) loose slate tiles; (2) separation of gutters from the house; and (3) rotten wood under the roof.
On 18 July 2007, plaintiff filed a complaint and alleged claims of: (1) negligence; (2) breach of contract; and (3) breach of warranty. Plaintiff's complaint asserted defendant had: (1) negligently performed its obligations under the contract; (2) failed to install the new roof in a professional and competent manner as was required by the parties' contract; and (3) failed to comply with its express lifetime warranty of the dependability and reliability of the installation of the roof. Plaintiff sought compensatory damages in an amount in excess of $10,000.00.
On 19 September 2007, defendant moved to dismiss all of plaintiff's claims. Defendant's motions to dismiss alleged: (1) plaintiff had failed to obtain valid service of process over defendant; (2) the trial court lacked jurisdiction over both defendant and the subject matter of the action; and (3) plaintiff's complaint failed to state any claim upon which relief may be granted pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Defendant withdrew its motions to dismiss challenging service of process and jurisdiction. On 12 October 2007, plaintiff filed a motion for voluntary dismissal without prejudice of her negligence and breach of contract claims.
On 15 October 2007, the trial court entered its order, which found "as a matter of law that plaintiff's [c]omplaint is barred by the applicable statute of repose and that defendant's motion to dismiss should be allowed." The trial court dismissed plaintiff's claim for damages for breach of warranty with prejudice. Plaintiff appeals.
II. Issue
Plaintiff argues the trial court erroneously dismissed her complaint under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
III. Breach of Warranty Claim
Plaintiff argues her "complaint . . . stated a claim upon which relief could be granted." We disagree.
A. Standard of Review
"A motion to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure presents the question whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory." Lynn v. Overlook Development, 328 N.C. 689, 692, 403 S.E.2d 469, 471 (1991) (citation omitted). "A statute of limitation or repose may be the basis of a 12(b)(6) dismissal if on its face the complaint reveals the claim is barred." Forsyth Memorial Hospital v. Armstrong World Industries, 336 N.C. 438, 442, 444 S.E.2d 423, 426 (1994) (citation omitted).
Dismissal of a complaint is proper under the provisions of Rule 12(b)(6) of the North Carolina Rules of Civil Procedure when one or more of the following three conditions is satisfied: (1) when the complaint on its face reveals that no law supports plaintiff's claim; (2) when the complaint reveals on its face the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats the plaintiff's claim.
Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985) (citation omitted). "This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct." Leary v. N.C. Forest Prods., Inc., 157 N.C.App. 396, 400, 580 S.E.2d 1, 4, aff'd, 357 N.C. 567, 597 S.E.2d 673 (2003).
B. Analysis
N.C. Gen.Stat. § 1-50(a)(5)a (2007) states:
No action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property shall be brought more than six years from the later of the specific last act or *923 omission of the defendant giving rise to the cause of action or substantial completion of the improvement.
"[N.C. Gen.Stat. § 1-50(a)(5)a] is a statute of repose and provides an outside limit of six years for bringing an action coming within its terms." Whittaker v. Todd, 176 N.C.App. 185, 187, 625 S.E.2d 860, 861 (citing Lamb v. Wedgewood South Corp., 308 N.C. 419, 427-28, 302 S.E.2d 868, 873 (1983)), disc. rev. denied, 360 N.C. 545, 635 S.E.2d 62 (2006).
"Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in the statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted." Black v. Littlejohn, 312 N.C. 626, 633, 325 S.E.2d 469, 474-75 (1985) (internal citations omitted). "If the action is not brought within the specified period, the plaintiff literally has no cause of action. The harm that has been done is damnum absque injuria a wrong for which the law affords no redress." Boudreau v. Baughman, 322 N.C. 331, 341, 368 S.E.2d 849, 857 (1988) (internal quotation omitted) (emphasis original).
Plaintiff's complaint, filed 18 July 2007, alleged the roofing project "was completed in the summer of 2000, and [p]laintiff accepted the completed project." Plaintiff's complaint was filed approximately seven years after "substantial completion of the improvement." N.C. Gen.Stat. § 1-50(a)(5)a. "Plaintiff's action is barred by the statute of repose which prohibits an action to recover damages for `the defective or unsafe condition of an improvement to real property' that is not brought within six years of `substantial completion of the improvement.'" Whittaker, 176 N.C.App. at 187, 625 S.E.2d at 861 (quoting N.C. Gen.Stat. § 1-50(a)(5)a) (emphasis supplied).
Plaintiff cites Haywood Street Redevelopment Corp. v. Peterson Co. for her assertion that the statute of repose does not bar their action to recover compensatory damages in an amount in excess of $10,000.00. 120 N.C.App. 832, 463 S.E.2d 564 (1995), disc. rev. denied, 342 N.C. 655, 467 S.E.2d 712 (1996). This Court, in Whittaker, addressed this argument and stated:
In Haywood, the plaintiff sued for negligence, breach of contract, and breach of express and implied warranties. This Court held plaintiff's breach of warranty claims were not barred by the statute of limitations because the warranty was for a specified period of time and each day there was a breach a new cause of action accrued. In the instant case, however, plaintiff filed a complaint for monetary damages only and did not sue for breach of warranty. Thus, plaintiff's reliance on Haywood is misplaced. We conclude plaintiff's action for monetary damages is barred by the statute of repose, N.C. Gen.Stat. § 1-50(a)(5)a.
176 N.C.App. at 187, 625 S.E.2d at 861-62 (internal citation omitted). While plaintiff's complaint lists her third claim for relief as a breach of warranty action, plaintiff only sought compensatory damages in an amount in excess of $10,000.00. Consistent with this Court's reasoning in Whittaker, plaintiff's claim for monetary damages only, is barred by the statute of repose pursuant to N.C. Gen.Stat. § 1-50(a)(5)a. 176 N.C.App. at 187, 625 S.E.2d at 861-62.
Plaintiff's remedy for breach of an alleged lifetime warranty claim that is "brought more than six years from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of the improvement[,]" lies in specific performance, and not damages. N.C. Gen.Stat. § 1-50(a)(5)a; see John N. Hutson, Jr. & Scott A. Miskimon, North Carolina Contract Law § 16-7, at 798-99 (2001) (citation omitted) ("Statutes of repose operate differently than statutes of limitation. The term of `statute of repose' is used to distinguish ordinary statutes of limitation from those statutes that impose a deadline for filing suit unrelated to the actual accrual of the cause of action. A statute of repose serves as an unyielding and absolute barrier that prevents a plaintiff's right to bring suit even before his cause of action may accrue and functions to give a defendant a vested right not to be sued if the plaintiff *924 fails to file within the prescribed time period.").
The trial court properly granted defendant's motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. This assignment of error is overruled.
IV. Conclusion
Plaintiff's action for monetary damages is barred by the applicable six-year statute of repose. N.C. Gen.Stat. § 1-50(a)(5)a. Plaintiff's complaint does not assert a claim for specific performance of the alleged lifetime warranty. The trial court properly granted defendant's motion to dismiss and its order is affirmed.
Affirmed
Judges McCULLOUGH and STROUD concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340027/ | 660 S.E.2d 853 (2008)
The STATE
v.
FELIX et al.
No. A08A0110.
Court of Appeals of Georgia.
April 7, 2008.
Jewel Charmain Scott and Anece Baxter White, Asst. Dist. Atty., for Appellant.
Dennis R. Scheib, Atlanta, Sexton & Key, Lee Sexton, Stockbridge, Joseph Scott Key, for Appellee.
*854 JOHNSON, Presiding Judge.
Randy and Sheralyn Felix were indicted for trafficking in marijuana and possession of marijuana. They each moved to suppress evidence of marijuana allegedly discovered during a warrantless search of their home. After a hearing, at which a police officer and Sheralyn Felix were the only witnesses, the trial court granted the motions to suppress, finding, among other things, that the police had not properly obtained consent to search the home. The state appeals, arguing that the trial court erred in granting the motions to suppress because the officers had valid consent to search the home. The argument is without merit and we thus affirm the judgment of the trial court.
When reviewing a trial court's order on a motion to suppress, we must construe the evidence most favorably to uphold the findings and judgment of the trial court.[1] Moreover, "the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them."[2]
In the instant case, a police drug task force agent testified that his office had received telephone complaints about possible drug activity at the Felixes' house. The agent did not obtain a search warrant for the house, but went there with other officers to investigate the complaints. The agent and two other plain clothes agents walked up to the front door of the house, where the Felixes stood inside as three of their friends walked out of the house. The agent testified, "I stepped inside and I basically identified myself as a police officer, advised them that we had a complaint of drug activity and did they mind if we stepped inside and spoke to them, at which time they retreated further into the house, stepping toward the living room, allowing us in." According to the agent, with three plain clothes agents inside the house and other police officers outside it, the Felixes immediately gave verbal consent to a search of their home. On cross-examination, the officer conceded that he could have memorialized the consent either with a written form or tape recorder, but he failed to do so.
Sheralyn Felix testified repeatedly that no consent was given to search the house. She testified that the agent walked into the house without having been invited and claimed that the police had already gotten consent to search the house from the Felixes' landlord. As she and her husband were talking to the agent, other officers also came inside without invitation and began searching the house, with one officer going upstairs and two going downstairs. Ms. Felix stated that she told the officer heading upstairs to stop and not go up there, but she was told that the officers could search the house because they smelled marijuana. When questioned as to whether she had told the police they could search the home, Ms. Felix testified, "No, I never told them they could come in and search. I told them they couldn't. I told them to stop."
As for her husband, Ms. Felix testified that she always does the talking for him because he had previously suffered an aneurysm and he regularly has headaches and seizures, for which he is on strong narcotic medication. She testified that he looked very confused when the agent walked uninvited into their home, that she would have heard if he had consented to a search and that when the agent asked them for consent they did not give it.
Having construed the evidence most favorably to uphold the findings and judgment of the trial court, we conclude that the trial court's finding that the police failed to obtain valid consent to search is not clearly erroneous. There is testimony from which the trial court was authorized to find that the agent came into the house uninvited. Moreover, there is testimony from which the trial court could have found that the Felixes never consented to a search of the home, and that even if they did consent it came after the agent's improper entry into the home. "[C]onsent to search that is given after an *855 illegal entry is tainted and invalid under the Fourth Amendment."[3] Because the trial court's decision to grant the motion to suppress is not clearly erroneous in that it is supported by at least some evidence, it must be affirmed.[4]
Judgment affirmed.
BARNES, C.J., and PHIPPS, J., concur.
NOTES
[1] Welchel v. State, 255 Ga.App. 556, 557, 565 S.E.2d 870 (2002).
[2] (Citations and punctuation omitted.) Alex v. State, 220 Ga.App. 754(1), 470 S.E.2d 305 (1996).
[3] (Citations and punctuation omitted.) Welchel, supra at 560, 565 S.E.2d 870.
[4] See State v. McKinney, 276 Ga.App. 69, 74(1), 622 S.E.2d 429 (2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340028/ | 660 S.E.2d 592 (2008)
Jonathan ROSET-EREDIA, a/k/a Liborio Valdavinos-Barriga, Employee-Plaintiff,
v.
F.W. DELLINGER, INC., Employer-Defendant, and
North Carolina Insurance Guaranty Association, Carrier-Defendant.
No. COA07-644.
Court of Appeals of North Carolina.
May 20, 2008.
The Law Offices of Robert J. Willis, by Robert J. Willis, Raleigh, for plaintiff-appellee.
Brooks, Stevens & Pope, P.A., by Robert S. Welch, Cary, and James A. Barnes IV, for defendants-appellants.
Carol L. Brooke, Raleigh, for North Carolina Justice Center, Amicus Curiae.
STEELMAN, Judge.
When plaintiff presented sufficient evidence of total disability and defendant-employer failed to rebut plaintiff's evidence, the Industrial Commission did not err in concluding that plaintiff is temporarily totally disabled.
I. Factual Background and Procedural History
Jonathan Roset-Eredia, a/k/a Liborio Valdavinos-Barriga (plaintiff), was 35 years of age at the time of the hearing before the deputy commissioner, and was an undocumented worker from Mexico. He can read and write in Spanish, but is functionally illiterate in English. On 27 July 2001, plaintiff broke his right leg and ankle in the course and scope of his duties as an employee of F.W. Dellinger, Inc. ("defendant"). Defendant and its insurance carrier North Carolina *595 Insurance Guaranty Association (hereinafter collectively referred to as "defendants") accepted plaintiff's claim as compensable, began providing temporary total disability benefits on 2 August 2001, and filed a Form 60 in February 2002. Plaintiff has had nine orthopedic and plastic surgeries on his leg. In August 2004, plaintiff's treating physician, Dr. Hage, found plaintiff to be at maximum medical improvement, found a 35% permanent partial disability to the right leg, released him to work with permanent light-duty restrictions, and referred him to vocational rehabilitation. Plaintiff's physical restrictions included no climbing, no squatting, no standing for more than one hour at a time, and no lifting over 35 pounds.
On 15 July 2003 plaintiff's vocational rehabilitation began. Due to plaintiff's status as an undocumented alien, he was unable to complete an I-9 form to document his legal work status. Angela Prenoveau ("Prenoveau"), a certified rehabilitation counselor at Southern Rehabilitation Network ("SRN") performed two labor market surveys, dated 14 January 2004 and 5 October 2004, to determine what jobs were available in plaintiff's geographic area that plaintiff could do based on his work and education history, transferable skills, and physical restrictions. Prenoveau did not communicate with any of the potential employers listed in her labor market surveys to determine what the jobs required in terms of physical activities, reading, mathematical, and writing skills due to her understanding of the SRN policy regarding federal immigration law limitations on job placement activity for injured workers who declined to complete an I-9 Employment Eligibility Verification form. Prenoveau understood the limitations to prohibit her from such communication with potential employers. However, Prenoveau testified that her former employer, the North Carolina State Division of Vocational Rehabilitation, did not construe federal immigration law to prohibit that type of job placement activity by rehabilitation counselors employed by the State. Likewise, Jane Coburn ("Coburn"), Prenoveau's co-worker, testified that she did not understand SRN policy to prohibit her communication with potential employers listed in a job market survey to determine what the jobs required in terms of physical activities.
The Full Commission filed an Opinion and Award on 2 February 2007, which held that as a result of his work-related injuries, plaintiff was totally disabled from earning wages and ordered the payment of temporary total disability at the rate of $407.95 per week pending further orders of the Commission. The Opinion and Award further directed defendants to pay for plaintiff's ongoing medical treatment and vocational rehabilitation services. Prenoveau and SRN were ordered replaced as the vocational rehabilitation professionals with Stephen Carpenter. Defendants appeal. Plaintiff makes several cross-assignments of error.
II. Commission's Conclusion of Law
In their first argument, defendants contend that the Commission erred in concluding that plaintiff is totally disabled within the meaning of N.C. Gen.Stat. § 97-2(9). Defendants argue that the evidence does not support such a finding, and that the Commission's conclusion of law was in error. We disagree.
The standard of review of an Industrial Commission's Opinion and Award is
whether any competent evidence supports the Commission's findings of fact and whether [those] findings . . . support the Commission's conclusions of law. The Commission's findings of fact are conclusive on appeal when supported by such competent evidence, even though there [is] evidence that would support findings to the contrary.
McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (internal citations and quotations omitted). "If the finding of fact is essentially a conclusion of law . . . it will be treated as a conclusion of law which is reviewable on appeal." Stan D. Bowles Distributing Co. v. Pabst Brewing Co., 69 N.C.App. 341, 344, 317 S.E.2d 684, 686 (1984) (citations omitted). The Commission's conclusions of law are reviewed de novo. McRae at 496, 597 S.E.2d at 700 (citation omitted).
N.C. Gen.Stat. § 97-2 of the Worker's Compensation Act defines "disability" as *596 "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C. Gen.Stat. § 97-2(9) (2007). The employee bears the burden of proving "both the existence of his disability and its degree." Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982) (citation omitted). In order to meet this burden, the employee must show at least one of the following:
(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment;
(2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment;
(3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or
(4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.
Russell v. Lowes Prod. Distribution, 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993) (internal citations omitted).
Once the employee presents substantial evidence that he or she is incapable of earning wages, "the employer has the burden of producing evidence to rebut the claimant's evidence." Burwell v. Winn-Dixie Raleigh, 114 N.C.App. 69, 73, 441 S.E.2d 145, 149 (1994). "This requires the employer to come forward with evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations." Id. (citations omitted).
An employee is "capable of getting" a job if "there exists a reasonable likelihood . . . that he would be hired if he diligently sought the job." It is not necessary . . . that the employer show that some employer has specifically offered plaintiff a job. If the employer produces evidence that there are suitable jobs available which the claimant is capable of getting, the claimant has the burden of producing evidence that either contests the availability of other jobs or his suitability for those jobs, or establishes that he has unsuccessfully sought the employment opportunities located by his employer.
Burwell at 73-74, 441 S.E.2d at 149 (internal citations omitted). Whether the evidence of suitable jobs is sufficient to satisfy the employer's burden is a question of fact for the Commission. Id.
Where the injured employee is an illegal alien, the employer must "produce sufficient evidence that there are suitable jobs plaintiff is capable of getting, `but for' his illegal alien status." Gayton v. Gage Carolina Metals, Inc., 149 N.C.App. 346, 351, 560 S.E.2d 870, 874 (2002). Although federal law prohibits employers from hiring, recruiting or referring for a fee unauthorized aliens, 8 U.S.C. § 1324a(a)(1)(A) (1994), this Court has held that employers may "perform labor market surveys to determine what jobs, if any, are available in the area where plaintiff resides that fit [the injured worker's] physical limitations." Gayton at 350, 560 S.E.2d at 873. We are bound by the holdings of this Court in Gayton. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Defendants argue that plaintiff did not present sufficient evidence to satisfy his burden of proof under Russell, supra. Specifically, defendants contend that plaintiff did not present adequate evidence that seeking employment is futile because of preexisting conditions, such as his lack of education and English language deficiencies. The parties do not dispute, and the record establishes, that plaintiff is capable of doing some work, that he does not have a job, and that he has not made reasonable efforts to obtain employment. Therefore, the only question is whether plaintiff presented sufficient credible evidence that seeking employment was futile because of preexisting conditions.
The Commission found that:
53. Plaintiff's vocational expert, Stephen Carpenter, was of the opinion that plaintiff has no transferable skills *597 from his past work history, that he can no longer perform his former job as a sheet rock finisher, that his work-related injuries and other vocational skills limit him from a full range of light work with a functional capacity of sedentary, and that it is unlikely that plaintiff can find suitable sedentary work, even at the unskilled level, as he has significant English language deficiencies. As a result of these marked physical and vocational limitations, it is Mr. Carpenter's opinion, and the Full Commission finds as fact, that plaintiff has not and will not be able to enter the competitive labor market until he becomes proficient in the English language and retrains pursuant to the recommendations of Mr. Carpenter.
There is evidence in the record that supports this finding. Carpenter testified in his deposition that plaintiff had no transferable skills. Carpenter's Vocational Report, dated 8 November 2004, states that plaintiff would probably not be able to find sedentary work due to his "significant English language deficiencies," as well as "marked physical and vocational limitations." Carpenter's report concluded that plaintiff would "not be able to enter the competitive labor market until he becomes proficient in the English language and retrains."
Defendants assert that Carpenter's testimony is incompetent because he did not "provide his opinions to a reasonable degree of professional certainty." Although "expert opinion testimony [which] is based merely upon speculation and conjecture, . . . [] is not sufficiently reliable to qualify as competent evidence," Holley v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750, 753 (2003), the degree of an expert's certainty goes to the weight of his testimony, not its admissibility. Adams v. Metals USA, 168 N.C.App. 469, 483, 608 S.E.2d 357, 365 (2005). The Commission found Carpenter's testimony to be credible, and afforded it weight accordingly. In accordance with the applicable standard of review, we decline to reweigh the evidence. See Matthews v. City of Raleigh, 160 N.C.App. 597, 599-600, 586 S.E.2d 829, 833 (2003).
The Commission further found:
56. Based upon the evidence of record concerning plaintiff's medical, vocational and literacy limitations, the Full Commission finds that plaintiff has met his burden of proof to show that the compensable injury that he suffered to his right foot and ankle on July 27, 2001 caused him and continues to cause him to be unable to earn the wages that he had been able earn [sic] before July 27, 2001 in the same or any other employment from July 27, 2001 through the present and continuing.
We first note that "[a]lthough designated as a finding of fact, the character of this statement is essentially a conclusion of law and will be treated as such on appeal." Britt v. Britt, 49 N.C.App. 463, 470, 271 S.E.2d 921, 926 (1980) (citation omitted). We therefore review this finding de novo to determine whether it is supported by the Commission's findings.
Although the Commission did not specifically state that it was futile for plaintiff to seek other employment, it found that plaintiff could not enter the labor market due to his limitations, and we hold that finding of fact 53 is essentially a finding of futility. We further hold that finding of fact 56 is supported by finding of fact 53, that plaintiff was unable to earn the wages he was earning before his injury, and that this constituted a disability within the meaning of N.C. Gen. Stat. § 97-2(9).
Defendants argue that evidence was presented that plaintiff was capable of some work and that there was no medical evidence supporting the futility prong, and contend that this evidence negates a finding by the Commission that it would be futile for the plaintiff to seek work. Defendants cite Carpenter's testimony that some of the jobs in the labor market surveys performed by Prenoveau could potentially be modified by the employer to accommodate a paraplegic worker, and that if a job description accommodated plaintiff's restrictions, plaintiff could perform the job.
*598 As noted in Stevie Johnson v. City of Winston-Salem, ___ N.C.App. ___, 656 S.E.2d 608 (2008), the North Carolina Supreme Court has held that the relevant inquiry regarding a claimant's capacity to work "is not whether all or some persons with plaintiff's degree of injury are capable of working and earning wages, but whether plaintiff herself has such capacity." Johnson at ___, 656 S.E.2d at 613 (quoting Little v. Anson County Schools Food Serv., 295 N.C. 527, 531, 246 S.E.2d 743, 746 (1978)). In Little, the Court stated that a physician's testimony that "there are some gainful occupations that someone with [plaintiff's] degree of neurological problem could pursue," was "an oblique generality which sheds no light on plaintiff's capacity to earn wages." Little at 531, 246 S.E.2d at 746. Carpenter's testimony that it is hypothetically possible that plaintiff could perform some sedentary work if the jobs were modified is a generality which sheds no light on plaintiff's capacity to earn wages. See id.; Johnson at ___, 656 S.E.2d at 613. Further, we note that Carpenter stated several times that "[r]ealistically, these jobs are far beyond [plaintiff's] abilities and his functional capacity[.]"
Once plaintiff presented substantial evidence that he was unable to earn wages, the burden shifted to defendants to show that suitable jobs were available to plaintiff and that he was capable of getting one of those jobs. See Burwell at 73, 441 S.E.2d at 149.
The Commission made the following pertinent findings of fact relating to defendants' evidence:
50. In her completion of the October 2004 Labor Market Surveys, Ms. Prenoveau did not communicate in any way with any of the potential employers listed in the October 2004 Labor Market Survey to determine what the particular job(s) actually required in terms of physical activities, reading, mathematical, and writing skills . . .
51. Despite her use of the Labor Market Survey procedures described, Ms. Prenoveau gave the opinion that plaintiff "might reasonably have expected" to find one of the jobs listed in her Labor Market Surveys if he made reasonable efforts to search for the job, that those jobs "may be appropriate for him", that he "could have a reasonable chance of obtaining one of those jobs or some of those jobs if you made a reasonable effort to search for them", that "there was a reasonable chance that he would obtain employment within his restrictions in the area had he signed up with one of those [temporary] agencies", and that "contacting any of those [temporary] agencies could lead to employment for him". (emphasis in original)
The Commission found that Prenoveau's opinions
were either speculative ("could", "might", reasonable "chance") or based in substantial part on labor market surveys which failed to include any specific information as to the actual physical, language and educational requirements of those jobs due to Ms. Prenoveau's failure to directly consult with any of the employers listed in those surveys about those physical, language and educational requirements[.]
In the instant case, the Commission stated that it "gives little weight to these vocational opinions." As the Commission is the sole judge of the credibility of the witnesses and has rejected as not credible defendants' evidence that suitable jobs were available which plaintiff was capable of obtaining, we hold that defendants did not meet their burden of producing evidence to show that suitable jobs were available and that plaintiff was capable of getting one, taking into account plaintiff's physical and vocational limitations. See Burwell at 73, 441 S.E.2d at 149.
The facts of the instant case are distinguishable from those in an unpublished decision by this Court, Nicandro Sosa Parada v. Custom Maintenance, Inc., et. al., No. COA06-89, 2006 WL 2807178 (2006), cited by defendants. In Sosa Parada, we held that the employer had met his burden of proof by completing a labor market survey which identified numerous jobs within the plaintiff's geographical area and physical restrictions which the plaintiff was capable of securing. A treating physician reviewed the labor market *599 survey and approved four of the job descriptions as appropriate for plaintiff.
In the instant case, Prenoveau did not communicate with any of the employers listed in the labor market surveys to determine what the particular jobs required. Therefore, Prenoveau was unable to demonstrate that the jobs contained in those surveys were suitable for plaintiff or that he was capable of securing one of the jobs listed.
Because the Commission's findings of fact are supported by the evidence, and its conclusions of law are supported by the findings, we affirm the award of the Commission. This argument is without merit.
III. Salaam Violation
In their next argument, defendants contend that the Commission erred in concluding that a Salaam violation occurred. We disagree.
Pursuant to Rule VII.D of the North Carolina Industrial Commission Rules for Rehabilitation Professionals, promulgated pursuant to N.C. Gen.Stat. § 97-25.5 and clarified by the decision in Salaam v. N.C. DOT, 122 N.C.App. 83, 468 S.E.2d 536 (1996), rehabilitation professionals are prohibited from communicating with a treating physician without the prior consent of the injured worker's attorney.
In the instant case, the Full Commission found that Prenoveau "contacted Dr. Hage directly without the consent of plaintiff in an effort to convince Dr. Hage to order a functional capacity evaluation." The Commission concluded that:
5. The actions of Angela Prenoveau in contacting Dr. Hage were in violation of the principles set out in Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990), and Salaam v. N.C. Dept. of Transp., 122 N.C.App. 83, 468 S.E.2d 536 (1996), disc. review improvidently allowed, 345 N.C. 494, 480 S.E.2d 51 (1997). See Mayfield v. Parker Hannifen[Hannifin], 174 N.C.App. 386, 621 S.E.2d 243 (2005).
The Commission's award provided that:
10. Based upon the Salaam violation . . . the Full Commission exercises its discretion to require defendant-carrier to replace both Angela Prenoveau and Southern Rehabilitation Network, Inc. ("SRN") as the vocational rehabilitation professionals assigned to this case with Stephen Carpenter . . .
The progress report from SRN cited by plaintiff as showing a violation of Salaam establishes that it was Beth Ezzell, not Prenoveau, who attempted to contact or contacted Dr. Hage's staff in April 2005.
Although the evidence in the record does not support the Commission's finding of fact in this matter, and the Commission's conclusion of law is likewise unsupported, "[t]o warrant reversal, the Industrial Commission's error must be material and prejudicial." Taylor v. Margaret R. Pardee Memorial Hospital, 83 N.C.App. 385, 387, 350 S.E.2d 148, 150 (1986) (citation omitted).
Our review of the transcripts, records, and briefs supports the Commission's finding that a Salaam violation occurred. A report by Beth Ezzell states that she repeatedly communicated with the receptionists and assistant of Dr. Hage to inquire whether Dr. Hage "feels the Functional Capacity Evaluation is necessary to determine the IW's limitations and abilities" pursuant to a request from the adjuster.
Defendants have made no argument as to how the Commission's finding regarding the identity of the particular SRN employee is material in light of the Commission's conclusion that a Salaam violation occurred, and its decision to replace SRN with Stephen Carpenter. This argument is without merit.
IV. Functional Capacity Evaluation
In their next argument, defendants contend that the Commission erred in failing to address the issue of whether an updated Functional Capacity Evaluation ("FCE") was warranted. We disagree.
In paragraph 4 of its award, the Commission stated that
4. Defendants shall authorize and pay for the additional vocational and medical assistance, evaluation(s), and/or treatment that are described in Paragraphs 1-6 of Mr. Carpenter's report dated *600 November 8,2004 in order to effect a cure, provide relief, and/or lessen the period of plaintiff's disability.
The first paragraph of the proposed recommendations in Carpenter's report was that plaintiff obtain a
[c]onsultation with the attending medical specialist to determine the status of the osteomyelitis and other impairments affecting medical stability. Consultation with the physician should include outline of a treatment plan to cure the chronic osteomyelitis and to improve functional capacity so that the client can eventually engage in a full range of competitive work activity.
This recommendation addresses the issue of the necessity of a new FCE and makes clear that, in Carpenter's opinion, an FCE was unwarranted and that plaintiff should instead consult with a medical specialist regarding his physical abilities. Further, during the deposition of Dr. Hage, he was asked about the usefulness of an FCE in determining plaintiff's restrictions. Dr. Hage responded that:
I felt comfortable, given the restrictions that I gave, based on my exam of the patient and my interpretation of the x-rays, and my talking to Mr. Roset-Eredia about his limitations, and what he can or can't do. And I didn't feel like, at that point, a functional capacity exam was necessary . . .
We hold that, by its adoption of Carpenter's recommendation, which is corroborated by Dr. Hage's opinion, the Commission addressed the issue of the necessity of an FCE. This argument is without merit.
V. Plaintiff's Cross-Appeal
Plaintiff presents four cross-assignments of error. Plaintiff acknowledges, and we agree, that these arguments are moot due to our affirming the award of the Full Commission. The only argument in plaintiff/cross-appellant's brief not rendered moot is plaintiff's request for attorney's fees for this appeal.
We note that a request to this Court for an award of fees pursuant to N.C. Gen.Stat. § 97-88 was not properly raised as a cross-assignment of error. N.C.R.App. P. 10(d) (2008).
N.C. Gen.Stat. § 97-88 provides that:
If the Industrial Commission at a hearing on review or any court before which any proceedings are brought on appeal under this Article, shall find that such hearing or proceedings were brought by the insurer and the Commission or court by its decision orders the insurer to make, or to continue payments of benefits . . . to the injured employee, the Commission or court may further order that the cost to the injured employee of such hearing or proceedings including therein reasonable attorney's fee to be determined by the Commission shall be paid by the insurer as a part of the bill of costs.
N.C. Gen.Stat. § 97-88 (2007). Even assuming plaintiff had properly moved for expenses and fees under N.C. Gen.Stat. § 97-88, in our discretion, we decline to issue such an order.
AFFIRMED.
Judges McCULLOUGH and GEER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340035/ | 660 S.E.2d 212 (2008)
Kelly B. CROCKER, Plaintiff
v.
Gregory S. CROCKER, Defendant.
No. COA07-964.
Court of Appeals of North Carolina.
May 6, 2008.
Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene and Tobias S. Hampson, Raleigh, for plaintiff-appellant.
Crowe & Davis, P.A., by H. Kent Crowe, Conover, for defendant-appellee.
MARTIN, Chief Judge.
Plaintiff appeals from the trial court's orders awarding defendant $2,000 per month in postseparation support and alimony and its *214 denial of a subsequent request for additional findings of fact.
Plaintiff Kelly B. Crocker ("wife") and defendant Gregory S. Crocker ("husband") were married on 1 July 1989 and separated on 6 September 2004. They were divorced in November 2005. Four minor children were born during the marriage. Wife is a pediatrician, and husband is self-employed, earning income through his ownership and management of rental properties in the Boone/Blowing Rock area. On 2 February 2005, wife filed a complaint seeking divorce from bed and board, interim distribution, equitable distribution, child custody, and child support. On 7 April 2005, husband filed an answer and counterclaim, seeking divorce from bed and board, postseparation support, alimony, equitable distribution, child custody, and child support. Wife filed a reply on 10 June 2005. The trial court heard the issues of temporary custody, child support, and postseparation support on 28 June 2005 and awarded husband $2,000 per month in postseparation support. The court made findings that husband's gross monthly income was $4,800, wife's gross monthly income was $13,444, and the parties owned two residences. One residence did not have a mortgage and the other residence was on Lake Hickory and had a monthly mortgage payment of $1,318.
On 20 October 2006, the trial court held a hearing on permanent alimony. The court took judicial notice of the postseparation support order, among other documents, and incorporated the findings of fact from these documents by reference. On 7 March 2007, before the permanent alimony award was entered, wife filed a motion for additional findings of fact and amendment of the order pursuant to N.C.G.S. § 1A-1, Rule 52. On 23 March 2007, the court entered the order awarding husband alimony of $2,000 per month for sixteen years. The court also entered an order denying wife's motion for additional findings of fact. Wife appeals.
First, wife argues that the trial court erred in entering the order for postseparation support because it lacked findings of fact required by N.C.G.S. § 50-16.2A(b). The statute requires:
In ordering postseparation support, the court shall base its award on the financial needs of the parties, considering the parties' accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party's respective legal obligations to support any other persons.
N.C. Gen.Stat. § 50-16.2A(b) (2007). N.C.G.S. § 1A-1, Rule 52(a) requires in all non-jury trials that the trial court find specially "those material and ultimate facts from which it can be determined whether the findings are supported by the evidence and whether they support the conclusions of law reached." Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982); see also N.C. Gen.Stat. § 1A-1, Rule 52 (2007). We note that the general principles articulated in Quick as applied to alimony awards are equally applicable to awards of postseparation support. See 2 Suzanne Reynolds, Lee's North Carolina Family Law § 8.45 & n. 312 (5th ed. 1999) (citing Quick, 305 N.C. at 450, 290 S.E.2d at 657, for the proposition "[b]ecause all of the issues in the claim for postseparation support are decided by the court, Rule 52 of the Rules of Civil Procedure governs the contents of the [postseparation support] order"). When a statute requires the court to consider certain factors in making an award, "[t]he trial court must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the [statutory] factors." Skamarak v. Skamarak, 81 N.C.App. 125, 128, 343 S.E.2d 559, 561 (1986) (citing Quick, 305 N.C. 446, 290 S.E.2d 653). Wife contends that the court failed to make findings related to the parties' financial needs, their accustomed standard of living, their separate and marital debt obligations, and the expenses reasonably necessary to support each of them. With regard to these factors, the trial court found "[d]efendant testified that he needs $3,500.00 per month as post-separation support," and "[d]efendant is living in a residence upon *215 which there is no mortgage payment. The [p]laintiff is living in the Lake Hickory residence which is encumbered by a mortgage that costs about $1,318.00 per month that [p]laintiff is paying."
Furthermore:
[W]hile Rule 52(a) does not require a recitation of the evidentiary and subsidiary facts required to prove the ultimate facts, it does require specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.
Quick, 305 N.C. at 452, 290 S.E.2d at 658. "[M]ere recitations of the evidence . . . do not reflect the `processes of logical reasoning'" and are not ultimate facts; therefore, they are insufficient. Williamson v. Williamson, 140 N.C.App. 362, 364, 536 S.E.2d 337, 339 (2000) (quoting Appalachian Poster Adver. Co. v. Harrington, 89 N.C.App. 476, 479, 366 S.E.2d 705, 707 (1988)). Because the evidence revealed that the only debt the parties had was the mortgage on the Lake Hickory residence, the court's finding of fact about the mortgage payment was sufficient to show that the court properly considered that factor in awarding postseparation support. However, because the court's finding about husband's need for support merely recites husband's testimony, it is insufficient to show the court considered the other statutory factors for postseparation support. Coupled with the court's failure to make findings of fact about the parties' standard of living, we conclude the trial court failed to make necessary findings of the financial needs of the parties, considering the parties' accustomed standard of living and the expenses reasonably necessary to support each of the parties. Therefore, we reverse the postseparation support order and remand the case to the trial court for findings of fact in accordance with N.C.G.S. § 50-16.2A.
Next, wife argues that the trial court erred in entering its order of permanent alimony where it failed to make required findings of fact pursuant to N.C.G.S. § 50-16.3A. The court purported to make extensive findings of fact by taking judicial notice of the postseparation support order, the consent judgment regarding equitable distribution, the child custody and support order, and various wage affidavits and amended alimony affidavits and incorporating by reference the facts in these documents. As we previously noted, when determining an alimony award, "[t]he trial court must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the [statutory] factors." Skamarak, 81 N.C.App. at 128, 343 S.E.2d at 561. The general incorporation of all findings from other court documents is not sufficiently specific to demonstrate whether the trial judge properly considered the statutory factors for awarding alimony. Therefore, these findings of fact cannot be considered in determining whether the court's findings of fact are adequate under N.C.G.S. § 50-16.3A.
Wife argues that the trial court's findings of fact were insufficient under § 50-16.3A(a), which requires "a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors" before the court makes an award of alimony. N.C. Gen.Stat. § 50-16.3A(a) (2007). "`Dependent spouse' means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse." N.C. Gen.Stat. § 50-16.1A(2) (2007). In the case before us, the trial court found "[d]efendant is . . . actually substantially dependent upon the plaintiff for his maintenance and support and is substantially in need of maintenance and support." Wife contends that these findings are error when they are not supported by necessary additional findings of fact as recognized by our Supreme Court in Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980). We agree.
In Williams, our Supreme Court concluded:
[T]he legislature intended trial courts to determine dependency . . . bearing in mind these propositions:
. . . .
*216 (2) The incomes and expenses measured by the standard of living of the family as a unit must be evaluated from the evidence presented. If this comparison reveals that one spouse is without means to maintain his or her accustomed standard of living, then the former would qualify as the dependent spouse under the phrase "actually substantially dependent."
Id. at 182-83, 261 S.E.2d at 855-56 (quoting N.C. Gen.Stat. § 50-16.1(3) (now N.C. Gen. Stat. § 50-16.1A(2) (2007))). Thus, in order to support its finding that husband was actually substantially dependent, the trial court should have made findings of the parties' incomes and expenses and the standard of living of the family unit. Although the court made findings of fact of the parties' incomes, it did not make any findings of fact to show it considered their expenses or their standard of living. Accordingly, the court's findings of fact were insufficient to support a finding that husband was actually substantially dependent.
The Court in Williams further noted: "If the comparison does not reveal an actual dependence by one party on the other, the trial court must then determine if one spouse is `substantially in need of maintenance and support' from the other. In doing so, . . . additional guidelines should be followed." Id. at 183, 261 S.E.2d at 856. The additional guidelines include "the standard of living, socially and economically, to which the parties as a family unit had become accustomed during the several years prior to their separation"; "the present earnings and prospective earning capacity and any other `condition' (such as health and child custody) of each spouse"; "whether the spouse seeking alimony has a demonstrated need for financial contribution from the other spouse in order to maintain the standard of living of the spouse seeking alimony in the manner to which that spouse became accustomed during the last several years prior to separation"; "[t]he financial worth or `estate' of both spouses"; and "the length of a marriage and the contribution each party has made to the financial status of the family over the years." Id. at 183-85, 261 S.E.2d at 856-57. Of these factors, in the present case, the court made no findings of the standard of living of the parties, husband's need for financial contribution, or the parties' estates. Therefore, the findings of fact are insufficient for the court to find that husband was substantially in need of maintenance or support. Because the court did not properly find that husband was either actually substantially dependent or substantially in need of maintenance or support, we must reverse the order awarding permanent alimony and remand for findings of fact in accordance with N.C.G.S. § 50-16.3A(a).
Wife further argues that the findings of fact were insufficient to support an award of alimony in accordance with N.C.G.S. § 50-16.3A(b). We agree. The statute mandates "[i]n determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors" and lists sixteen factors. N.C. Gen.Stat. § 50-16.3A(b). "[T]he court shall make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor." N.C. Gen.Stat. § 50-16.3A(c). Wife contends that the trial court failed to make findings of fact on five of the required factors.
First, wife contends the court failed to make findings of "[t]he amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others." N.C. Gen.Stat. § 50-16.3A(b)(4). Although the court made findings of the earned income of the parties and wife's health insurance benefits, the court did not make findings of fact about income from retirement or other benefits but did find that both parties had "individual retirement accounts, stock options, and financial assets."
Additionally, wife claims that the trial court failed to make findings of "[t]he standard of living of the spouses established during the marriage; . . . [t]he relative assets and liabilities of the spouses; . . . [and t]he relative needs of the spouses." N.C. Gen. Stat. § 50-16.3A(b)(8), (10), and (13). The court failed to make findings of the parties' standard of living, husband's real estate assets, and the relative needs of the spouses. *217 Without these necessary findings, we cannot determine whether the court properly considered the relevant factors; therefore, upon remand, we direct the trial court to make findings of fact on these factors.
We also agree with wife that the court failed to make the necessary findings under N.C.G.S. § 50-16.3A(c), which requires: "The court shall set forth the reasons for its award or denial of alimony and, if making an award, the reasons for its amount, duration, and manner of payment." The trial court failed to state any reason for the amount of alimony, its duration, or the manner of payment. On remand, we direct the court also to make findings of fact in accordance with § 50-16.3A(c).
Orders for postseparation support and alimony are reversed and remanded for additional findings.
Reversed and Remanded.
Judges CALABRIA and GEER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265332/ | 185 Cal.App.4th 677 (2010)
LEGACY VULCAN CORP., Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;
TRANSPORT INSURANCE COMPANY, Real Party in Interest.
No. B215713.
Court of Appeals of California, Second District, Division Three.
June 11, 2010.
*681 Covington & Burling, Donald W. Brown, Wendy L. Feng and Stephen E. George for Petitioner.
No appearance for Respondent.
Duane Morris, Ray L. Wong, Paul J. Killion, Michael J. Dickman and Cyndie M. Chang for Real Party in Interest.
OPINION
CROSKEY, J.
In this case, we consider the nature of an insurer's defense obligations under a policy of liability insurance that provides both "excess" and "umbrella" coverage. In addition, we discuss the scope and extent of an insurer's duty to defend in spite of a "retained limit" on the insurer's duty to indemnify.
Legacy Vulcan Corp. (Vulcan) petitioned this court for a writ of mandate, challenging a pretrial order that decided three stipulated legal questions concerning the scope of the duty to defend under a liability insurance policy issued by Transport Insurance Company (Transport). The trial court concluded that the policy provided both excess and umbrella coverage, but that, for purposes of the duty to defend, Transport's obligations were limited to those of an excess insurer. Specifically, the trial court concluded that a duty to defend could arise under the terms of the policy only upon the exhaustion of all underlying insurance. It also held that a duty to defend could arise only upon a showing that the claims were "actually covered" under the policy.
*682 (1) We disagree and conclude that the umbrella coverage was primary coverage and that the existence of a duty to defend with respect to that coverage did not depend on the exhaustion of any underlying insurance. The term "underlying insurance" as used in the provision establishing a duty to defend with respect to the umbrella coverage is ambiguous; absent extrinsic evidence to the contrary, it must be interpreted in Vulcan's favor to encompass only the underlying policies described in a schedule attached to the Transport policy, rather than all of the collectible primary insurance available to Vulcan. Moreover, Vulcan need not show that the claims were actually covered under the Transport policy in order to establish a duty to defend with respect to the primary coverage provided by the umbrella provision, but need only show a potential for coverage.
We also conclude that a "retained limit" or "self-insured retention" provision in a policy providing primary coverage relieves the insurer of the duty to provide an immediate, "first dollar" defense only if the policy expressly so provides. Thus, Vulcan need not have incurred a liability in excess of the "retained limit" described in the Transport policy before the insurer's duty to defend could arise. We therefore will grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. Insurance Policy Provisions[1]
Vulcan manufactured and sold perchloroethylene. Transport issued liability insurance policies to Vulcan for several years, including an excess catastrophe liability policy effective from January 1, 1981, to January 1, 1982. Under the terms of that policy, Transport agreed to indemnify Vulcan for the "ultimate net loss in excess of the retained limit" that Vulcan became legally obligated to pay as damages because of personal injury, property damage or advertising injury. Transport also agreed to defend any lawsuit "seeking damages on account of such personal injury, property damage or advertising injury," if certain conditions were satisfied.
The insuring agreement set forth Transport's indemnity and defense obligations under the policy as follows:
"The Company will indemnify the Insured for ultimate net loss in excess of the retained limit hereinafter stated which the Insured shall become legally obligated to pay as damages because of
*683 "A. personal injury or
"B. property damage or
"C. advertising injury
"to which this insurance applies, caused by an occurrence, and
"(1) With respect to any personal injury, property damage or advertising injury not within the terms of the coverage of underlying insurance but within the terms of coverage of this insurance; or
"(2) If limits of liability of the underlying insurance are exhausted because of personal injury, property damage or advertising injury during the period of this policy[2]
"The Company will
"(a) have the right and duty to defend any suit against the Insured seeking damages on account of such personal injury, property damage or advertising injury, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient; but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the Company's limit of liability has been exhausted by payment of judgments or settlements.
"(b) in addition to the amount of ultimate net loss payable:
"(i) pay all expenses incurred by the Company, all costs taxed against the Insured in any suit defended by the Company and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the Company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the Company's liability thereon;
"(ii) pay premiums on appeal bonds required in any suit, premium on bonds to release attachments in any such suit for an amount not in excess of the applicable limit of liability of this policy, and the cost of bail bonds *684 required of the Insured because of accident or traffic law violation arising out of the use of any vehicle to which this policy applies but the Company shall have no obligation to apply for or furnish any such bonds;
"(iii) pay reasonable expenses incurred by the Insured at the Company's request in assisting the Company in the investigation or defense of any claim or suit, including actual loss of earnings not to exceed $50 per day." (Italics added.)
The declarations portion of the policy stated that the retained limit was "Underlying Insurance" or:
"ITEM 3. $100,000 because of personal injury, property damage or advertising injury [¶] arising out of any one occurrence not within the terms of coverage of underlying insurance but within the terms of the coverage of this insurance."
A separate portion of the policy provided, under the heading "RETAINED LIMITTHE COMPANY'S LIMIT OF LIABILITY," that Transport's limit of liability was the "ultimate net loss in excess of the Insured's retained limit defined as the greater of:
"(a) an amount equal to the limits of liability indicated beside the underlying insurance listed in Schedule A hereof, plus the applicable limits of any other underlying insurance collectible by the Insured; or [¶] (b) the amount specified in Item 3. of the Limits of Liability section of the declarations because of personal injury, property damage or advertising injury not within the terms of the coverage of the underlying insurance listed in Schedule A."[3] (Italics added.)
"Ultimate net loss" was defined in the policy, generally, as the amount actually paid or payable for Vulcan's liability, excluding "all loss expenses and legal expenses," such as attorney fees. The term "underlying insurance" was undefined. A policy endorsement, however, set forth a schedule of underlying insurance (also entitled "Schedule A") listing several insurance policies and stating the limits of liability for each policy.
Finally, the policy stated under the heading "Other Insurance": "If collectible insurance with any insurer is available to the Insured covering a loss also covered hereunder, the insurance hereunder shall be in excess of, and not *685 contribute with, such other insurance provided, however, this does not apply to insurance which is written as excess insurance over the Company's limit of liability provided in this policy. [¶] When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the Company shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision below . . . ."
2. Underlying Actions
The City of Modesto and others sued Vulcan in three actions, alleging that use of perchloroethylene by the dry cleaning industry had resulted in environmental contamination. Vulcan tendered its defense to several insurers, but none provided a defense.[4] Vulcan paid for its own defense and settled the lawsuits.
3. Present Actions
Transport filed a complaint against Vulcan for declaratory relief as to the parties' rights and obligations under the policy. Transport alleges in its complaint that it agreed to defend Vulcan under the terms of the policy only as to losses that were actually covered under the policy and only if and after Vulcan established a right of indemnity.[5] Other insurers commenced a separate action by filing another complaint against Vulcan for declaratory relief.[6] The trial court consolidated the two actions and designated the consolidated case as complex. Vulcan filed a cross-complaint against Transport and other insurers for breach of contract and declaratory relief.
Vulcan and Transport stipulated that the trial court could decide specified legal questions before trial. The first question concerned the meaning of the phrase in clause (1) "within the terms of coverage of this insurance." The second focused on the meaning of the term "underlying insurance," which was used in several provisions of the policy. The third related to the application of the principles of horizontal exhaustion with respect to Transport's duty to defend.
*686 The trial court answered those questions as follows in an order filed on April 9, 2009:
(1) "The wording `within the terms of coverage of this insurance' means that, under the circumstances of this case, a suit must be shown to be actually covered by this policy for the provisions to apply. If the defense obligations were `payable' under the terms of the primary policy, there is no duty to defend under the terms of the Transport policy." The trial court stated further: ". . . Transport's duty to defend does not necessarily extend to any suit making claims that are merely potentially covered (it will be Vulcan's burden to establish at trial that the applicable underlying insurance has actually been exhausted). Absent a showing that there is no other primary coverage is [sic] available, Transport has no duty to defend under the policy."
The trial court explained that clause (1) was an umbrella provision and clause (2) an excess provision. The court stated that absent an express provision to the contrary, an excess insurer has no duty to defend unless the primary coverage has been exhausted. The Transport policy provided indemnity coverage only in excess of the underlying insurance, and Vulcan's liability could be "within the terms of coverage of this insurance," as stated in clause (1), only after the exhaustion of the underlying insurance. The court further stated, "[u]nder the Court's reading of the Insuring Agreement, the requirement that the underlying suit fall `within the terms of coverage of this insurance' means there must be actual coverage before the duty to defend is triggered-especially in light of the posture of this case (i.e., the fact the Modesto litigation settled prior to Vulcan's tender)." The court concluded, "The settlement of the underlying claims and the fact that the defense of the claims is complete is significant. The Court determines the issues with respect to the duty to defend in this context, and not in the context of a tender of pending claims."
(2) "The term `underlying insurance' refers to any underlying primary or SIR [self-insured retention] insurance for continuous losses, any portion of which occurred during the policy periods during which the Transport policy was in effect."
The trial court reasoned that absent an express provision to the contrary, an excess insurer has no duty to indemnify or defend until all of the underlying policies in effect at any time during the period of a continuous loss are exhausted. It stated that because the policy did not expressly define the term "underlying insurance" to include only those policies listed in Schedule A, that term should be interpreted to include all primary policies in effect at any time during the period of a continuous loss. The court stated further that if any self-insured retention "provided primary coverage for continuous losses," *687 the self-insured retention must be exhausted before any duty to defend could arise under the Transport policy.
(3) "[A]ll of the underlying coverage would have to be exhausted before Transport's defense obligations are triggered, pursuant to the horizontal exhaustion rule. As such, the Court determines that Transport can rely on principles of horizontal exhaustion before its duty to defend is triggered under the applicable Transport policy."
Vulcan filed a request for clarification of the trial court's answer to the first question. Vulcan argued that it appeared that the court had relied on unsubstantiated statements of fact in Transport's brief to the effect that Vulcan had failed to tender its defense to Transport until after the underlying actions were settled. Vulcan argued that any factual or legal questions concerning its tender of defense were reserved for trial, that the parties had not stipulated to any pretrial resolution of those issues, and that the court should not rely on such purported facts in interpreting the policy. Vulcan argued further that no formal tender of the defense was necessary in order to trigger the duty to defend. Vulcan also argued that the fact that the underlying actions had been settled, so there was no ongoing defense obligation, should have no bearing on the proper interpretation of the policy with respect to the duty to defend. Vulcan requested "clarification" of the court's ruling in these regards.
4. Petition for Writ of Mandate and Subsequent Events
Vulcan petitioned this court for a writ of mandate, challenging the order of April 9, 2009. We determined that the matter deserved immediate appellate review and issued an order to show cause.
Transport filed an opposition to Vulcan's request for clarification after the petition for writ of mandate was filed. The trial court stated, in a status conference on May 12, 2009, that it would not modify its prior order. The court stated further in a "Status Conference Agenda" served on that same date, (1) "The Court views the scope of the SIR as defined by the terms of the policy, including the terms of the self-retention agreement" and (2) "The Court's interpretation [of] `within the terms of coverage of this insurance' is based on the policy language and the fact that defense costs claimed are `fixed' by virtue of the settlement of the underlying City of Modesto cases, and further that there is no continuing and present duty to defend issue present in this case."
CONTENTIONS
Vulcan contends (1) the duty to defend in clause (1) relates to the policy's umbrella coverage and extends to suits that are potentially covered under the *688 Transport policy, so Vulcan need not show that a suit is actually covered in order to trigger a duty to defend; (2) the term "underlying insurance" as used in clause (1) includes only the underlying policies listed in Schedule A, rather than all primary policies in effect during the period of a continuous loss; and (3) the duty to defend in clause (1) does not depend on the exhaustion of any underlying insurance, so principles of horizontal exhaustion are inapplicable.
DISCUSSION
1. Rules of Policy Interpretation
(2) We interpret an insurance policy using the same rules of interpretation applicable to other contracts. (Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 390 [33 Cal.Rptr.3d 562, 118 P.3d 589] (Powerine).) Our goal is to give effect to the mutual intention of the contracting parties at the time the contract was formed. (Civ. Code, § 1636; Powerine, supra, at p. 390.) We ascertain that intention solely from the written contract if possible, but also consider the circumstances under which the contract was made and the matter to which it relates. (Civ. Code, §§ 1639, 1647.) We consider the contract as a whole and interpret its language in context so as to give effect to each provision, rather than interpret contractual language in isolation. (Id., § 1641.) We interpret words in accordance with their ordinary and popular sense, unless the words are used in a technical sense or a special meaning is given to them by usage. (Id., § 1644.) If contractual language is clear and explicit and does not involve an absurdity, the plain meaning governs. (Id., § 1638.)
(3) "Policy language is ambiguous if it is susceptible of more than one reasonable interpretation in the context of the policy as a whole. [Citation.] Whether policy language is ambiguous is a question of law that we review de novo. [Citations.] Any ambiguity must be resolved in a manner consistent with the objectively reasonable expectations of the insured in light of the nature and kind of risks covered by the policy. [Citation.]" (State Farm General Ins. Co. v. Mintarsih (2009) 175 Cal.App.4th 274, 283 [95 Cal.Rptr.3d 845].) Moreover, any provision that limits coverage reasonably expected by the insured under the policy terms must be conspicuous, plain and clear to be effective. (Haynes v. Farmers Ins. Exchange (2004) 32 Cal.4th 1198, 1204 [13 Cal.Rptr.3d 68, 89 P.3d 381] (Haynes); Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 272-273 [54 Cal.Rptr. 104, 419 P.2d 168] (Gray).) Contract interpretation, including the resolution of any ambiguity, is solely a judicial function, unless the interpretation turns on the credibility of extrinsic evidence. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839].)
*689 2. Primary, Excess and Umbrella Coverage
(4) Primary insurance provides coverage immediately upon the occurrence of a loss or an event giving rise to liability, while excess insurance provides coverage only upon the exhaustion of specified primary insurance. (Century Surety Co. v. United Pacific Ins. Co. (2003) 109 Cal.App.4th 1246, 1255 [135 Cal.Rptr.2d 879].) Insurance policies sometimes include both excess and umbrella insurance. Umbrella insurance provides coverage for claims that are not covered by the underlying primary insurance. (Powerine, supra, 37 Cal.4th at p. 398, fn. 9.) An umbrella insurer "drops down" to provide primary coverage in those circumstances. (Id. at p. 398 & fn. 9; Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 812 [180 Cal.Rptr. 628, 640 P.2d 764].) Thus, a policy that provides both excess and umbrella insurance provides both excess and primary coverage. The policy issued by Transport was such a policy.
3. Transport's Policy Provides Both Excess and Primary Umbrella Defense Coverage but Transport's Indemnity Liability is Subject to a Defined "Retained Limit"
a. Analysis of Policy Provisions
The policy's insuring agreement stated that Transport would indemnify Vulcan against liability for damages in excess of the "retained limit." That term was defined, for purposes of the indemnity obligation, as the greater of the limits of liability in "the underlying insurance listed in Schedule A . . . plus the applicable limits of any other underlying insurance collectible by the Insured" (clause (a)) or the amount (i.e., $100,000) specified in the declarations as to Vulcan's liability "not within the terms of the coverage of the underlying insurance listed in Schedule A" (clause (b)). In our view, the most reasonable reading of clause (a) and clause (b), when considered in light of the entire policy, and absent extrinsic evidence to the contrary, suggests that Transport has no indemnity obligation unless and until all underlying insurance has been exhausted or if there is no coverage for the claim under any of the Schedule A policies, and the total policy limits of all "other" collectible underlying insurance does not exceed $100,000, then Transport's indemnity obligation shall be limited to amounts in excess of $100,000. In other words, the share of the liability for any particular claim covered under Transport's policy for which Vulcan will have to look to other insurance or its own resources will never be less than $100,000. The extent of Transport's indemnity obligation, however, is not presently the issue before us. It is the nature of Transport's duty to defend that has been presented for resolution in this proceeding.
*690 With respect to the defense obligation, the policy stated, in clause (1), that Transport had the duty to defend any suit against Vulcan seeking damages for "personal injury, property damage or advertising injury not within the terms of the coverage of underlying insurance but within the terms of coverage of this insurance" (clause (1)). Alternatively, the insuring agreement provided, in clause (2), that in the event the conditions specified in clause (1) did not exist, then Transport's defense duty would not arise until "the limits of liability of the underlying insurance are exhausted because of personal injury, property damage or advertising injury during the period of this policy." Thus, if clause (1) did not apply to a particular claim, then, under clause (2), Transport's duty to defend with respect to that claim would not be triggered until the exhaustion of the underlying insurance. If clause (1) did apply to a particular claim, however, then Transport's defense duty would be triggered and clause (2) would have no application with respect to that claim.
The problem is that the term "underlying insurance" is not defined and, unlike in clause (a) and clause (b), the term is not qualified in any way in either clause (1) or clause (2). We must therefore resolve the question as to what is meant by the unqualified use of that term in clause (1).
b. The Term "Underlying Insurance" As Used in Clause (1) is Ambiguous and Must Be Construed in Accordance with Vulcan's Objectively Reasonable Expectations
Clause (1) referred to "underlying insurance" without qualification. The same is true of clause (2), the declarations page and "Item 3" (identified in the policy's declarations and referred to in the "retained limit" provision of the policy). In contrast, clause (a) of the "retained limit" provision referred more explicitly to "the underlying insurance listed in Schedule A hereof, plus the applicable limits of any other underlying insurance collectible by the Insured," and clause (b) of that provision qualified its reference to "the underlying insurance" by limiting it to the policies "listed in Schedule A." As already noted, Schedule A was also entitled "Schedule of Underlying Insurance."
That both clause (a) and clause (b) expressly qualified the term "underlying insurance," but clause (1) and clause (2) did not, suggests that the term "underlying insurance" as used in the policy should be considered a generic term that, absent an explicit qualification, is neither limited to the underlying insurance listed in Schedule A nor encompasses all underlying insurance. This creates an ambiguity as to the meaning of the unqualified term "underlying insurance."
*691 We resolve that ambiguity in favor of the objectively reasonable expectations of the insured. The very existence of a Schedule of Underlying Insurance suggests that the unqualified term "underlying insurance" refers to that schedule. Schedule A was the underlying insurance that was specifically disclosed and identified by the parties as the insurance which would be utilized in the calculation of the "retained limit" under clause (a) unless none of those specified policies covered the particular claim; and in clause (b), it was the absence of any coverage under the Schedule A policies that was necessary to potentially trigger application of the $100,000 minimum for the "retained limit" calculation.
Reading clause (1) in the context of the policy as a whole, we find that it was objectively reasonable for Vulcan to conclude that the unqualified term "underlying insurance," as used in that clause, referred to the policy's Schedule of Underlying Insurance. We therefore hold that the term "underlying insurance," as used in clause (1), absent contrary extrinsic evidence,[7] encompasses only the policies listed in Schedule A.
c. The Defense Obligation Imposed by Clause (1) Constitutes Primary Coverage
The language "not within the terms of the coverage of underlying insurance" in clause (1), in our view, refers to the fact of coverage under the policy rather than the limits of Transport's liability. In other words, if the underlying insurance listed in Schedule A provided no coverage for a particular claim (as distinguished from coverage that had been exhausted), and the claim was within the scope of coverage of the Transport policy, then a defense for that claim would be provided. The language in clause (1) "not within the terms of the coverage of underlying insurance" differs markedly from the language in clause (2) "[i]f limits of liability of the underlying insurance are exhausted." Given the disjunctive relationship between clause (1) and clause (2), it is clear that, with respect to any particular claim, they are necessarily mutually exclusive. Thus, we conclude that if clause *692 (1) triggers Transport's defense obligation that obligation is not limited by a predicate requirement for the exhaustion of other insurance.[8] Clause (1) provided defense coverage for claims if the underlying insurance provided no coverage, so clause (1) provided umbrella coverage. This umbrella coverage constituted primary coverage.[9]
4. The Rules Regarding a Duty to Defend in Connection with Primary Coverage Apply to Primary Umbrella Coverage
As we have explained, the Transport policy expressly provided a duty to defend in connection with both the umbrella coverage (clause (1)) and the excess coverage (clause (2)). The policy did not anywhere state that the duty to defend under clause (1) was limited in any manner by the "retained limit" provision in the policy, which appears to govern only the scope of Transport's indemnity obligation. Clause (1) established a duty to defend in connection with the umbrella coverage. Because the umbrella coverage provided by that clause was primary rather than excess, the ordinary rules regarding a duty to defend in connection with primary liability coverage apply.
(5) A duty to defend arises if facts alleged in the complaint, or other facts known to the insurer, potentially could give rise to coverage under the policy. (Scottsdale Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643, 654-655 [31 Cal.Rptr.3d 147, 115 P.3d 460] (Scottsdale); Gray, supra, 65 Cal.2d at pp. 275-277.) The facts need only "raise the possibility" that the insured will be held liable for covered damages. (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 304 [24 Cal.Rptr.2d 467, 861 P.2d 1153] (Montrose).) The insurer has a duty to defend even if the claims against the insured are "`groundless, false, or fraudulent.'"[10] (Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1086 [17 Cal.Rptr.2d 210, 846 P.2d 792].) "Any doubt as to whether the facts establish the existence of the defense duty must be resolved in the insured's favor." (Montrose, supra, at pp. 299-300.)
*693 "A duty to defend arises upon the tender to the insurer of a potentially covered claim and continues until the lawsuit is concluded or until the insurer shows that facts extrinsic to the third party complaint conclusively negate the potential for coverage. [Citations.] If a duty to defend arises, the insurer must defend the action in its entirety, including claims that are not potentially covered. [Citation.] If a duty to defend arises by virtue of the existence of a potential for coverage but is later extinguished, it is extinguished prospectively only, and not retroactively. [Citation.]" (GGIS Ins. Services, Inc. v. Superior Court (2008) 168 Cal.App.4th 1493, 1505 [86 Cal.Rptr.3d 515].) Thus, the fact that the underlying actions were settled has no impact on the existence of a duty to defend if such a duty arose before the settlements.
"If any facts stated or fairly inferable in the complaint, or otherwise known or discovered by the insurer, suggest a claim potentially covered by the policy, the insurer's duty to defend arises and is not extinguished until the insurer negates all facts suggesting potential coverage. On the other hand, if, as a matter of law, neither the complaint nor the known extrinsic facts indicate any basis for potential coverage, the duty to defend does not arise in the first instance." (Scottsdale, supra, 36 Cal.4th at p. 655.)
We hold that these principles are fully applicable to the umbrella defense coverage provided by the Transport policy. The application of these rules to this case makes it clear that Vulcan need not show that a claim was actually covered by the policy in order to establish a duty to defend with respect to the umbrella coverage. Instead, Transport had a duty to defend under clause (1) if any claim was potentially covered by its policy but was not within the terms of coverage of "underlying insurance" which, as we have explained, meant those underlying policies identified in Schedule A.
The trial court apparently interpreted the language "within the terms of coverage of this insurance" in clause (1) to mean "within the terms of excess coverage of this insurance," so the defense obligation under that clause could apply only upon the exhaustion of all underlying insurance. But clause (2) established the defense obligation with respect to the excess coverage. Adoption of the trial court's interpretation of clause (1) would make the duty to defend with respect to the umbrella coverage coextensive with the duty to defend with respect to the excess coverage. Such an interpretation would render clause (1) surplusage and effectively negate the duty to defend with respect to the umbrella coverage.[11] Accordingly, we conclude that the construction of the policy adopted by the trial court was incorrect.
*694 5. The "Retained Limit" Provision Does Not Limit Transport's Duty to Defend
(6) Transport contends City of Oxnard v. Twin City Fire Ins. Co. (1995) 37 Cal.App.4th 1072 [44 Cal.Rptr.2d 177] (City of Oxnard) and General Star Indemnity Co. v. Superior Court (1996) 47 Cal.App.4th 1586 [55 Cal.Rptr.2d 322] (General Star) establish a rule that an insurer has no duty to defend until the insured has become legally obligated to pay an amount in excess of any self-insured retention in the policy. In our view, there is no such general rule that is applicable without regard to the particular provisions of the policy. Instead, the impact of a policy reference to a "self-insured retention" or "retained limit" on the duty to defend will depend on the language of a particular policy.
A "self-insured retention," or "retained limit," generally refers to the amount of a loss or liability that the insured agrees to bear before coverage can arise under the policy. Although a self-insured retention ordinarily differs from a deductible in some respects, the term "self-insured retention" or "retained limit" in an insurance policy can reasonably connote to the insured no more than what is expressly stated in the policy.[12] In other words, these terms alone are not sufficient to convey to an unsophisticated insured an understanding of what an insurance expert or attorney might believe to be the essence of a self-insured retention. Any limitation on coverage otherwise available under the policy "must be stated precisely and understandably, in words that are part of the working vocabulary of the average layperson. [Citation.]" (Haynes, supra, 32 Cal.4th at p. 1204.)
City of Oxnard, supra, 37 Cal.App.4th 1072, involved two policies that "expressly stated that only `excess' insurance was being provided, and such coverage was only available after [the insured] became legally obligated for a loss in excess of its retained limit or SIR." (Id. at p. 1075.) City of Oxnard stated, "Both policies contained numerous, unambiguous references to the nature of the instant coverage as excess insurance. Also, by the very nature of these policies wherein Oxnard agreed to insure itself for certain amounts, it *695 expressly agreed to act as its own primary insurer under those retained limits. [Citation.]" (Id. at p. 1077.) The opinion did not quote the policy language in this regard, so it is not clear in what manner, if at all, that language differed from the typical self-insured retention provision promising coverage for amounts "in excess of" the retained limit, or whether the policies expressly stated that the insurers had no duty to defend unless the self-insured retention was exhausted. City of Oxnard stated that an excess insurer has no duty to defend unless the primary insurance is exhausted, and that the insurers therefore had no duty to defend because the liability did not exceed the retained limit. (Id. at pp. 1077-1078.)
General Star, supra, 47 Cal.App.4th 1586, involved a policy with standard commercial general liability forms and a self-insured retention endorsement stating that the limits of liability set forth in the policy declarations "`shall apply in excess of your Self-Insured Retention.'" (Id. at p. 1590.) The endorsement expressly stated that the insurer had no duty to defend unless the retained limit was exhausted. (Ibid.) General Star stated that the endorsement "effectively transforms the policy from a primary policy into an excess policy covering only amounts in excess of the $100,000 self-insured retention. [Citation.]" (Id. at p. 1593.) General Star stated that City of Oxnard, supra, 37 Cal.App.4th 1072, "is on point" and that "Oxnard had policies excess of SIR's by which Oxnard agreed to insure itself up to the level of the SIR." (General Star, supra, at p. 1593.) General Star stated that City of Oxnard held that the insurer had no duty to defend because the "`primary coverage'" of the self-insured retention was not exhausted. (General Star, supra, at p. 1593.) General Star also stated that the plain language of the endorsement at issue precluded any duty to defend unless the self-insured retention was exhausted. (Id. at p. 1594.)
(7) It is well settled that an excess insurer has no duty to defend unless the underlying primary insurance is exhausted, absent policy language to the contrary. (Signal Companies, Inc. v. Harbor Ins. Co. (1980) 27 Cal.3d 359, 368-369 [165 Cal.Rptr. 799, 612 P.2d 889]; Community Redevelopment Agency v. Aetna Casualty & Surety Co. (1996) 50 Cal.App.4th 329, 338 [57 Cal.Rptr.2d 755].) One of the reasons for this rule is that the defense obligation falls on the primary insurer, whose greater premium reflects that risk. (Signal, supra, at p. 365.) "[I]t is unnecessary to impose an immediate duty to defend on the excess carrier to afford the insured that to which it is entitled, namely, the full protection of a defense on its behalf." (Id. at p. 367.) Another reason for the rule is that, absent policy language to the contrary, the insured could have no reasonable expectation that an excess insurer would provide a defense before the primary insurance is exhausted. (Id. at p. 369.)
*696 These reasons, however, do not justify extending the rule that an excess insurer has no duty to defend unless the underlying primary insurance is exhausted to insurers who provide primary umbrella coverage with a self-insured retention, absent clear policy language so providing. So-called "self-insurance" is no insurance and affords the insured no protection at all. (Aerojet-General Corp. v. Transport Indemnity Co. (1997) 17 Cal.4th 38, 72, fn. 20 [70 Cal.Rptr.2d 118, 948 P.2d 909].)[13] To require the exhaustion of a self-insured retention before an insurer will have a duty to defend would not ensure that the defense obligation rests on the insurer receiving premiums for that risk, but instead would result in no insurer providing a defense prior to exhaustion. Moreover, in the absence of clear policy language so providing, to require the exhaustion of a self-insured retention before an insurer will have a duty to defend would be contrary to the reasonable expectations of the insured to be provided an immediate defense in connection with its primary coverage. If, under the terms of the policy, the insured would have a reasonable expectation that the insurer would provide a defense, any limitation on the insurer's defense obligation must be conspicuous, plain and clear. (Haynes, supra, 32 Cal.4th at p. 1204; Gray, supra, 65 Cal.2d at pp. 272-273.)
Montgomery Ward & Co. v. Imperial Casualty & Indemnity Co. (2000) 81 Cal.App.4th 356 [97 Cal.Rptr.2d 44] (Montgomery Ward) is instructive. Montgomery Ward involved several successive comprehensive general liability policies with self-insured retentions. Montgomery Ward held that principles of horizontal exhaustion did not apply to the self-insured retentions, meaning that all of the self-insured retentions applicable during the period of a continuous loss need not be exhausted before coverage could arise under *697 the policies. (Id. at pp. 364-370.) Distinguishing the policy language at issue from that in General Star, supra, 47 Cal.App.4th 1586, and City of Oxnard, supra, 37 Cal.App.4th 1072, Montgomery Ward concluded that the policies at issue were not excess policies and that the self-insured retentions were not primary insurance for purposes of the horizontal exhaustion rule. (Id. at pp. 365-368.)
Montgomery Ward also discussed the duty to defend with respect to one of the insurers, and held that the self-insured retention in that insurer's policy was not primary insurance for purposes of the duty to defend. (Montgomery Ward, supra, 81 Cal.App.4th at pp. 373-375.) The policy expressly stated that the insurer had a duty to defend any claim within the coverage of the policy where such claim was not covered by any underlying insurance. (Id. at pp. 373-374.) Montgomery Ward interpreted this provision to mean that the duty to defend was not limited by the self-insured retention and that the insurer owed a "first dollar" duty to defend. (Id. at p. 374.) Montgomery Ward stated that to the extent that there was any ambiguity in the policy language regarding the defense duty, the ambiguity should be resolved in favor of the insured. (Id. at p. 375.)
Clause (1) expressly stated that Transport had a duty to defend claims that were not within the coverage of "underlying insurance" but were within the coverage of the Transport policy. The Transport policy limited the indemnity duty to amounts in excess of the retained limit, but did not state that the duty to defend was limited by the retained limit in any manner. Absent such an express limitation on the duty to defend, we conclude that the duty to defend was not so limited.
6. Horizontal Exhaustion
(8) "Horizontal exhaustion" refers to the exhaustion of all insurance policies providing the same level of coverage. (Community Redevelopment Agency v. Aetna Casualty & Surety Co., supra, 50 Cal.App.4th at p. 339.) Principles of horizontal exhaustion are inapplicable under clause (1) because Transport's duty to defend under that provision did not depend on the exhaustion of underlying insurance, as we have explained. To the extent that the trial court concluded to the contrary, it erred.
*698 DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue directing the trial court to vacate its order of April 9, 2009, and conduct further proceedings consistent with the views expressed in this opinion. Vulcan shall recover its costs in these appellate proceedings.
Klein, P.J., and Aldrich, J., concurred.
NOTES
[1] We have italicized certain provisions of the policy. We have done so for purposes of clarity and to highlight the policy language that is at the heart of our analysis of the rights and obligations of the parties.
[2] We will refer to these two numbered clauses, respectively, as clause (1) and clause (2).
[3] We will refer to the first lettered clause above as clause (a) and the second as clause (b).
[4] Whether Vulcan actually "tendered" defense of the City of Modesto litigation to Transport is apparently a disputed issue that will be resolved upon remand.
[5] We judicially notice the complaint filed by Transport on January 31, 2005, in Los Angeles Superior Court case No. BC328022. (Evid. Code, § 452, subd. (d).)
[6] We judicially notice the complaint filed by First State Insurance Company and Nutmeg Insurance Company on June 28, 2006, in Los Angeles Superior Court case No. BC354664. (Evid. Code, § 452, subd. (d).)
[7] The parties, in their joint stipulation, stated that the three questions presented to the trial court involved "threshold legal issues." They presented no extrinsic evidence to assist in interpreting the language of Transport's policy and neither expressly waived the right to present extrinsic evidence in further proceedings nor expressly reserved the right to do so. We need not decide whether they waived or preserved the right to present extrinsic evidence in further proceedings in the trial court. Instead, that court should, in the first instance, decide the question and, if it decides to consider extrinsic evidence, should interpret the policy in light of that evidence.
[8] Our holding that the existence of a duty to defend under clause (1) did not depend on the exhaustion of underlying insurance also compels the conclusion that the duty to defend under clause (1) did not depend on the exhaustion of any self-insured retentions in the underlying policies.
[9] The "other insurance" provision expressly contemplated that the coverage provided under the Transport policy could be primary coverage (i.e., "primary, excess or contingent"). An "other insurance" clause necessarily presupposes the existence of coverage under the policy at the same level as some "other insurance." As the umbrella coverage was the only coverage that could be characterized as primary, the wording of this clause gives further support to our conclusion.
[10] The policy here expressly stated that Transport had a duty to defend "even if any of the allegations of the suit are groundless, false or fraudulent."
[11] Transport argues that there can be no umbrella coverage and therefore no duty to defend under clause (1) if the amount under clause (a) is greater than the amount under clause (b) (i.e., $100,000). We disagree. In our view, the "retained limit" provision determines only the amount of "ultimate net loss" that Vulcan must bear before Transport's indemnity obligation can arise under the policy. This is an objectively reasonable interpretation, absent extrinsic evidence to the contrary, and we must resolve any ambiguity in this regard in favor of the objectively reasonable expectations of the insured. (Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857, 869 [77 Cal.Rptr.2d 107, 959 P.2d 265].) Thus, regardless of whether the amount under clause (a) or the amount under clause (b) is greater, clause (1) alone determines the existence and scope of Transport's umbrella defense coverage obligation.
[12] In our view, a true "self-insured retention," expressly limits the duty to indemnify to liability in excess of a specified amount and expressly precludes any duty to defend until the insured has actually paid the specified amount. (See Padilla Construction Co., Inc. v. Transportation Ins. Co. (2007) 150 Cal.App.4th 984, 993 [58 Cal.Rptr.3d 807].)
[13] Courts have held, in many contexts, that self-insurance is not insurance (or that a "self-insurer" is not an insurer). For example, Aerojet-General Corp. v. Transport Indemnity Co. supra, 17 Cal.4th at page 72 and footnote 20, noted that self-insurance in the form of a "fronting" policy is not insurance for purposes of equitable contribution. Chambi v. Regents of University of California (2002) 95 Cal.App.4th 822, 825-827 [116 Cal.Rptr.2d 50], held that a self-insured employer was not an insurer for purposes of the requirement under Business and Professions Code section 801 that an insurer obtain the insured's consent before settling certain claims. California Pacific Homes, Inc. v. Scottsdale Ins. Co. (1999) 70 Cal.App.4th 1187, 1193-1195 [83 Cal.Rptr.2d 328], held that self-insured retentions during the period of a continuous loss were not primary insurance that must be exhausted before the insurers could have a duty to indemnify. County of San Bernardino v. Pacific Indemnity Co. (1997) 56 Cal.App.4th 666, 689-691 [65 Cal.Rptr.2d 657], held that a self-insured county was not an insurer for purposes of the apportionment of defense costs. Truck Ins. Exchange v. Amoco Corp. (1995) 35 Cal.App.4th 814, 827-828 [41 Cal.Rptr.2d 551], held that the parent of a self-insured subsidiary was not an insurer for purposes of a contribution action by an insurer. Richardson v. GAB Business Services, Inc. (1984) 161 Cal.App.3d 519, 522-525 [207 Cal.Rptr. 519], held that a self-insured was not an insurer for purposes of unfair settlement practices liability. Metro U.S. Services, Inc. v. City of Los Angeles (1979) 96 Cal.App.3d 678, 681-684 [158 Cal.Rptr. 207], held that a self-insured city was not an automobile liability insurer for purposes of Insurance Code section 11580.9. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264154/ | 479 F.Supp. 519 (1979)
UNITED STATES of America, Plaintiff,
v.
TSUDA MARU, and her fishing gear, furniture, appurtenances, stores, fish, and cargo, Defendant,
and
Hoko Fishing Company, Ltd., Claimant.
Civ. No. A79-031.
United States District Court, D. Alaska.
November 1, 1979.
*520 Alexander O. Bryner, U. S. Atty. for Alaska by Dan E. Dennis, Asst. U. S. Atty., Anchorage, Alaska, for plaintiff.
John H. Bradbury, Anchorage, Alaska, for claimant and defendant.
MEMORANDUM AND ORDER
VON DER HEYDT, Chief Judge.
THIS CAUSE comes before the court on claimant's motion for a declaratory judgment that the Fishery Conservation and Management Act of 1976 (FCMA), 16 U.S.C. §§ 1801-82 (1976), violates the equal protection component of the Fifth Amendment of the U.S. Constitution because the FCMA discriminates against aliens. The facts of this case are described at length in a previous opinion. United States v. Tsuda Maru, 470 F.Supp. 1223 (D.Alaska 1979), and thus will not be reiterated here.
The FCMA asserts United States' jurisdiction for the purpose of managing fisheries resources over a zone contiguous to the territorial sea and extending seaward for 200 miles. 16 U.S.C. § 1811. The FCMA establishes two classes of fishing, fishing by vessels of the United States and fishing by vessels other than vessels of the United States. 16 U.S.C. § 1802(12), (25). Foreign fishing, i. e., fishing by vessels other than vessels of the United States, is not authorized unless the vessel's nation has entered into a governing international fishery agreement with the United States and the vessel has been issued a permit by the Secretary of Commerce. 16 U.S.C. § 1821(a), (b). The FCMA requires every such international agreement to acknowledge the exclusive fishery management authority of the United States. 16 U.S.C. § 1821(c). United States v. Tsuda Maru, 470 F.Supp. at 1227.
The equal protection challenge in this case is a novel one and somewhat difficult to analyze because of the unique nature of the fishery conservation zone, a zone beyond the territorial boundaries of the United States where the United States asserts jurisdiction for the limited purpose of conserving and managing fisheries. Adding to the complexities of the case are the U.S. Supreme Court's pronouncements that the equal protection component of the due process clause, and especially the equal protection doctrine protecting aliens, is not completely coextensive with the equal protection clause of the Fourteenth Amendment. Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976). But see Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975).
At the threshold[1] the United States argues that the distinction drawn by the *521 FCMA is not along alienage lines but is determined by the documentation of the vessel. The court agrees with the claimant that the substantive effect of the definition of foreign fishing in the FCMA is to apply to aliens a regulatory scheme not generally applied to citizens because a foreign owned vessel cannot be documented as a United States vessel. 46 U.S.C. § 11. That the Act discriminates[2] against aliens is evidenced by the structure of the Act and the policy statements in the Act itself. 16 U.S.C. § 1801(a)(3), (7), § 1801(b)(3), (6). The Congress made a specific finding that "[a] national program for development of fisheries which are underutilized or not utilized by United States fishermen, including bottom fish off Alaska, is necessary to assure that our citizens benefit from the employment, food supply, and revenue which could be generated thereby." 16 U.S.C. § 1801(a)(7). (emphasis added). The legislative history contains many expressions of the intent of the Congressional supporters to promote domestic fishing by regulating, reducing and in some cases eliminating foreign fishing in the zone. House Rep.No.445, 94th Cong., 2nd Sess. as reprinted in 2 U.S.Code, Congressional and Administrative News, p. 593 (1976). Many supporters of the Act would no doubt be very disappointed if the Act did not have the effect of discriminating against aliens fishing within the 200 mile limit. These expressions of purpose and intent meet the "purposeful discrimination" test found in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) and Village of Arlington Heights v. Metropolitan Housing Developmental Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). The constitutionality of the FCMA cannot be sustained by allowing the government to play semantic games with the Act's provisions, but is dependent on whether the doctrine protecting aliens against discrimination has any applicability to the case before this court.
The court holds that the equal protection doctrine limiting the use of alienage classifications was not a bar to the enactment by Congress of the FCMA for two reasons. First, the underlying rationale of the doctrine limits its applicability to persons who have been admitted for permanent residence under the immigration laws. Second, the doctrine limiting alienage classifications does not apply when Congress exercises its powers in the area of immigration, naturalization, foreign policy and related areas.
The numerous cases which have struck down alienage classifications have all involved resident aliens.[3]Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Takahashi v. Fish & Game Comm'n., 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976); Examining Board v. Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976); Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977). These cases have often emphasized that resident aliens live in American communities, must obey our laws, pay taxes, serve in the armed forces, and have made significant contributions to our country. In re Griffiths, 413 *522 U.S. at 722, 93 S.Ct. 2851; Sugarman v. Dougall, 413 U.S. at 645, 93 S.Ct. 2842; Graham v. Richardson, 403 U.S. at 376, 91 S.Ct. 1849. It is the burdens which resident aliens bear along with citizens that make absolute bars to aliens qualifying for work and educational opportunities so irrational. Resident aliens are in many respects just like citizens,[4] and classifications which disadvantage them will usually be subjected to strict judicial scrutiny. But see, Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979); Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978).[5] The philosophical and legal support for the doctrine is completely absent when a case involves a non-resident alien.
The claimant relies on Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950) and Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896) in urging the court to apply this doctrine to non-resident aliens. In Wong Yang Sung the Court held that an illegal alien must be given a fair hearing before he can be deported. The Court based its decision in part on constitutional considerations. 339 U.S. at 50-51, 70 S.Ct. 445. Wong Wing held that an illegal alien had a right to a jury trial. These cases simply stand for the proposition that all persons, illegal aliens included, have basic constitutional rights. They do not support the argument that the equal protection doctrine protecting resident aliens has relevance to non-resident aliens.
As a second reason for denying the claimant's motion, the court holds that the equal protection doctrine limiting alienage classifications does not apply to Congressional exercise of powers relating to foreign policy or immigration and naturalization. The doctrine simply makes no sense in that context because drawing distinctions between aliens and citizens is inherent to immigration policy and the conduct of foreign relations. In Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) the Court upheld a classification in the Immigration and Nationality Act of 1952 that was based on gender and legitimacy. Although the Court has shown little tolerance for such classifications, see e. g. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the Court upheld the statute because of the almost plenary power that the Congress has in immigration matters. The Court said:
*523 This Court has repeatedly emphasized that "over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 [29 S.Ct. 671, 676, 53 L.Ed. 1013] (1909); accord, Kleindienst v. Mandel, 408 U.S. 753, 766 [92 S.Ct. 2576, 2583, 33 L.Ed.2d 683] (1972). Our cases "have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. Mezei, 345 U.S. 206, 210 [73 S.Ct. 625, 628, 97 L.Ed. 956] (1953); see, e. g., Harisiades v. Shaughnessy, 342 U.S. 580 [72 S.Ct. 512, 96 L.Ed. 586] (1952); Lem Moon Sing v. United States, 158 U.S. 538 [15 S.Ct. 967, 39 L.Ed. 1082] (1895); Fong Yue Ting v. United States, 149 U.S. 698 [13 S.Ct. 1016, 37 L.Ed. 905] (1893); The Chinese Exclusion Case, 130 U.S. 581 [9 S.Ct. 623, 32 L.Ed. 1068] (1889). Our recent decisions have not departed from this long-established rule. Just last Term, for example, the Court had occasion to note that "the power over aliens is of a political character and therefore subject only to narrow judicial review." Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n. 21 [96 S.Ct. 1895, 1904-1905, 48 L.Ed.2d 495] (1976), citing Fong Yue Ting v. United States, supra [49 U.S.] at 713 [13 S.Ct., at 1022]; accord, Mathews v. Diaz, 426 U.S. 67, 81-82 [96 S.Ct. 1883, 1892, 48 L.Ed.2d 478] (1976). And we observed recently that in the exercise of its broad power over immigration and naturalization, "Congress regularly makes rules that would be unacceptable if applied to citizens." Id. [426 U.S.], at 80 [96 S.Ct., at 1891].
Fiallo v. Bell, 430 U.S. at 792, 97 S.Ct. at 1478. (footnote omitted)
The FCMA is not immigration legislation but it does involve a unique assertion of jurisdiction over the sea beyond the territory of the United States and is directly related to international relations. This is emphasized by the discussion of the Law of the Sea Conference found in the legislative history. House Rep.No.445, 94th Cong., 2nd Sess., as reprinted in 2 U.S.Code, Congressional and Administrative News, pp. 593, 596-602 (1976). The Fifth Amendment equal protection doctrine does not prohibit the Congress from distinguishing between citizens and aliens in the exercise of powers relating to foreign policy and to Congress' power to place conditions on the entry of aliens into special jurisdictional zones such as the conservation zone. If the Congress could not draw such lines between citizens and non-citizens it is difficult to imagine how the country could conduct foreign relations.
Accordingly IT IS ORDERED:
THAT claimant's motion for a declaratory judgment that the Fishery Conservation and Management Act is unconstitutional because it discriminates against aliens is denied.
NOTES
[1] Although the Government has not challenged the standing of the claimant, a foreign corporation, to challenge a statute on the ground that it unconstitutionally discriminates against aliens, the court has had that issue briefed and has examined it on its own motion. The court has determined that the corporation has standing to make this challenge. The corporation is clearly injured by the burden placed on foreign fishing and although the corporation is not an alien it has a special relationship with its alien shareholders so as to give it standing to make this claim. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). In NAACP v. Alabama, 357 U.S. 449, 458-60, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) the Court said, "We think that petitioner argues more appropriately the rights of its members, and its nexus with them is sufficient to permit that it act as their representative before this Court."
[2] It should be emphasized, as the rest of the memorandum makes clear, that the court is not using the term "discriminates" here in its constitutional sense of "invidious" or "odious" discrimination. The court is only recognizing the fact that the Act intentionally draws a distinction between aliens and citizens.
[3] See 8 U.S.C. § 1427 (1976).
[4] A different question would be presented to the court if the complaining party was a resident alien prevented from fishing in the conservation zone.
[5] One commentator has seen the Ambach and Foley cases as a retreat from strict scrutiny of state alienage classifications. Ambach upheld a state law excluding aliens who have not declared their intent to become citizens from serving as public school teachers. Foley upheld a state law excluding aliens from serving as state troopers.
Although the Court purported to distinguish prior decisions applying strict scrutiny, these difficulties in reconciling Foley with those decisions suggest that the Court may proceed to limit them to their facts and henceforth may subject all discrimination against aliens to only minimal review. Aspects of both the majority opinion and Justice Stewart's concurrence underscore this possibility. The majority emphasized that the laws invalidated in prior decisions "struck at the noncitizens' ability to exist in the community" and were therefore "seemingly inconsistent with the congressional determination to admit the alien to permanent residence." 435 U.S. at 295 [98 S.Ct. 1067]. In fact, only Graham itself had invoked federal preemption as an alternative rationale, 403 U.S. at 376-80 [91 S.Ct. 1848]; the subsequent decisions rested solely on equal protection. By exaggerating the reliance on preemption in previous cases, the majority was apparently attempting to minimize the equal protection significance of those cases. In his brief concurring opinion, Justice Stewart went out of his way to declare the instant decision "difficult if not impossible to reconcile . . . with . . . the reasoning and authority of some of our past decisions," 435 U.S. at 300 [98 S.Ct. 1067] (Stewart, J., concurring). He joined the Court's opinion only because he had become "increasingly doubtful about the validity of those decisions," id.
Note, A Dual Standard for State Discrimination Against Aliens, 92 Harv.L.Rev. 1516, 1521 n. 34 (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264194/ | 886 A.2d 391 (2005)
276 Conn. 377
Beverly L. GRIMM
v.
Robert L. GRIMM.
Nos. 17212, 17213.
Supreme Court of Connecticut.
Argued September 22, 2005.
Decided December 13, 2005.
*392 Thomas Puccio, pro hac vice, with whom were John Wayne Fox and, on the brief, Patricia M. Gaug, Stamford, for the appellant in Docket No. SC 17212, appellee in Docket No. SC 17213 (defendant).
Norman A. Roberts II, with whom, on the brief, was Gaetano Ferro, New Canaan, for the appellee in Docket No. SC 17212, appellant in Docket No. SC 17213 (plaintiff).
BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.
NORCOTT, J.
In this case, we confront procedurally dysfunctional matrimonial litigation as both parties appeal from the judgment of the Appellate Court in Grimm v. Grimm, 82 Conn.App. 41, 844 A.2d 855 (2004). The defendant, Robert L. Grimm, appeals, following our grant of his petition for certification,[1] from the judgment of the Appellate Court affirming the trial court's financial orders in favor of the plaintiff, Beverly L. Grimm. The plaintiff also appeals, following our grant of her conditional cross petition for certification,[2] from the judgment *393 of the Appellate Court reversing the trial court's award to her of attorney's fees. We affirm the judgment of the Appellate Court with respect to the financial orders, albeit on the alternate grounds that the record was inadequate for appellate review and the defendant's claim was abandoned because of inadequate briefing. We reverse the judgment of the Appellate Court with respect to the counsel fee award because that award was not an abuse of the trial court's discretion.
The Appellate Court decision in this case reveals the following background facts and procedural history. "The parties first separated in 1988, and the plaintiff ... commenced divorce proceedings in Ohio. The plaintiff subsequently withdrew the action after the defendant's repeated attempts to prolong the litigation by failing to appear or to plead except to contest the plaintiff's claim of irreconcilable differences. The plaintiff subsequently brought an action for dissolution of the marriage on the ground that she had lived separately and apart from the defendant for more than one year. She withdrew that action after the parties briefly resumed cohabitation. In 1992, the plaintiff brought another divorce proceeding. She withdrew that action after the defendant obtained employment in Connecticut where she was residing. In 1997, the plaintiff brought a divorce proceeding in the judicial district of Stamford-Norwalk, which she subsequently withdrew when she commenced the present action in Danbury seeking dissolution of her marriage on the ground of irretrievable breakdown. The defendant filed a motion to dismiss the action, or, in the alternative, to transfer the action to the judicial district of Stamford-Norwalk, arguing that the filing of the present action constituted forum shopping because the plaintiff had originally commenced a dissolution action in Stamford and later withdrew the action. The court denied the defendant's motion.
"Documentary and testimonial evidence were presented to the court on approximately sixteen trial dates from May 22 to July 9, 2002. In January, 2003, the court dissolved the parties' marriage[3] and entered various financial orders. The court ordered that the defendant (1) convey his interest in the parties' marital residence located in New Canaan to the plaintiff, (2) pay the plaintiff lump sum alimony in the amount of $100,000, and (3) pay the *394 plaintiff $100,000 in attorney's fees." Id., at 43-44, 844 A.2d 855.
The defendant, raising a plethora of claims,[4] appealed from the judgment of the trial court to the Appellate Court. With respect to the issues that are the subject of these certified appeals, the Appellate Court concluded that the trial court had: (1) in fashioning the financial orders, improperly determined that the defendant had diminished the marital estate by $2.9 million, but that incorrect finding was harmless error; and (2) abused its discretion by ordering the defendant to pay $100,000 of the plaintiff's attorney's fees. Id., at 53-54, 844 A.2d 855. These certified appeals followed. See footnotes 1 and 2 of this opinion.
I
We begin with the defendant's claim that the Appellate Court improperly concluded that the trial court's determination that he had diminished the marital estate by $2.9 million was incorrect, but harmless error not requiring reversal. We affirm the judgment of the Appellate Court, but on the alternate grounds that the defendant's claims with respect to the $2.9 million were both abandoned and rendered unreviewable by his failure to follow certain basic principles of appellate procedure.[5]
The record and the Appellate Court decision reveal the following additional facts and procedural history relevant to this claim. The trial court credited the evidence presented by the plaintiff at trial and found that, while the action was pending in Danbury from 2000 until 2002, "the defendant spent large sums of money for personal expenses (approximately $400,000 per year) while making no meaningful effort to obtain employment commensurate with his education, work history and skills. This testimony [permitted] the court to find that in the years from 1998 to 2002, the defendant earned approximately $311,000 and the marital assets were reduced by approximately $2.9 million. This was the result of the defendant's liquidation of retirement funds and his expenditure of approximately $700,000 for charities and an additional $1.1 million for counsel fees in conjunction with the dissolution proceedings. It was not possible to make a more specific finding regarding his financial transactions because of his failure to comply with certain discovery requests."
The trial court then made additional findings, including the following: (1) "the amount of attorney's fees, even in a case involving sizeable assets, is excessive in light of the lack of complex issues"; and (2) "the extent of the charitable gifts paid out by the defendant at a time when there *395 are automatic orders preventing wholesale reductions in the marital assets is inexcusable." The trial court further noted that, although "the downturn in the stock market resulted in the shrinkage of the parties' assets," that diminution did "not include the sale or transfer of approximately 40,600 shares of [General Electric] stock without permission of the court and without the knowledge and consent of the plaintiff." The trial court then concluded that "the defendant has failed to earn income commensurate with his skill and talent and, in addition, he has seriously and inexcusably diminished the asset picture of the parties," while "[t]he plaintiff, on the other hand, has made no appreciable reduction in the marital assets and has made sizeable contributions to those funds."
The trial court then found that the marriage had broken down irretrievably, and rendered financial orders directing the defendant to convey to the plaintiff all of his right, title and interest in the marital residence in New Canaan, and directing the plaintiff to convey to the defendant all of her right, title and interest in the marital home that was located in Highland Heights, Ohio. The trial court allowed the plaintiff to retain her rights to her home in Bethel. The court also made certain orders with respect to the disposition of personal property, including several automobiles, and various brokerage accounts. As stated previously, the court directed the defendant to pay the plaintiff lump sum alimony in the amount of $100,000, and a $100,000 contribution to her counsel fees.
On appeal, the Appellate Court concluded that, although the trial court had weighed the proper statutory factors in arriving at the award; see General Statutes §§ 46b-81 (c) and 46b-82 (parties' age, health, employment, education, earnings and earning capacities, as well as reasons for dissolution); its finding that the "defendant wrongfully had diminished the marital assets by approximately $2.9 million," as calculated by "his liquidation of retirement funds in the amount of $1,121,737, his expenditure of $717,865 in charitable contributions and his expenditure of more than $1,130,000 in counsel fees," was improper. Grimm v. Grimm, supra, 82 Conn.App. at 51, 844 A.2d 855. Specifically, the Appellate Court disagreed with the trial court's determination, noting that, with respect to the charitable contributions, the automatic orders did not come into effect until December 15, 2000, and that only "charitable contributions during the years 2001 and 2002 in the amount of $286,000 violated the orders because the automatic orders were in effect."[6] Id., at 52, 844 A.2d 855.
The Appellate Court further noted that, although the trial court's calculation "improperly included a portion of the charitable contributions and the retirement funds in the amount that it determined was the defendant's wrongful reduction of the marital assets,"[7] that calculation also "did *396 not fully take into account the 40,635 shares of General Electric stock that he had sold or given away. That factor would offset, to a degree, any amount by which the court improperly determined that the defendant had diminished the marital assets. In determining the impact of the incorrect findings, it is significant that the court's finding was not directly linked to any specific property distribution that was ordered by the court. We note further that the defendant should not be entitled to benefit from the ambiguity that he created by his refusal to provide clear and accurate financial records." Id., at 53, 844 A.2d 855. Accordingly, the Appellate Court concluded that the trial court's "findings as to the specific amount of the marital assets that the defendant wrongfully dissipated and the method by which he did so constituted harmless error that did not undermine the financial orders."[8] Id.
We begin with the proper standards of review. "The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citation omitted; internal quotation marks omitted.) Jewett v. Jewett, 265 Conn. 669, 690-91, 830 A.2d 193 (2003).
With respect to the financial orders predicated on those findings of fact, "[t]he issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.... Furthermore, trial courts are endowed with broad discretion to distribute property in connection with a dissolution of marriage." (Citation omitted; internal quotation marks omitted.) Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005).
Ordinarily, resolution of the first certified issue in the present case would require us to review the record and to determine first whether the trial court's *397 finding that the defendant had reduced the marital estate by $2.9 million was clearly erroneous, but nevertheless harmless. In the present case, however, two separate, but related, breakdowns of basic appellate procedure require that the trial court's judgment be affirmed because this intensely factual issue is incapable of meaningful evaluation by any reviewing court. The first procedural shortfall is the defendant's failure to move for articulation or rectification of the underpinnings of the trial court's factual findings in a case involving an unnecessarily complicated and voluminous record.[9] The second is the defendant's failure to raise his claims with respect to the $2.9 million reduction of assets until oral argument before the Appellate Court.
A
Beginning with the defendant's failure to move for an articulation or rectification pursuant to Practice Book § 66-5,[10] we note that the trial court's memorandum of decision cites only the "testimony" in support of its conclusion that the marital assets were reduced by approximately $2.9 million, as calculated by the addition of approximately $700,000 in charitable donations, $1.1 million in counsel fees, and the liquidation of retirement funds. Although the trial court stated that it could not make more specific findings because of the defendant's failure to provide certain financial *398 records in response to discovery requests; see footnote 9 of this opinion; the memorandum nevertheless does not specify the exact sources of the numbers that it used to calculate the $2.9 million reduction. Indeed, at oral argument before the Appellate Court, Judge Schaller pointed out the defendant's failure to move for further articulation with respect to any link between the $2.9 million reduction and the trial court's ultimate financial orders.[11]
"As is always the case, the [appellant], here the [defendant], bear[s] the burden of providing a reviewing court with an adequate record for review." Cable v. Bic Corp., 270 Conn. 433, 442, 854 A.2d 1057 (2004), citing, e.g., Practice Book § 61-10.[12] "It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling... or to ask the trial judge to rule on an overlooked matter.... In the absence of any such attempts, we decline to review this issue." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 232, 828 A.2d 64 (2003); see also Zahringer v. Zahringer, 262 Conn. 360, 370, 815 A.2d 75 (2003) ("[i]t is the responsibility of the appellant to move for an articulation in order to clarify the basis of the trial court's decision should such clarification be necessary for effective appellate review of the issue on appeal"). "[A]n articulation is appropriate where the trial court's decision contains some ambiguity or deficiency reasonably susceptible of clarification.... [P]roper utilization of the motion for articulation serves to dispel any ... ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal." (Internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 204, 819 A.2d 227 (2003).
The defendant's attribution of the trial court's calculations to its one-sided wholesale adoption of the plaintiff's trial memorandum notwithstanding, without a motion for articulation or rectification, there is no way short of a crystal ball for a reviewing court to ascertain the precise basis for the trial court's decision in this voluminous record. The defendant also faults the plaintiff for failing to move for the articulation, noting that these rules apply equally to appellees seeking affirmance of a trial court decision on alternate grounds. See Zahringer v. Zahringer, supra, 262 Conn. at 370, 815 A.2d 75. These arguments, however, illustrate the very purpose of a motion for articulation or rectification. An articulation or rectification by the trial court would have, at the very least, aided the reviewing courts in determining the basis or lack thereof in the record for the trial court's decision, and also would have afforded the trial court, as the finder of fact, the opportunity to correct any miscalculations. Inasmuch as the defendant is the party who has chosen belatedly to attack the trial court's *399 factual findings on appeal, it is he who has elected to bear the burden of moving for an articulation or rectification of the trial court's decision. Accordingly, because neither the Appellate Court nor this court could review this claim in a meaningful manner, we must conclude that the Appellate Court properly affirmed the judgment of the trial court.
B
Furthermore, even if the record had been adequate for review of the defendant's claims with respect to the $2.9 million reduction, the defendant abandoned those claims by failing to raise them properly before the Appellate Court. As the defendant himself conceded at oral argument before this court, although he claimed in the Appellate Court that the trial court's financial orders were an abuse of its discretion, the $2.9 million reduction did not form a distinct basis for his claim on appeal.[13] Indeed, the defendant's written claims in the Appellate Court with respect to the financial orders centered on his argument that "the impact of the financial awards is more punitive than equitable," which is a paradigmatic characterization of an ordinary abuse of discretion claim. See, e.g., Greco v. Greco, supra, 275 Conn. at 363, 880 A.2d 872 (affirming judgment of Appellate Court reversing financial orders that "forced [the defendant] to the brink of abject poverty" as result of disproportionate asset division and alimony and insurance payments). The only mention of the $2.9 million in the defendant's Appellate Court brief is contained not in the argument section, but rather in the nature of proceedings and statement of facts.[14] The argument section *400 of the defendant's Appellate Court brief does not mention the $2.9 million at all, instead addressing reasons why the property distribution rendered the "impact of the financial awards ... more punitive than equitable." The defendant attacks the factual underpinning in only one paragraph at the end of that argument section, never challenging the predicate $2.9 million figure, and disputed only the trial court's conclusions that the plaintiff contributed $970,000 to the parties' marital assets and the defendant depleted the assets based on a total of $717,000 in charitable contributions.[15] Other than stating that those conclusions rest solely on "evidence that is not in the record," the defendant failed, however, to identify the evidence that actually is in the record to explain why these figures are clearly erroneous.
The defendant, however, shifted gears at oral argument before the Appellate Court,[16] when he clearly attacked the award's underpinnings and argued that the $2.9 million is a figure that "doesn't exist." He claimed that the $2.9 million has "zero support" in the record and was arrived at by "double count[ing]," because that number was calculated by adding the liquidated retirement funds to the counsel fees and the charitable donations, when in fact the liquidated funds had paid for both the counsel fees and the donations. The defendant also attacked the findings of the trial court, Doherty, J., with respect to the charitable donations, stating that several hundred thousand dollars should not have been counted against the defendant because they had been authorized by the court, Tierney, J., when this action previously was pending in Stamford.[17]
It is well settled that claims on appeal must be adequately briefed, and cannot be raised for the first time at oral argument before the reviewing court. See, e.g., State v. Robert H., 273 Conn. 56, 85, 866 A.2d 1255 (2005); Lafayette v. General Dynamics Corp., 255 Conn. 762, 781, 770 A.2d 1 (2001). Claims that are inadequately *401 briefed generally are considered abandoned. See, e.g., Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004). Moreover, a claim that has been abandoned during the initial appeal to the Appellate Court cannot subsequently be resurrected by the taking of a certified appeal to this court.[18] See State v. Robert H., supra, at 85-86, 866 A.2d 1255 (declining to reach claim that, in addition to being outside scope of certified question, was not briefed by state and not raised until oral argument before Appellate Court).
Having reviewed the defendant's written filings before the Appellate Court, and the transcript of oral argument before that court, we conclude that the defendant did not raise the factual issue with respect to the $2.9 million reduction until oral argument before the Appellate Court. The defendant, therefore, abandoned the issue before that court and for the remainder of the proceedings on appeal, and the Appellate Court should not have decided it as a claim on appeal.[19] Accordingly, we affirm the judgment of the Appellate Court to the extent that it affirmed the financial orders of the trial court.[20]
II
We now turn to the plaintiff's appeal from the judgment of the Appellate *402 Court concluding that the trial court abused its discretion by directing the defendant to pay $100,000 of her attorney's fees. Grimm v. Grimm, supra, 82 Conn.App. at 56, 844 A.2d 855. The plaintiff claims that the trial court properly considered the defendant's conduct during the litigation in its decision to award her fees, and that the award was necessary to avoid undermining the other financial orders. The defendant claims in response that the attorney's fee award was improperly punitive in nature, and that the record demonstrates that both parties were able to pay their own attorney's fees without undermining the other financial orders. We conclude that the trial court did not abuse its discretion by awarding the plaintiff $100,000 in attorney's fees, and we reverse the judgment of the Appellate Court to the contrary.
We begin with a brief review of the Appellate Court's treatment of this issue. The Appellate Court stated that, "[a] clear picture of the plaintiff's financial status can be gained by a review of the court's financial orders and her financial affidavit. The plaintiff earned a salary of more than $100,000 a year, possessed significant retirement accounts and had valuable stock options from her employer, General Electric. She was awarded both of the parties' Connecticut residences, which were valued together at more than $1 million, and received a lump sum alimony award of $100,000." Id., at 54, 844 A.2d 855. The Appellate Court cited General Statutes § 46b-62,[21] which governs the award of attorney's fees in dissolution actions, and concluded that the trial court had abused its discretion by awarding attorney's fees because "the record does not support a finding that the plaintiff lacked sufficient liquid assets with which to pay her counsel fees or that the failure to award such fees would have undermined the court's other financial orders. The plaintiff earned more than $100,000 a year, had sizeable investments and was awarded $100,000 in alimony. She also no longer had a need for two residences in Connecticut, as she had purchased the second home when she separated from the defendant." Id., at 54-55, 844 A.2d 855.
The Appellate Court noted further that "[a]mple liquid funds, however, are not an absolute litmus test for an award of counsel fees"; id., at 55, 844 A.2d 855; and cited this court's decision in Maguire v. Maguire, 222 Conn. 32, 44, 608 A.2d 79 (1992), for the proposition that, "`[t]o award counsel fees to a spouse who had sufficient liquid assets would be justified, if the failure to do so would substantially undermine the other financial awards.'" Grimm v. Grimm, supra, 82 Conn.App. at 55, 844 A.2d 855. The Appellate Court, however, reversed the fee award, concluding that the trial court "made no such finding that the award was necessary to avoid undermining its other financial orders," and that "there is nothing in the record to support such a finding." Id. The Appellate Court then stated that it did not need to remand the case for further proceedings because the fee award was severable from the other orders. Id., at 56, 844 A.2d 855.
"[Section] 46b-62 governs the award of attorney's fees in dissolution proceedings. That section provides in part that the court may order either spouse ... to pay the reasonable attorney's fees of the other *403 in accordance with their respective financial abilities and the criteria set forth in section 46b-82.... The criteria set forth in § 46b-82 are the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment. In making an award of attorney's fees under this section, [t]he court is not obligated to make express findings on each of these statutory criteria....
"Courts ordinarily award counsel fees in divorce cases so that a party... may not be deprived of [his or] her rights because of lack of funds.... Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so.... Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980). An exception to the rule announced in Koizim is that an award of attorney's fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine its prior financial orders.... Eslami v. Eslami, 218 Conn. 801, 820, 591 A.2d 411 (1991). Whether to allow counsel fees [under § 46b-82], and if so in what amount, calls for the exercise of judicial discretion.... Holley v. Holley, [194 Conn. 25, 33-34, 478 A.2d 1000 (1984)]. An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did." (Citation omitted; internal quotation marks omitted.) Bornemann v. Bornemann, 245 Conn. 508, 542-43, 752 A.2d 978 (1998). The trial court need not make an express finding with respect to whether the fee award is necessary to avoid undermining the other financial orders, so long as the record supports that conclusion. Id., at 544-45, 752 A.2d 978.
In the present case, the record supports the conclusion that the attorney's fee award was necessary to avoid undermining the trial court's other financial orders, specifically that of lump sum alimony, and that the trial court did not, therefore, abuse its discretion by making such an award. Although the plaintiff was by no means rendered destitute by this action, "ample liquid funds [are] not an absolute litmus test for an award of counsel fees." (Internal quotation marks omitted.) Maguire v. Maguire, supra, 222 Conn. at 44, 608 A.2d 79. Rather, the structure of the trial court's memorandum of decision indicates that the court clearly intended that the plaintiff receive $100,000 in lump sum alimony, in addition to the $100,000 contribution to her attorney's fees. The Appellate Court's vacatur of the $100,000 attorney's fee order necessarily eviscerates any benefit that the plaintiff received as a result of the lump sum alimony award, particularly given the $182,913 in attorney's fees that she incurred in connection with the Danbury action.[22] Accordingly, the trial court reasonably *404 could have determined that the fee award was necessary to avoid undermining the lump sum alimony order.[23]
On the plaintiff's appeal, the judgment of the Appellate Court is reversed as to its order reversing the trial court's judgment awarding attorney's fees to the plaintiff and the case is remanded to the Appellate Court with direction to affirm the judgment of the trial court; on the defendant's appeal, the judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
NOTES
[1] We granted the defendant's petition for certification to appeal limited to the following issue: "Did the Appellate Court properly conclude that the trial court's improper findings in support of its financial award were harmless?" Grimm v. Grimm, 270 Conn. 902, 903, 853 A.2d 519 (2004).
[2] We granted the plaintiff's conditional cross petition for certification to appeal limited to the following issue: "Did the Appellate Court improperly reverse the trial court's award of counsel fees?" Grimm v. Grimm, 270 Conn. 903, 853 A.2d 519 (2004).
[3] The trial court found that the record demonstrates that the defendant had "spent an extraordinary amount of time and effort" attempting to prove that there was no marriage to dissolve, and alternatively, that the marriage had not broken down irretrievably. The trial court concluded, however, that the parties' marriage had broken down irretrievably without any hope of reconciliation. The trial court relied on the plaintiff's testimony about the defendant's behaviors that she had found objectionable, which included: (1) watching pornography over her objection; (2) making inappropriate and unwanted sexual advances toward her; (3) walking around naked in the presence of her adolescent daughter; (4) disappearing for days at a time without telling the plaintiff of his whereaboutsat one point leaving her stranded in an airport; and (5) punishing the plaintiff's daughter in ways that, while not abusive per se, most charitably can be described as unconventional.
The record did, however, also demonstrate that charity was a priority for both parties. The defendant routinely gave more than $100,000 annually to various religious charitiesdonations that did not stop even during the pendency of these costly proceedings. For her part, the plaintiff made donations of nearly $4000 per month to Inspiration Ministries, which is a church of seven members that meets in her home and was founded by her friend, the Reverend Alan Fretto, a retired police officer.
[4] The defendant raised the following claims in the Appellate Court: "(1) General Statutes § 46b-40(c)(1) violates the free exercise of religion clauses of the federal and state constitutions, (2) the trial court improperly concluded that the parties' marriage had irretrievably broken down and precluded expert testimony on the subject, (3) the court improperly determined the financial orders, (4) the court improperly denied his motion to open the evidence prior to judgment for the purpose of offering certain evidence and (5) the court improperly denied his motion to dismiss or to transfer the matter to another judicial district." Grimm v. Grimm, supra, 82 Conn.App. at 43, 844 A.2d 855.
[5] We note that the plaintiff timely filed, pursuant to Practice Book § 84-11, a statement of alternate grounds for affirmance of the trial court judgment, namely: (1) "the trial court did not make improper findings in support of its financial award"; and (2) "the defendant's claim regarding the trial court's `improper findings' in support of its financial awards was not briefed by him at the Appellate Court level and should therefore be deemed abandoned."
[6] The Appellate Court stated that the "donations that were made in 1998 in the amount of $149,525 were specifically authorized by an earlier order from the Stamford case when the automatic orders in this case were not in effect. The earlier order permitted the defendant to make charitable contributions as long as they did not exceed $200,000 annually. The $149,525 contribution, which was made while the defendant was employed, did not diminish the marital assets of both parties. Accordingly, the court should not have included that amount in determining the amount by which the defendant had reduced or dissipated the marital assets." Grimm v. Grimm, supra, 82 Conn.App. at 52, 844 A.2d 855.
[7] The Appellate Court concluded that the trial court incorrectly had "adopted the plaintiff's argument that the defendant had diminished the marital assets by approximately $2.9 million. That amount was determined by taking the total of the liquidated retirement funds, the charitable contributions and [the] defendant's counsel fees. It was incorrect to total those categories because a portion of the liquidated retirement funds was used in part to make charitable contributions. By the court's reasoning, in effect, any of the liquidated retirement funds that were used for charitable contributions would have been counted twice. On the basis of the record, the court's determination of the amount of assets that were dissipated by the defendant may have been as much as $500,000 too high. As the court noted, however, the total amount of the retirement funds included in the contributions was indeterminable because the defendant refused to comply with several discovery requests to provide clear and accurate financial records." Grimm v. Grimm, supra, 82 Conn.App. at 52-53, 844 A.2d 855.
[8] Judge Flynn dissented from this portion of the Appellate Court decision. Although he agreed that the trial court's factual finding with respect to the reduction of assets was inaccurate, he disagreed with the majority's conclusion that the trial court's failure to consider fully the 40,635 shares of General Electric stock rendered that inaccuracy harmless error. See Grimm v. Grimm, supra, 82 Conn.App. at 56-57, 844 A.2d 855 (Flynn, J., dissenting). Judge Flynn concluded that the inaccuracy necessarily required a new hearing because it was not severable from the "`carefully crafted mosaic'"; id., at 57, 844 A.2d 855; and "the erroneous calculation of the amount of marital assets that the defendant was alleged to have dissipated was not severable and was most definitely linked to other factors." Id., at 58, 844 A.2d 855 (Flynn, J., dissenting).
[9] We pause to express our dismay at the state of this record. By way of bulk, it contains sixteen volumes of testimony that is at once contradictory and repetitive. Financial documents, many of which were not present because of the defendant's failure to comply with certain discovery requests, would have, however, been a worthwhile addition to this record's already considerable girth. In this case, pictures in the form of financial statements might have been worth many thousands of words, and would have given both the trial and reviewing courts a more concrete frame of reference for its calculations than wading through volumes of testimony about the assets.
We note, however, that the defendant had discarded the financial documents that the plaintiff had requested during discovery, and had made no effort thereafter to obtain them from the relevant institutions in response to the discovery requests. The trial court, faced with additional delays of a trial that already had been the subject of several continuances, sanctioned the defendant for his noncompliance by ordering him to pay $1250 of the plaintiff's attorney's fees, and then precluded both parties from introducing into evidence any outstanding financial documents that they thereafter might be able to obtain.
[10] Practice Book § 66-5 provides in relevant part: "A motion seeking corrections in the transcript or the trial court record or seeking an articulation or further articulation of the decision of the trial court shall be called a motion for rectification or a motion for articulation, whichever is applicable. Any motion filed pursuant to this section shall state with particularity the relief sought....
"The appellate clerk shall forward the motion for rectification or articulation and the opposition, if any, to the trial judge who decided, or presided over, the subject matter of the motion for rectification or articulation for a decision on the motion. If any party requests it and it is deemed necessary by the trial court, the trial court shall hold a hearing at which arguments may be heard, evidence taken or a stipulation of counsel received and approved. The trial court may make such corrections or additions as are necessary for the proper presentation of the issues raised or for the proper presentation of questions reserved. The trial judge shall file the decision on the motion with the appellate clerk.
"Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based. The trial judge shall file any such order changing the judgment or the record with the appellate clerk....
"Any motion for rectification or articulation shall be filed within thirty-five days after the delivery of the last portion of the transcripts or, if none, after the filing of the appeal, or, if no memorandum of decision was filed before the filing of the appeal, after the filing of the memorandum of decision...."
[11] We note that the only appearance in the record of a motion for articulation is a motion filed by the plaintiff for permission to file a late motion for articulation of the trial court's order with respect to counsel fees. The Appellate Court denied that motion.
[12] Practice Book § 61-10 provides: "It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term `record' is not limited to its meaning pursuant to Section 63-4(a)(2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety."
[13] The relevant point heading in the defendant's Appellate Court brief stated: "The Trial Court Abused Its Discretion in Making Financial Orders that Lacked Evidentiary Support and that, Inter Alia, Awarded the Plaintiff Lump Sum Alimony and Title to Both Connecticut Properties, Thereby Leaving the Defendant Without a Connecticut Residence, Where the Plaintiff Possessed Substantial Earnings and Assets in Her Own Right." While quite the mouthful, it obviously says nothing about an improperly counted $2.9 million.
[14] In his statement of facts, the defendant, purportedly describing the trial court's memorandum of decision, states: "`The testimony permits the court [to] find that in the years from 1998 to 2002, the defendant earned approximately $311,000 and the marital assets were reduced by approximately $2.9 million dollars.' These exact numbers are found on page twenty-one of the plaintiff's trial brief. The court cites the attorney's fees paid by the defendant and his charitable contributions, which the court found to be $700,000.00, a number found on page [twenty] of the plaintiff's trial brief which in turn includes `estimations' totaling over $280,000, made by counsel. It ignores Judge Tierney's ruling of September 29, 1997, in the Stamford action allowing the parties to contribute up to $200,000 per year to [Internal Revenue Service] approved charities, and incorrectly states that the contributions were in violation of the automatic orders, as there were no automatic orders in the Stamford action as it had been filed prior to October 1, 1997. And while the plaintiff's $2.9 million figure also included stock depreciation due to market fluctuations, those numbers were not in evidence and the court declined to specify this aspect, instead faulting the defendant for selling shares of [General Electric] stock, even though Judge Tierney's order allowed him to do so without express court permission and those numbers were not in evidence."
This discussion in the statement of facts does not constitute adequate briefing of this factual issue. First, it is buried in the statement of facts and is not a distinctly raised separate point on appeal, which precludes effective review of the issue. Cf. Hirtle v. Hirtle, 217 Conn. 394, 403 n. 8, 586 A.2d 578 (1991) (considering "doubtful" "procedural propriety" of alternate ground for affirmance not properly raised pursuant to Practice Book § 4013[a], now § 63-4). Second, to the extent that it is a claim on appeal, it violently disregards Practice Book § 67-4, which is the rule governing the organization of appellate briefs. For helpful additional guidance, see W. Horton & K. Bartschi, Connecticut Rules of Appellate Procedure Annotated (2005 Ed.) § 67-4, comment B2, p. 210 (noting that statement of facts "should never be argumentative in nature; save that for your argument").
[15] The defendant also attacks the trial court's failure to consider the nearly $4000 per month in charitable donations made by the plaintiff to her church, Inspiration Ministries. See also footnote 3 of this opinion.
[16] In September, 2004, we granted the defendant's motion to include the transcript of the Appellate Court oral argument in the record on appeal to this court.
[17] In response, the plaintiff claimed at oral argument before the Appellate Court that the $2.9 million could be arrived at by adding $400,000 in annual living expenses for several years when the defendant was unemployed, to $1.8 million, derived at by adding $700,000 in charitable contributions to $1.1 million in counsel fees. Indeed, the plaintiff also cited the defendant's own admission during cross-examination that the value of the marital estate had diminished by close to $2.9 million when the two financial affidavits were compared. The plaintiff also stated that the order by the trial court in Stamford, Tierney, J., no longer was in effect after the action was withdrawn from that court and refiled in Danbury, and also that the defendant's financial circumstances had changed; he was earning several hundred thousand dollars per year while the action was pending in Stamford, but was unemployed when the trial court heard the case in Danbury. Later in the argument, in response to further questioning from the court, the plaintiff's counsel reduced that figure to $2.4 million, by adding $700,000 in charitable contributions to $1.1 million in legal fees, and $600,000 in living expenses. The plaintiff then explained that the additional $500,000 could be obtained by the unaccounted-for 40,635 shares in General Electric stock, which had been liquidated at a sum that could not be determined precisely because of the lack of financial records.
[18] This rule, of course, does not apply to issues involving subject matter jurisdiction, which may be raised by the parties or the court, sua sponte, at any stage of the proceedings. See, e.g., Broadnax v. New Haven, 270 Conn. 133, 153, 851 A.2d 1113 (2004).
[19] In his reply brief, the defendant requests that we review the trial court and the Appellate Court decisions for plain error in the event that we conclude that his claim was inadequately briefed and, therefore, abandoned. We decline his invitation to engage in plain error review. Claims, including requests for plain error review, are unreviewable when raised for the first time in a reply brief. See, e.g., Calcano v. Calcano, 257 Conn. 230, 244, 777 A.2d 633 (2001); cf. Lebron v. Commissioner of Correction, 274 Conn. 507, 532, 876 A.2d 1178 (2005) (declining to reach unpreserved constitutional claims when habeas petitioner did not request review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 [1989], until he filed his reply brief). "Our practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant's reply brief is to respond to the arguments and authority presented in the appellee's brief, that function does not include raising an entirely new claim of error." (Internal quotation marks omitted.) Calcano v. Calcano, supra, at 244, 777 A.2d 633.
We further note that the defendant's reliance on Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. at 266 n. 69, 828 A.2d 64, for the proposition that a request for plain error review may be made in a reply brief, is misplaced. In that case, although this court did not recite the principle precluding plain error review for claims raised for the first time in a reply brief, we nevertheless declined to engage in that review because that claim was inadequately briefed. Id. Finally, even assuming that this claim was properly raised and briefed before the Appellate Court, we cannot say that, given the disastrous state of this record, that this is a "truly extraordinary [situation] where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) Id.
[20] We remind the defendant that "[o]ur refusal to upset the property and alimony awards in this case does not constitute an abdication of our responsibility for appellate review. To the contrary it evidences a recognition on our part that by constitutional charter we are limited to corrections of errors of law ... and that, therefore, in matters of this sort our role of necessity is not to work the vineyard but rather to prune the occasional excrescence." (Citation omitted.) Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980). Failure to present an adequate record and a properly briefed claim constitutes an invitation to "work the vineyard"an invitation that we necessarily must decline.
[21] General Statutes § 46b-62 provides in relevant part: "In any proceeding seeking relief under the provisions of this chapter and sections 17b-743, 17b-744, 45a-257, 46b-1, 46b-6, 46b-212 to 46b-213v, inclusive, 47-14g, 51-348a and 52-362, the court may order either spouse ... to pay the reasonable attorney's fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82 ...."
[22] The trial court stated that the plaintiff had paid approximately $233,000 in attorney's fees. That figure is the total fee for the Danbury and Stamford actions. In this appeal, however, we need only consider the Danbury action, for which the plaintiff incurred $182,913 in fees. The Danbury action involved a sixteen day trial of a case without custody or complex valuation issues, the filing of grievances against the plaintiff's attorneys, eight motions for continuances, and the need to respond to a General Statutes § 52-265a petition brought to the Chief Justice by the defendant in an attempt to appeal from the denial of one of those motions. The specific amount of the attorney's fee award is not at issue in this certified appeal.
With respect to that fee amount, however, we note that the plaintiff is not completely blameless in the evolution of this relatively simple dissolution case into a protracted, expensive morass. We note, in particular, her multiple motions to strike portions of the defendant's briefs that were filed before this court, substantial portions of which were occasioned by citation discrepancies created by a formatting error that had occurred when the electronic transcripts were converted to standard format. This is a problem that could and should have been resolved by a courtesy call between counsel, rather than more expensive and time consuming motion practice before this court.
[23] The defendant, relying on the trial court's finding that the defendant had threatened the plaintiff that he would "drag out" any litigation and cause her to spend over $100,000 in attorney's fees unless she agreed to give him 80 percent of the marital assets, contends that the award is improperly punitive. See Blake v. Blake, 211 Conn. 485, 488, 560 A.2d 396 (1989) ("[p]unishment of a litigant should play no role in the determination of the issue of awarding attorney's fees"). That finding, however, ultimately has no bearing on the propriety of the specific attorney's fee order in the present case, which the trial court reasonably concluded was necessary to avoid undermining the lump sum alimony award. In this case, the award of fees is not an abuse of the trial court's discretion because the amount of that award is both: (1) supported by objective evidence in the record, including the fee affidavits of the plaintiff's counsel; and (2) does not exceed the amount necessary to avoid undermining the other financial orders in the case. See Burton v. Burton, 189 Conn. 129, 142 n. 16, 454 A.2d 1282 (1983) (rejecting defendant's argument that trial court's review of proceedings characterized award as "effectively punishing the defendant for presenting a `vigorous defense'" because "the length of the proceedings and the time expended by counsel are relevant when the amount of the award is set"). Accordingly, we reject the defendant's contention that the attorney's fee award was improperly punitive or "akin to double jeopardy" because the court already had sanctioned him in April, 2002, for failure to keep all of his financial records. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2567656/ | 182 P.3d 891 (2008)
219 Or. App. 268
STATE of Oregon, Plaintiff-Respondent,
v.
William R. WILLIS, Defendant-Appellant.
F10934; A126649.
Court of Appeals of Oregon.
Argued and Submitted November 9, 2007.
Decided April 16, 2008.
*892 David J. Celuch argued the cause and filed the brief for appellant.
Heather A. Vogelsong argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before EDMONDS, Presiding Judge, and WOLLHEIM and SERCOMBE, Judges.
EDMONDS, P.J.
Defendant appeals a conviction for unlawful delivery of a controlled substance, former ORS 475.992 (2003), amended by Or. Laws 2005, ch. 708, § 39, renumbered as ORS 475.840 (2005), and assigns error to the trial court's admission into evidence of a state crime laboratory report identifying a substance allegedly delivered by defendant to a police informant as marijuana. Specifically, defendant argues that the admission violated his right to confrontation under both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution.[1] The state agrees that *893 the report was improperly admitted under Article I, section 11, but, nevertheless, asserts that the conviction should be affirmed, contending that the error was harmless under both the state and federal constitutions. We agree and affirm.
We take the following facts from the record. Several years ago, defendant was injured at work. As a result of his injury, defendant's physician prescribed marijuana to treat pain symptoms. Defendant was later indicted by a grand jury on one count of unlawful manufacture of a controlled substance, two counts of unlawful delivery of a controlled substance, and three counts of unlawful possession of a controlled substance; those charges were precipitated by his alleged selling of marijuana to a police informant. The purported marijuana delivered to the informant was in a sandwich baggie that would be later identified at trial as Exhibit 20. Defendant pleaded not guilty to the charges.
Before trial, defendant moved to exclude a report prepared by the Oregon State Crime Laboratory, which opined that the substance in Exhibit 20 was marijuana. Defendant's trial counsel asserted that admitting the report without calling the analyst who prepared it would violate defendant's confrontation rights under both state and federal constitutions:
"[U]nder the recent U.S. Supreme Court ruling in Crawford v. Washington, [541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),] my client has a confrontation clause right to confront the witnesses against him, and, by offering that * * * lab report in evidence as prima facie evidence [that the substance was marijuana] without the ability to cross examine [the analyst who prepared the report], it therefore forecloses my client's * * * confrontation clause right, constitutional right, both federally and under * * * Article I, section 11, of the Oregon Constitution[.]"
The trial court denied the motion and later admitted the laboratory report into evidence at trial without testimony from the analyst who prepared it.
Defendant waived his right to a jury trial, and the case was tried to the court. During opening statements, defendant's counsel told the court that the informant purchased the marijuana from defendant's son rather than defendant. During trial, defendant testified that he had not sold Exhibit 20 to the informant, and his lawyer attempted to impeach the informant's testimony that the informant had purchased Exhibit 20 from defendant.
In addition to the evidence in the laboratory report, two witnesses testified that Exhibit 20 contained marijuana. First, Officer Duncan identified Exhibit 20 as the marijuana he collected from the informant after the controlled buy. Duncan stated that "State's Exhibit 20 is a * * * clear plastic sandwich bag * * * with marijuana inside." At the time of the controlled buy, Duncan had served as a police officer for approximately 14 years, had attended several training classes for drug identification, had attended several Oregon Narcotics Enforcement Association seminars, and had made several hundred arrests for possession of marijuana. On cross-examination of Duncan, defendant's counsel asked, "So * * * the only information that you have, or the only link that you have between the marijuana that you received from [the informant] and my client is that [the informant] had told you he bought it from my client?"
Also, the informant testified that Exhibit 20 contained marijuana:
"Q: Okay, then, the stuff that you state that you bought from [defendant] on Halloween, was that also a dried product or was it a fresh product?
"A: I personally never opened it so I couldn't tell you, but I mean, it looked like it was a harvested, stuff, you know
"Q: Did it look
"A: it was obviously harvested.
"Q: Did it look like, was it the color of the
"A: It was green marijuana, yeah.
*894 "Q: the items that are here?
"A: Marijuana buds.
"Q: And you, you had seen the growing plants?
"A: Yes.
"Q: Did it look like those, the bright green of the growing plants?
"A: I don't know what you want me to say. It was marijuana. (Inaudible.) That's all I know. It was marijuana. I didn't smoke it. I didn't open the bag."
The informant stated that he had sufficient experience to recognize marijuana: "I've been around enough marijuana that I could see that it was marijuana." Defendant did not cross-examine the informant on his ability to identify marijuana.
On appeal, defendant reasserts his argument that the trial court's ruling on his pretrial motion to exclude the admission of Exhibit 20 violated his right to confrontation under both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. The state concedes that, in light of State v. Birchfield, 342 Or. 624, 157 P.3d 216 (2007), the admission into evidence of Exhibit 20, without calling the author of the report to testify, was error under Article I, section 11, but argues that the error was harmless in light of the other evidence regarding the contents of the exhibit. Second, the state asserts that any error in admitting Exhibit 20 was also harmless under the Sixth Amendment.
Article VII (Amended), section 3, of the Oregon Constitution requires this court to affirm a judgment if the judgment achieved the correct result even if error was committed. State v. Affeld, 307 Or. 125, 128, 764 P.2d 220 (1988). "Oregon's constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict?" State v. Davis, 336 Or. 19, 32, 77 P.3d 1111 (2003). The Davis court explained:
"In determining whether the error affected the verdict, it is necessary that we review the record. However, in so doing, we do not determine, as a factfinder, whether the defendant is guilty. That inquiry would invite this court to engage improperly in weighing the evidence and, essentially, retrying the case, while disregarding the error committed at trial, to determine whether the defendant is guilty. Rather, when we review the record, we do so in light of the error at issue. We ask whether there was little likelihood that the error affected the jury's verdict. * * * [It] is not a finding about how the court views the weight of the evidence of the defendant's guilt. It is a legal conclusion about the likely effect of the error on the verdict."
Id.
We conclude that there is little likelihood that the erroneous admission of the laboratory report identifying the substance in Exhibit 20 as marijuana affected the verdict, even if the informant's testimony is discounted as not credible. Although Duncan's testimony was not admitted as expert testimony for the purpose of identifying marijuana, his 14 years of experience as a police officer, his attendance at many drug-identification seminars, and his hundreds of arrests involving marijuana lend credibility to his identification of Exhibit 20 as marijuana. Moreover, defendant did not cross-examine Duncan on his testimony that Exhibit 20 contained marijuana. Also, at trial, defendant did not contest that the Exhibit contained marijuana other than to put the state to its prima facie burden of proof by his not guilty plea. We note that, in his motion for a judgment of acquittal and in closing argument, defendant did not raise the issue of whether the state had proved that Exhibit 20 contained marijuana. In light of the fact that there was no evidence that the substance was not marijuana, we conclude that the erroneous admission of the laboratory report in violation of Article I, section 11, was harmless.
Next, we must consider whether defendant is entitled to reversal under the federal constitution. The state frames the issue in an unusual posture. It does not argue that defendant's Sixth Amendment confrontation right was not violated by the admission of the laboratory report. Rather, it asserts that "under either a state or federal harmless error analysis, admission of the state crime laboratory report in this case was harmless." *895 We understand that statement to constitute a tacit admission that, for purposes of this case, the admission of the laboratory report, without the author testifying to its contents, violated the Sixth Amendment and that the state wishes to leave for another day and a different case the argument that no Sixth Amendment violation occurred under such circumstances. In the absence of any briefing by the state on whether the Confrontation Clause was violated, we accept its invitation.[2]
Error under the Sixth Amendment is harmless if a reviewing court can conclude beyond a reasonable doubt that the error did not contribute to the outcome at trial. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Although some errors are subject to automatic reversal under federal law, Neder v. US, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), violations of a defendant's Sixth Amendment confrontation right are subject to a harmless error review, Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) ("Accordingly, we hold that the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis."); see also State v. Cook, 340 Or. 530, 543-44, 135 P.3d 260 (2006) (holding that violations of the Sixth Amendment Confrontation Clause are subject to a harmless error analysis). In determining whether an evidentiary error is harmless, a reviewing court should consider "the importance of the evidence, whether the evidence was cumulative, the presence or absence of evidence corroborating or contradicting the evidence, and the overall strength of the prosecution's case." State v. Ennis, 212 Or.App. 240, 262, 158 P.3d 510, rev. den., 343 Or. 223, 168 P.3d 1154 (2007) (citing Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; Cook, 340 Or. at 544, 135 P.3d 260).
Applying the above factors to this case, we conclude beyond a reasonable doubt that admission of the report did not contribute to the outcome at trial. The primary issue in dispute at trial, as framed by defendant's testimony, was whether defendant or his son sold Exhibit 20 to the informant. For the reasons discussed above, the issue of whether Exhibit 20 contained marijuana became a collateral issue that was not actually contested by defendant at trial. Even on appeal, defendant does not point to any evidence in the record that contradicts the state's evidence that Exhibit 20 contained marijuana. In light of all of the evidence at trial, we conclude that any error under the federal Confrontation Clause in admitting the report was harmless.
Affirmed.
NOTES
[1] In his opening brief, defendant raised the confrontation issue only under the federal constitution. In a supplemental memorandum of additional authorities, defendant raised the issue under the state constitution for the first time. However, defendant had previously preserved both issues in the trial court. On appeal, the state does not argue that we should not consider the state constitutional issue on the ground that defendant failed to raise it in his opening brief, and we therefore do not address that issue under the provisions of ORAP 5.45(1).
[2] We note that the United States Supreme Court has recently granted certiorari in a case that would consider the constitutionality of a prosecutor offering a crime laboratory report as evidence in a criminal trial, instead of the live testimony of the expert who prepared the report. Commonwealth v. Melendez-Diaz, 69 Mass.App.Ct. 1114, 870 N.E.2d 676, rev. den., 449 Mass. 1113, 874 N.E.2d 407 (2007), cert. granted, ___ U.S. ___, 128 S.Ct. 1647, ___ L.Ed.2d ___ (2008). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340347/ | 128 S.E.2d 147 (1962)
258 N.C. 154
James. D. REDDING
v.
George W. BRADDY.
No. 395.
Supreme Court of North Carolina.
November 21, 1962.
*148 White & Crumpler, Leslie G. Frye and Harrell Powell, Jr., Winston-Salem, for plaintiff appellant.
Womble, Carlyle, Sandridge & Rice and H. G. Barnhill, Jr., Winston-Salem, for defendant appellee.
BOBBITT, Justice.
Prior to February 25, 1958, plaintiff, a police officer, had been involved in a series of automobile collisions from which he received some injury, including injury to his neck and back.
The damage to the police car (Plymouth) caused by the collision of February 25, 1958, was "very slight." The chief accounting officer of Winston-Salem testified the damage "was of such a minor nature that the vehicle was not repaired."
Plaintiff testified he felt "a sharp pain in (his) neck, just back of (his) head, just at the back of (his) neck," when defendant's Pontiac struck the Plymouth; that he "immediately called the police over the radio to come and investigate this collision"; that he got out of the police car, talked with defendant and tested the gear shift and brakes on defendant's car; and that, after remaining at the scene of the collision some twenty or thirty minutes, he went to the office of Dr. Transou, a chiropractor, where he was "given an adjustment to (his) neck."
From February 25, 1958, to October 28, 1958, plaintiff was given numerous adjustments by Dr. Transou. Plaintiff testified that, during this period, he suffered pain *149 both "in (his) neck and right arm." From October 28, 1958, until February 9, 1959, plaintiff saw no doctor.
Plaintiff saw Dr. McDowell, a bone specialist, February 9, 1959. Under treatment by Dr. McDowell, plaintiff was in the hospital from February 24, 1959, to March 5, 1959. Plaintiff was absent from work from February 25, 1959, through August 21, 1959. (Note: Prior to February 25, 1959, plaintiff had lost no time from his work.) During this period, plaintiff received his full salary of $380.00 per month. (Note: Included in this amount was $35.00 per week paid by Winston-Salem as selfinsurer under the Workmen's Compensation Act. Too, by reason of the payment of full salary, plaintiff's accumulated sick leave was reduced a half day for each of the days he was absent from work.)
While all of plaintiff's assignments of error have been considered, only those referred to below merit particular discussion.
On May 22, 1958, some three months after the collision in which defendant was involved, a police car in which plaintiff and another officer were riding had stopped at a street intersection in Winston-Salem, North Carolina, in obedience to a red traffic light. Plaintiff testified: "While I was sitting there a car driven by a man by the name of Charlie Hartman White, Jr., of Mocksville, accelerated and ran into the rear of the car I was in." Again: "In that collision the muscles in my lower back were pulled; I did not have any injury to my neck in that collision."
Under cross-examination, plaintiff testified, over objection by his counsel, that he had received $1,025.00 on April 2, 1959, in settlement of his claim for injuries caused by said collision of May 22, 1958; and defendant, over plaintiff's objection, offered in evidence the check of Allstate Insurance Company, dated April 2, 1959, in the amount of $1,025.00, payable to James D. Redding. Plaintiff assigns as error the admission of this evidence, contending the fact there was a settlement of his claim for injuries sustained in said collision of May 22, 1958, for $1,025.00, was irrelevant and prejudicial.
"The standard of admissibility based on relevancy and materiality is of necessity so elastic, and the variety of possible fact situations so nearly infinite, that an exact rule cannot be formulated. In attempting to express the standard more precisely, the Court has emphasized the necessity of a reasonable, or open and visible connection, rather than one which is remote, latent, or conjectural, between the evidence presented and the fact to be proved by it, at the same time pointing out that the evidence need not bear directly on the issue and that the inference to be drawn need not be a necessary one." Stansbury, North Carolina Evidence, § 78.
Before and after May 22, 1958, plaintiff was receiving adjustments from Dr. Transou. In February-March, 1959, in the hospital, plaintiff "was placed in traction, with a head harness, with a bar running across the top of (his) head * * *." Plaintiff testified that while "wearing the traction it gave (him) some relief, and (his) neck and shoulders seemed to get a lot better," and "the grip in (his) hand started to coming back to some degree." Dr. McDowell, witness for plaintiff, testified that when he first examined plaintiff on February 9, 1959, plaintiff "was complaining of pain in his neck entirely, not in his lower back, even though he was still wearing a back support to his lower back." Again: "My examination was confined entirely to his complaint, which was his neck." Dr. McDowell referred to the treatment given plaintiff in the hospital as "cervical traction." Dr. McDowell testified plaintiff told him about the collision in May, 1958, but "did not at any time say anything specifically about an accident involving the automobile driven by Mr. Braddy, on February 25, 1958."
While the precise amount of the settlement was not of particular significance, it *150 may be inferred from the fact he received a substantial amount in settlement that plaintiff was then asserting he received substantial injury from said collision of May 22, 1958. Moreover, as indicated, Dr. Mc-Dowell's testimony was to the effect that he was treating plaintiff primarily for injuries to his neck, not for injuries to plaintiff's back, and that plaintiff did not advise him of any collision in which he was involved in 1958 except the collision of May 22, 1958. Under the circumstances, we think the testimony concerning plaintiff's settlement of April 2, 1959, was relevant and material as bearing upon the credibility of plaintiff's testimony to the effect the only injuries he sustained May 22, 1958, were back injuries.
Evidence was elicited, first by plaintiff's counsel and thereafter by counsel for plaintiff and counsel for defendant, with reference to the amount paid by Winston-Salem, a self-insurer under the Workmen's Compensation Act, to plaintiff, its employee, as (workmen's) compensation and for medical bills, a total of $1,265.30. As provided by G.S. § 97-10.2(e), this evidence was inadmissible. Penny v. Stone, 228 N.C. 295, 45 S.E.2d 362. Ordinarily, the admission of such evidence, over objection, would be error. However, no objection was interposed either by plaintiff or by defendant.
Plaintiff does not assign as error the admission of the evidence relating to payments made under the Workmen's Compensation Act. He assigns as error portions of the charge in which the court refers to this evidence. The gist of the court's instructions was that plaintiff, if entitled to recover from defendant, was entitled to recover all damages ordinarily recoverable in a personal injury action but that the amount recovered, up to $1,265.30, would be used to reimburse Winston-Salem for the payments it had made under the Workmen's Compensation Act. Lovette v. Lloyd, 236 N.C. 663, 668, 73 S.E.2d 886, and cases cited. Thus, the jury was advised, in effect, that plaintiff could not benefit personally from the verdict unless the amount thereof exceeded $1,265.30.
In instructing the jury, the court was confronted by the fact that the evidence concerning the payments made by Winston-Salem under the Workmen's Compensation Act had been admitted and was before the jury. Whether counsel for plaintiff or defendant had based arguments to the jury on such evidence does not appear. We cannot say that the court should have ignored the fact that this evidence had been admitted and was before the jury. Under the circumstances, we do not perceive that the instructions were prejudicial to plaintiff.
Plaintiff's other assignments do not disclose prejudicial error and discussion thereof is deemed unnecessary.
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340053/ | 377 S.C. 346 (2008)
660 S.E.2d 260
Jane DOE, Claimant, Petitioner
v.
SOUTH CAROLINA DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS, Employer, and State Accident Fund, Carrier, Respondents.
No. 26465.
Supreme Court of South Carolina.
Heard December 5, 2007.
Decided March 24, 2008.
Rehearing Denied May 7, 2008.
*347 Edward L. Graham, of Graham Law Firm, P.A., of Florence, for petitioner.
*348 T. McRoy Shelley, III, of Rogers, Townsend & Thomas, PC; and Cynthia B. Polk, all of Columbia, for respondents.
Justice MOORE:
We granted a writ of certiorari to review the Court of Appeals' decision in this workers' compensation case.[1] We reverse.
FACTS
In 1979, petitioner (Claimant) began employment as a licensed practical nurse (LPN) with respondent South Carolina Department of Disabilities and Special Needs (Department). Claimant worked at a Department facility that housed patients in various units. She was the only LPN on first-shift duty in her unit. It was her responsibility to give basic patient care and administer medications.
During the spring of 1997, Department began downsizing the facility. Higher functioning patients were moved to community homes and the remaining patient units were consolidated. As a result, the patient population in Claimant's unit changed from being a passive group to a mixed group of passive and aggressive patients. The record indicates Claimant's unit went from being "a fairly pleasant unit to work in" to being "kind of a dumping ground" where none of the other nurses wanted to work.
The level of noise and violence in Claimant's unit increased dramatically in the spring of 1997. With the combination of patients, the aggressive patients attacked the passive ones and Claimant was forced to intervene. Patient and staff injuries increased significantly. The number of reported incidents in Claimant's unit increased from eleven in March 1997 to 128 in May 1997.[2] Claimant suffered a number of minor physical injuries, including having feces smeared in her face.
After the spring of 1997, Claimant began having problems with depression. She received psychiatric care, including *349 medication and electro-convulsive treatment, and was hospitalized for severe depression in 1998. Dr. Lowe gave his medical opinion that Claimant's depression was caused by her job situation. He noted that Claimant was previously a wellintegrated and functioning person and her sense of self-worth declined when her work situation fell apart. Claimant finally resigned in June 1998 as a result of her inability to work.
Claimant filed this claim for workers' compensation benefits alleging a stress-related mental injury.[3] The single commissioner denied the claim. His findings were adopted by the appellate panel of the full Commission (hereinafter "the Commission"). The circuit court found these findings were unsupported by substantial evidence and reversed. The Court of Appeals reversed the circuit court's order and reinstated the Commission's ruling that Claimant was not entitled to benefits.
ISSUE
Is there substantial evidence to support the Commission's decision regarding causation?
DISCUSSION
Our standard of review requires that we determine whether the circuit court properly found the Commission's findings of fact are not supported by substantial evidence in the record. Baxter v. Martin Bros., Inc., 368 S.C. 510, 630 S.E.2d 42 (2006).
Mental or nervous disorders are compensable provided the emotional stimuli or stressors are incident to or arise from unusual or extraordinary conditions of employment. Powell v. Vulcan Materials Co., 299 S.C. 325, 384 S.E.2d 725 (1989) (adopting analysis of Stokes v. First Nat'l Bank, 298 S.C. 13, 377 S.E.2d 922 (Ct.App.1988)). In Shealy v. Aiken County, 341 S.C. 448, 535 S.E.2d 438 (2000), we surveyed different approaches to determining what constitutes an "unusual and extraordinary" condition of employment. We concluded the *350 standard to be applied is whether the work conditions at issue were unusual compared to the particular employee's normal strains. 341 S.C. at 457, 535 S.E.2d at 443 (citing 2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 44.05(4)(d)(i) (1999)).
Here, the commissioner found there were no extraordinary or unusual conditions in Claimant's employment. He concluded it was not unexpected that patients would be moved from one facility to another, that workers would be subjected to aggressive behavior from patients, or that the amount of care needed by patients would change. The circuit court found the commissioner's findings, adopted by the full Commission, were unsupported by substantial evidence. The court focused on the fact that the mix of passive and aggressive patients was an extraordinary and unusual condition in Claimant's employment and concluded this caused Claimant's stress-related mental injury. We agree with the circuit court's analysis.
The record indicates that in the spring of 1997, with the new mix of passive and aggressive patients in Claimant's unit, behavior problems escalated because of the "domino effect" created when an aggressive patient acted out. Claimant had never before worked with a mix of passive and aggressive patients. No other unit had a mix of passive and aggressive patients. In fact, Department made changes after a DHEC survey criticized Department for housing diverse patients together.
The Court of Appeals reversed the circuit court, finding substantial evidence in the record that supported the Commission's conclusion there were no extraordinary and unusual conditions in Claimant's employment. The Court of Appeals relied on the testimony of Claimant's two co-workers, Tenia Rae Allen and Kim Willis. A review of the record, however, indicates that the testimony relied upon is taken completely out of context and does not support the Court of Appeals' conclusion.
First, the Court of Appeals noted the testimony of Tenia Rae Allen, a nurse supervisor, stating that it was not unusual for nurses to deal with aggressive patients and nurses were injured even before aggressive patients were transferred to Claimant's unit. Nurse Allen never stated that it was usual *351 for a nurse to deal with a mix of passive and aggressive patients. In fact, she testified that Claimant's unit became "pretty chaotic" with the new mix of patients and there was a significant increase in violent behavior even among the patients who formerly were fairly well-controlled. She observed that the change in Claimant's unit was "pretty dramatic," and "yes, I think it could really depress somebody to be there." Other units housed only volatile patients but were smaller units and the staff was used to handling those patients. As a whole, Nurse Allen's testimony supports the conclusion that the mix of passive and aggressive patients in Claimant's unit was an extraordinary and unusual condition compared to the normal strains of Claimant's employment.
The Court of Appeals also noted the testimony of Nurse Willis that, in her experience, there are always patients who are harder to deal with, she expects changes in the types of patients she deals with, and physical confrontation with patients is not unusual. Nurse Willis, however, never discussed caring for a mixed group of passive and aggressive patients. She did say that Claimant's unit had an increase in patients with behavioral problems, including one patient who screamed continuously, and that the difference in caring for "low level" and "high level" patients was a substantial change.
Finally, the Court of Appeals observed that Claimant had non-work related stressors, including a prior bout with depression in 1980 and her father's cancer and death in December 1997, that "could impact her mental injury." There is no support in the record for the conclusion that any of these outside factors caused or even contributed to Claimant's disability. The only evidence of causation is that Claimant's mental injury was caused by her stress at work as stated by Dr. Lowe. Moreover, a history of pre-existing depression does not preclude workers' compensation benefits for a mental-mental injury. See Ellison v. Frigidaire Home Prods., 371 S.C. 159, 638 S.E.2d 664 (2006) (an injured claimant is entitled to benefits for disability arising from a permanent impairment in combination with a pre-existing impairment if the combined effect results in a substantially greater disability).
CONCLUSION
We find no substantial evidence in the record to support the Commission's denial of benefits. Accordingly, we remand for *352 the Commission to award benefits based on Claimant's disability arising from her mental-mental injury.
WALLER, J., and Acting Justice DOYET A. EARLY, III, concur.
TOAL, C.J., concurring in a separate opinion.
PLEICONES, J., dissenting in a separate opinion.
Chief Justice TOAL, concurring:
I concur in the majority's decision to reverse this case, but I write separately because I would resolve the case on different grounds. In my view, two of the tribunals below committed similar errors of law in failing to properly apply the standard for evaluating a workers' compensation claim for mental injuries brought about by emotional stress or stimuli. Accordingly, I would reverse this case without determining whether the lower courts' findings have evidentiary support.
The reasoning of the single commissioner shares a fatal flaw with that employed by the court of appeals in reinstating the single commissioner's decision. In my view, that fatal flaw is the focus on the ordinary aspects of Petitioner's employment to the exclusion of an examination of the extraordinary, and the consequent use of those ordinary aspects to support the conclusion that Petitioner's injury is not compensable. In Stokes v. First Nat'l Bank, the court of appeals adopted the view that mental injuries are compensable if, as in heart attack cases, the mental injury is induced either by physical injury or by unusual or extraordinary conditions of employment. 298 S.C. 13, 21, 377 S.E.2d 922, 926 (Ct.App.1988). We affirmed that decision, noting:
"injury by accident" ... has been construed to mean not only an injury the means or cause of which is an accident, but also an injury which is itself an accident; that is, an injury occurring unexpectedly from the operation of internal or subjective conditions, without the prior occurrence of any external event of an accidental character ... [i]n determining whether something constitutes an "injury by accident" the focus is not on some specific event, but rather on the injury itself. *353 Stokes v. First Nat'l Bank, 306 S.C. 46, 49-50, 410 S.E.2d 248, 250 (1991).
In my view, both the single commissioner and the court of appeals failed to consider whether the changed conditions of Petitioner's employment were, for her, unusual or extraordinary, and similarly failed to evaluate how the changed conditions affected Petitioner. I believe this was error under Stokes, and based on this error of law, I would reverse.
Justice PLEICONES, dissenting:
I respectfully dissent. I believe the Court of Appeals correctly held that the Commission's decision was supported by substantial evidence, and I would affirm the denial of benefits to Claimant.
Because we granted certiorari to review a decision of the Court of Appeals, our standard of review requires us to determine whether the Court of Appeals properly held that the Commission's findings were supported by substantial evidence in the record.[4]
While I am sympathetic to Claimant's struggle with depression, I cannot find error with the Court of Appeals' conclusion. Claimant was an experienced LPN whose patients suffered from severe mental retardation and cognitive disabilities. The Department produced sufficient evidence to show that: (a) the change in the type of patients under Claimant's care was neither unexpected nor unusual; (b) Claimant was trained to handle aggressive patients; and (c) although unfortunate, it was not unusual for Department nurses to be subjected to aggressive and sometimes violent behavior. Despite the fact that Claimant presented ample evidence to support her position, the Commission's findings must be upheld if supported by substantial evidence. See Shealy v. Aiken County, 341 *354 S.C. 448, 455, 535 S.E.2d 438, 442 (2000) (substantial evidence is not evidence viewed solely from one side; it is evidence, when the whole record is considered, that would allow reasonable minds to reach the conclusion the Commission reached).
The Commission found that Claimant was not exposed to unusual and extraordinary conditions in her employment, and in light of the entire record, this conclusion is tenable. Accordingly, I would affirm the Court of Appeals because the Commission's findings are supported by substantial evidence.
NOTES
[1] 364 S.C. 411, 613 S.E.2d 785 (Ct.App.2005).
[2] The number of incidents decreased in June 1997 to 87 and continued declining until the fall of 1997.
[3] Claimant also alleged mental injury stemming from physical injuries she sustained on the job. This claim was denied and is not an issue here.
[4] Under the Administrative Procedures Act, we may not substitute our judgment for that of a state agency as to the weight of evidence on questions of fact, but we may reverse or modify decisions which are clearly erroneous in view of the substantial evidence on the whole record. Welch Moving and Storage Co., Inc. v. Pub. Serv. Comm'n of S.C., 301 S.C. 259, 261, 391 S.E.2d 556, 557 (1990). Baxter, cited by the majority as stating the applicable standard of review, does not apply to this case. Baxter involved a certified appeal directly from the circuit court pursuant to Rule 204, SCACR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340068/ | 660 S.E.2d 118 (2008)
John E. JONES and wife, Frances E. Jones, Petitioners
v.
George D. ROBBINS, Jr., Maxine Robbins Brinkley, and husband, Martin C. Brinkley, Mary P. Coston, Brian F. Coston and wife, Tracy H. Coston, William H. Cook and wife, Jacqueline L. Cook, William H. Robbins, Jr., Corbett Industries, Incorporated, Blue Banks Plantation, LLC, and First Baptist Church of Wilmington, North Carolina, successor in interest to the estate of James H. Smith, Respondents.
Nos. COA07-375, COA07-488.
Court of Appeals of North Carolina.
May 6, 2008.
Lawrence S. Craige & Associates, P.A., by Lawrence S. Craige, Wilmington, for petitioners-appellees.
Stevens, McGhee, Morgan, Lennon, Toll & Carter, L.L.P., by Richard M. Morgan, Wilmington, for respondent-appellant Corbett Industries, Incorporated.
Crossley, McIntosh & Collier, PLLC, by Clay Allen Collier, Wilmington, for respondent-appellee First Baptist Church of Wilmington, North Carolina.
STEELMAN, Judge.
Where the precise location of respondents' properties and the location of a proposed cartway were not an issue before the jury, the trial court did not err in denying appellant's motions for directed verdict or judgment notwithstanding the verdict. The trial court did not abuse its discretion in refusing to give a proposed jury instruction pertaining to appellant's assertion that petitioners intended to develop the property for residential purposes. The trial court erred in setting an appeal bond in this matter.
I. Factual and Procedural History
Petitioners are the owners of a tract of land located in Brunswick County, North Carolina. Respondents are owners of properties that adjoin the petitioners' property or that lie between petitioners' property and a public road. Petitioners' property does not abut a public road. In 2004, respondent Robbins locked a gate barring petitioners from access to their property over a road that they had used for many years. On 18 February 2005, petitioners instituted this action seeking to have a cartway established to provide access to their property, pursuant to N.C. Gen.Stat. §§ 136-68 and 136-69.
The petition alleged that petitioners were "engaged in the cultivation of said land and/or the cutting and removal of standing timber" and that "there is no public road or adequate means of transportation, other than over the Respondent's land, to the Petitioner's property." On 3 June 2005, the Clerk of Superior Court denied the petition. This ruling was appealed to the Superior Court. On 8 February 2006, Judge Lewis entered an order allowing Corbett Industries, Incorporated ("Corbett Industries" or "appellant"), Blue Banks Plantation, and the Estate of James H. Smith as additional respondents. The order stated that these respondents were "parties who own property which may be considered as the location of reasonable access to the Petitioner's tract. . . ." On 27 June 2006, an order was entered substituting First Baptist Church of Wilmington, North Carolina as a respondent in lieu of the Estate of James H. Smith. The church was the devisee of the lands in question under the Smith will.
*120 This matter came on for trial at the 26 June 2006 session of Superior Court. A single issue was submitted to the jury: "Are the petitioners entitled to the establishment of a means of entry to and exit from their land over the land of the respondents?" The jury answered the question in the affirmative. On 23 August 2006, Judge Lewis entered a judgment in favor of petitioners and ordered the matter remanded to the Clerk of Superior Court for "appointment of a jury view."
On 6 September 2006, respondent Corbett Industries filed notice of appeal from this judgment (COA07-375).
On 2 October 2006, petitioners filed a motion seeking access over respondents' lands pending Corbett Industries' appeal. On 1 November 2006, Judge Lewis entered an order denying petitioners' motion, but holding that the judgment entered on 23 August 2006 was a judgment under N.C. Gen.Stat. § 1-292, and that if Corbett Industries desired to stay execution of the judgment, it was required to post a bond. The court set the amount of the bond at five hundred dollars ($500.00). On 27 November 2006, respondent Corbett Industries filed notice of appeal from this order (COA07-488).
II. Appeal of 23 August 2006 Judgment
A. Denial of Corbett Industries' Rule 50 Motions
In its first argument, Corbett Industries contends that the trial court erred in denying its motions for a directed verdict at the close of petitioners' evidence and at the close of all the evidence, and for judgment notwithstanding the verdict. We disagree.
We first note that following the denial of its motion for a directed verdict at the close of petitioners' evidence, respondent Corbett Industries offered evidence. By offering evidence at trial, Corbett Industries has waived appellate review of the denial of this motion. Woodard v. Marshall, 14 N.C.App. 67, 68, 187 S.E.2d 430, 431 (1972). However, by moving for judgment notwithstanding the verdict, it preserved for appellate review its arguments made at the close of all the evidence. Id.
In reviewing motions for a directed verdict or for judgment notwithstanding the verdict, this Court examines the evidence in the light most favorable to the non-moving party, giving that party the benefit of every reasonable favorable inference, and determines whether there was sufficient evidence to submit the issue to a jury. E.g., Hawley v. Cash, 155 N.C.App. 580, 582, 574 S.E.2d 684, 686 (2002). The trial court correctly denies such motions where "there is more than a scintilla of evidence supporting each element of the non-movant's claim." Id. (internal quotations and citations omitted). The reviewing court does not weigh the evidence or assess credibility, but takes petitioners' evidence as true, resolving any doubt in their favor. E.g., In re Will of Dupree, 80 N.C.App. 519, 521, 343 S.E.2d 9, 10 (1986).
Cartway proceedings are governed by the provisions of N.C. Gen.Stat. §§ 136-68 and 136-69, which contemplate a bifurcated procedure. First, it must be determined whether the petitioner has a right to a cartway. In order to establish such a right, the petitioner must establish three things:
1) the land in question is used for one of the purposes enumerated in the statute; 2) the land is without adequate access to a public road or other adequate means of transportation affording necessary and proper ingress and egress; and, 3) the granting of a private way over the lands of other persons is necessary, reasonable and just.
Greene v. Garner, 163 N.C.App. 142, 147, 592 S.E.2d 589, 592-93 (2004) (quoting Davis v. Forsyth County, 117 N.C.App. 725, 727, 453 S.E.2d 231, 232, disc. review denied, 340 N.C. 110, 456 S.E.2d 313 (1995)). Second, "[o]nce the right to a cartway has been determined, the mechanics of locating and laying it off is for the jury of view it is for them to determine the location, its termini, and the land to be burdened thereby." Candler v. Sluder, 259 N.C. 62, 67, 130 S.E.2d 1, 5 (1963) (citing G.S. 136-69; Triplett v. Lail, 227 N.C. 274, 41 S.E.2d 755).
In the instant case, respondent Corbett Industries contends that petitioners failed to present sufficient evidence as to the precise location of its property in relation to the *121 property of petitioners and to public roads. It further contends that petitioners were required to show that its land would be affected by the proposed cartway. Counsel for Corbett Industries openly acknowledges that there is no case in North Carolina raising this issue.
Corbett Industries' argument places the cart before the horse. N.C. Gen. Stat. § 136-68 (2007) requires that the petition be served upon "persons whose property will be affected thereby." This ensures that any party, including appellant, whose land may be affected by the eventual placement of a cartway has notice and an opportunity to be heard on the issue of whether petitioner has the right to a cartway. However, the location of a cartway "is for the jury of view," Candler, 259 N.C. at 67, 130 S.E.2d at 5, not for the first phase of the bifurcated proceedings. Candler makes it clear that a party to a cartway proceeding has a right to appeal both the entitlement of the petitioner to a cartway and its ultimate location by jury view. Id. at 66-67, 130 S.E.2d at 4-5. Corbett Industries is seeking to add a fourth element to petitioners' burden of proof in the first part of the cartway proceeding. We decline to adopt such a requirement when this very issue is reserved for the second phase.
This argument is without merit.
B. Jury Instructions
In its second argument, Corbett Industries contends that the trial court erred in refusing to give a jury instruction requested by Corbett. We disagree.
This issue pertains to the jury instructions on the element of petitioners' claim to establish the right to a cartway, requiring petitioners to show that their land was being used for one of the purposes enumerated in the statute. The trial court instructed the jury that petitioner had to prove by the greater weight of the evidence:
. . . that the petitioners are engaged in, or are preparing to engage in one or more of the activities for which the law provides a right to claim a means of entry to and exit from their land. These activities include cultivation of land, and/or cutting or removal of standing timber. The petitioners are not required to prove that their land will be used only for the cultivation of land, and/or the cutting and removal of standing timber, and for no other purpose. It is sufficient that the cultivation of land and/or the cutting and removal of standing timber is one of the uses to which their land is, or will be put. In this case, the petitioners claim to be engaged in cultivation and/or preparing for cultivation, of their land. To be engaged in cultivation means to use the land for raising crops for either commercial purposes or personal use. To be prepared for the cultivation of land and/or the cutting and removal of standing timber, means that the petitioners are ready to begin cultivating the land, and/or cutting and removing standing timber once they have a means of entry to and exit from their land. The petitioners need not have taken action on the land itself, to prove that they are preparing to begin cultivating the land, and/or cutting and removing standing timber. Other activities by the petitioners relating to the proposed use of the land, would constitute some evidence that the petitioners are preparing for cultivating the land, and/or cutting and removing standing timber.
This instruction conformed with North Carolina pattern jury instructions. 1 N.C.P.I. Civil 840.30 (2000).
Respondent Corbett Industries requested the following additional language:
However, in deciding whether petitioners are engaged in (or are preparing to engage in) one or more of the activities for which the law provides a right to claim a means of entry to and exit from their land, you may consider evidence that tends to show the petitioners seek to establish a cartway over the respondents' land for the residential development of petitioners' land rather than the cultivation or cutting and removal of standing timber from petitioners' land.
In reviewing whether the trial court erred in denying appellant's request for jury instructions, we must review the jury instruction "contextually and in its entirety." Bass v. Johnson, 149 N.C.App. 152, 160, 560 S.E.2d 841, 847 (2002) (citation omitted). *122 The charge will be deemed sufficient if it presents the law of the case so that there is no reasonable cause to believe that the jury was misled. Id. "Refusal of a requested charge is not error where the instructions fairly represent the issues. The decision whether to give [an] instruction[ ] is within the trial court's sound discretion, and will not be overturned absent an abuse of discretion." Osetek v. Jeremiah, 174 N.C.App. 438, 440, 621 S.E.2d 202, 204 (2005) (internal citations omitted).
We note that Corbett Industries bases its entire argument upon one case, Turlington v. McLeod, 79 N.C.App. 299, 339 S.E.2d 44 (1986)("Turlington I"), where this Court held that a petitioner with reasonable access through a permissive right of way is not entitled to a cartway. Id. at 305, 339 S.E.2d at 49. Turlington I was followed by Turlington v. McLeod, 323 N.C. 591, 374 S.E.2d 394 (1988)("Turlington II"), in which our Supreme Court upheld the awarding of a cartway to Turlington, based upon the harvesting of timber for firewood, an activity specifically found by the trial court in Turlington I. Appellant contends that the Turlington I Court held that "a cartway will not be allowed when the petitioner is not legitimately putting his land to an approved use but is instead . . . attempting to show a statutory use in order to establish a cartway to further his actual intended use, which was a commercial use not allowed by statute."
We hold that Turlington I is not controlling in the question of Corbett Industries' proposed jury instructions in this case. Turlington I was tried before a judge and not a jury. Thus, jury instructions were not at issue. In concluding that the "question of usage was properly one for the factfinder[,]" the Turlington I Court observed that "the trial court was obviously familiar with the rule of Candler that petitioner's commercial use of the land would not defeat his right to a cartway if he could also show a legitimate statutory use of the land." Turlington I, 79 N.C.App. at 303, 339 S.E.2d at 47. Indeed, the Candler rule succinctly states the law of this case.
The trial court's instructions fairly and accurately stated the petitioners' element of proof as to the use of their property. Candler, 259 N.C. at 65, 130 S.E.2d at 4. Appellant's requested instructions gave undue emphasis to Corbett Industries' contention that petitioners intended to use the land for future residential development, which, while not enumerated under the statute, does not defeat petitioners' right to a cartway. Id. The statute does not require petitioners to prove that one of the statutory purposes was the exclusive usage or proposed usage of the land. We thus hold that the trial court did not abuse its discretion in refusing to give appellant's requested instruction.
This argument is without merit.
III. Appeal of Order of 1 November 2006
In its third argument, Corbett Industries contends that the trial court erred in ruling that the judgment of 23 August 2006 was a judgment under N.C. Gen.Stat. § 1-292 and setting an appeal bond. We agree.
N.C. Gen.Stat. § 1-292 provides that, when a judgment "directs the sale or delivery of possession of real property, the execution is not stayed, unless a bond is executed[.]" N.C. Gen.Stat. § 1-292 (2007).
In her order of 1 November 2006, Judge Lewis denied petitioners' motion to gain access over respondents' lands pending the outcome of appeal COA07-375. The 23 August 2006 judgment remanded the case to the Clerk of Superior Court for a jury view to establish the location of the cartway. As such, it does not "direct the sale or delivery of possession of real property." As discussed above, the judgment of 23 August 2006 only established petitioners' right to a cartway, not its location.
We hold that the trial court erred in setting an appeal bond in this matter.
As to appeal COA07-375: NO ERROR.
As to appeal COA07-488: REVERSED.
Judges WYNN and GEER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340147/ | 660 S.E.2d 481 (2008)
BURDEN
v.
The STATE.
No. A08A0629.
Court of Appeals of Georgia.
April 3, 2008.
*482 Agis Reginald Bray, III, for Appellant.
Kenneth B. Hodges, III, Dist. Atty., Shelly D. Faulk, Asst. Dist. Atty., for Appellee.
BLACKBURN, Presiding Judge.
Following a jury trial, Larraquette Burden appeals his conviction of armed robbery (one count) and aggravated assault (three counts), contending that (1) the evidence was insufficient to support the verdict, (2) the trial court erred by not charging the jury on robbery by intimidation as a lesser included offense of armed robbery, and (3) the trial court erred by not charging the jury on self-defense. Because there was sufficient evidence to support the verdict and because Burden did not request the omitted jury charges in writing, we affirm.
"On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility." (Punctuation omitted.) Eady v. State.[1]
So viewed, the evidence shows that while Altravious Thomas waited with a friend in the friend's SUV to pick up a car at a car wash, Burden pulled in behind the SUV in a Lincoln sedan, blocking in Thomas and his friend. Burden got out of the Lincoln with a gun and approached Thomas, demanding $200 and accusing Thomas of selling him defective drugs. Burden put the gun to Thomas's side and threatened, "Give it up right now or I'm gonna shoot you." Not having the money, Thomas gave his cell phone to Burden, who drove off in the Lincoln.
Thomas quickly followed in the SUV and called 911 with his friend's cell phone. As Thomas and his friend neared Burden, Burden stopped his car, got out, and started firing his gun at Thomas and his friend. The gunfire missed Thomas and his friend, but one bullet hit a bystander sitting on his front porch. Burden then got back in his car and fled the scene.
*483 After Thomas later identified Burden in a photo lineup, Burden was charged with one count of armed robbery and four counts of aggravated assault. Following a jury trial in which he was found guilty on all counts (with one aggravated assault charge merging into the armed robbery charge), Burden moved for a new trial, which motion was denied, giving rise to this appeal.
1. Burden contends that the evidence was insufficient to support the verdict. We disagree.
When we review a challenge to the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) Jackson v. Virginia.[2]
(a) With respect to the armed robbery charge, OCGA § 16-8-41 (a) provides that "[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon." Here, Thomas testified that Burden took his cell phone while Burden pointed a gun at Thomas and threatened to shoot him. This evidence sufficed to support the guilty verdict as to the armed robbery charge. That there was allegedly conflicting evidence or that other witnesses could not testify as to the same facts is not cause for reversal, as "[t]he testimony of a single witness is generally sufficient to establish a fact." OCGA § 24-4-8. See Dunn v. State[3] ("the victim's testimony alone is sufficient to authorize the jury's verdict of guilty beyond a reasonable doubt") (punctuation omitted).
(b) With respect to the aggravated assault charges, OCGA §§ 16-5-20(a) and 16-5-21(a)(2) define the crimes of which Burden was convicted, i.e., using a deadly weapon (a gun) (i) in an attempt to commit a violent injury to the person of another, or (ii) in an act which places another in reasonable apprehension of immediately receiving a violent injury.
Here, Burden was convicted of three counts of aggravated assault based on the bystander who was shot and Burden's shooting at Thomas and his friend. Burden contends that the evidence did not show that he was the shooter, or that (if he was) the evidence did not show that he was shooting at Thomas and his friend. However, at trial, Thomas testified that after he and his friend chased Burden, Burden "got out of the car and started firing . . . then me and [the friend] ducked down in the truck." Further, an eyewitness testified that the driver of the car (Burden) was shooting at the SUV (in which Thomas and his friend rode). This testimony sufficed to show that Burden was the shooter and that he was shooting at Thomas and his friend, especially in light of the evidence of Burden's robbery of Thomas at gunpoint and the immediate pursuit by Thomas and his friend. See OCGA § 24-4-8. Finally, there was testimony from at least one witness that the bystander was hit at the scene where Burden was the shooter. Accordingly, the jury was authorized to find Burden guilty of the aggravated assault counts. See Thompson v. State.[4]
2. Burden contends that the trial court erred by not charging the jury on the lesser included charge of robbery by intimidation. However, Burden did not request in writing that such a charge be given. "Absent a written request for a charge on a lesser included offense, made at or before the close of the evidence, the failure to so charge is not error." (Punctuation omitted.) Hawkins v. State.[5] Further, Burden did not take the stand and testify, and there was no other evidence that Burden did not have a gun, despite three witnesses testifying to seeing Burden with the gun at the car wash where he robbed Thomas. Therefore, as the evidence *484 did not show the lesser included charge of robbery by intimidation, the trial court did not err in failing to give the charge (even if it had been requested in writing). See Jordan v. State[6] (finding no error in trial court's failure to charge on robbery by intimidation where there was no evidence that a gun was not used in armed robbery); Carter v. State.[7]
3. Burden also contends that the trial court erred by failing to charge the jury on self-defense, which he contends was his sole defense. However, because the record is clear that self-defense was not Burden's sole defense, this enumeration is without merit.
Although Burden did not submit a written request for a charge on self defense, "[t]he trial court must charge the jury on the defendant's sole defense, even without a written request, if there is some evidence to support the charge." Tarvestad v. State.[8] Therefore, Burden argues that the trial court should have charged the jury on self defense. However, Burden's contention that self defense was his sole defense (or was even argued) is belied by the record. At trial, Burden's counsel began her opening statement by saying, "Members of the jury, this case is going to be about mis-identification." During the State's case-in-chief, Burden's counsel pressed the State's witnesses on their identification of Burden, challenging their opportunity to view him, impugning their descriptions, and attacking a photo lineup. At closing argument, Burden's trial counsel asserted that "Larraquette Burden did not rob anybody. Larraquette Burden did not shoot anyone. . . . From the evidence in the case you know that the answer is, `No, he didn't do this.' This is a case about mistaken identity." Therefore, as self-defense was not Burden's only defense (nor did he even argue it at trial), and as Burden did not request a charge on self-defense in writing, we discern no error. See Rowland v. State.[9]
Judgment affirmed.
MILLER and ELLINGTON, JJ., concur.
NOTES
[1] Eady v. State, 256 Ga.App. 696, 569 S.E.2d 603 (2002).
[2] Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[3] Dunn v. State, 262 Ga.App. 643, 645(1), 586 S.E.2d 352 (2003).
[4] Thompson v. State, 281 Ga.App. 627, 629(1), 636 S.E.2d 779 (2006).
[5] Hawkins v. State, 267 Ga. 124, 125(3), 475 S.E.2d 625 (1996).
[6] Jordan v. State, 278 Ga.App. 126, 130(3), 628 S.E.2d 221 (2006).
[7] Carter v. State, 257 Ga.App. 620, 622(1), 571 S.E.2d 831 (2002).
[8] Tarvestad v. State, 261 Ga. 605, 606, 409 S.E.2d 513 (1991).
[9] Rowland v. State, 228 Ga.App. 66, 68(1), 491 S.E.2d 119 (1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340364/ | 128 S.E.2d 894 (1963)
258 N.C. 405
Ruby QUEEN
v.
David JARRETT and Harold R. Mitchell.
No. 389.
Supreme Court of North Carolina.
January 11, 1963.
*896 Deal, Hutchins & Minor, Winston-Salem, for defendant appellant Jarrett.
Jordan, Wright, Henson & Nichols and G. Marlin Evans, Greensboro, for defendant appellant Mitchell.
W. H. Steed, Thomasville, for plaintiff appellee.
BOBBITT, Justice.
The appeal of each defendant requires separate consideration.
MITCHELL'S APPEAL
Mitchell's only assignment of error is directed to the court's denial of his motions for judgment of nonsuit.
When plaintiff offered her evidence and rested, Mitchell moved for judgment of nonsuit; and, when the court refused his said motion, Mitchell excepted to the court's ruling and announced that he did not choose *897 to introduce evidence. G.S. § 1-183. He contends he did not offer evidence or otherwise waive his exception to said ruling.
Unquestionably, testimony subsequently offered by Jarrett and by plaintiff includes evidence favorable to plaintiff, Mitchell contends this evidence may not be considered, that the question as to nonsuit is whether the evidence offered by plaintiff before she (originally) rested her case was sufficient to support a finding that plaintiff was injured by his (Mitchell's) actionable negligence. As in Van Landingham v. Singer Sewing Machine Co., 207 N.C. 355, 177 S.E. 126, where a similar question was raised, we find it unnecessary on this record to pass upon Mitchell's said contention.
Mitchell contends his said motion for judgment of nonsuit should have been allowed because the evidence was insufficient to support plaintiff's allegations as to his (Mitchell's) actionable negligence.
According to plaintiff's testimony, Jarrett had been following the Mitchell truck "about a mile or half a mile," stayed "within four or five feet of it," both vehicles proceeding north in the east traffic lane at a speed of 55 miles per hour when they reached and entered the passing zone.
There is merit in Mitchell's contention that G.S. § 20-151 is not applicable to the factual situation presented by plaintiff's evidence. Dreher v. Divine, 192 N.C. 325, 135 S.E. 29, 47 A.L.R. 696. Moreover, as discussed in connection with Jarrett's appeal, according to plaintiff's allegations and testimony, the collision was proximately caused by the act of each defendant in turning from a direct line of traffic, not because Jarrett or Mitchell was driving at excessive speed. Too, while plaintiff, as set forth in the statement of facts, alleged each defendant violated the provisions of the reckless driving statute, G.S. § 20-140, she did not indicate the conduct she considered "reckless driving." In this connection, see Dunlap v. Lee, 257 N.C. 447, 126 S.E.2d 62.
Plaintiff did allege Mitchell "failed to keep a proper lookout and failed to observe the traffic conditions then and there existing upon said highway." This allegation must be considered in relation to plaintiff's basic factual allegation, namely, "as the defendant Jarrett attempted to pull around the defendant Mitchell, the defendant Mitchell also pulled his truck to the left of the center of the highway, at which time the right front of the defendant Jarrett's automobile collided with the left rear side of the defendant Mitchell's truck."
According to plaintiff's evidence, there was, within the passing zone, a line of traffic, "other traffic ahead of the pickup truck." Plaintiff testified (1) that she saw no signal given by Mitchell "for a change of lane," and (2) that "the rear bumper of the pickup truck caught the right front fender of Jarrett's car." True, plaintiff testified that Jarrett blew his horn just as he pulled out to pass the pickup truck. Moreover, the collision occurred in a zone where it might be reasonably anticipated that passing would be attempted.
The provisions of G.S. § 20-154 are pertinent to the basic factual situation alleged by plaintiff. Moreover, plaintiff's testimony, when considered in the light most favorable to her, was sufficient to support findings that Mitchell, in violation of G.S. § 20-154, turned from a direct line of travel (1) without seeing that such movement could be made in safety, and (2) without giving the required signal of his intention to do so.
True, plaintiff's allegations contain no reference to G.S. § 20-154. Nor does plaintiff allege Mitchell failed to signal his intention to turn from his direct line of travel. Even so, without reference to statutory provisions, plaintiff's allegations, as indicated above, to the effect that Mitchell, without keeping a proper lookout and without observing traffic conditions then and there existing upon the highway, drove his truck to the left of the center of the highway as Jarrett was attempting to pull around him, and the evidence in support *898 thereof, were sufficient to require submission of an issue as to Mitchell's actionable negligence and to support a jury finding in favor of plaintiff. We are of opinion, and so decide, that the evidence offered by plaintiff before she (originally) rested her case was sufficient to withstand Mitchell's motion for judgment of nonsuit.
Since Mitchell does not assign error in any other respect, the verdict and judgment, as between plaintiff and defendant Mitchell, will not be disturbed.
JARRETT'S APPEAL
The only assignments of error brought forward and discussed in Jarrett's brief relate to the court's instructions to the jury.
Jarrett excepted to and assigns as error the following portion of the court's charge:
"So, as you find from the evidence and by the greater weight thereof, the burden of proof being on the plaintiff to so satisfy you, if you find it was a thirty-five mile zone, then you will consider the maximum speed for each of the vehicles to be thirty-five; but if you fail to so find from the evidence and by the greater weight thereof, then the speed restriction will be the openroad or fifty-five miles per hour as the maximum speed."
There was uncontradicted evidence that the area in which the collision occurred was annexed to and became a part of the City of High Point early in 1961 and that Westchester Drive was "kind of a by-pass around High Point." Elsewhere in the charge, the court instructed the jury that, according to all the evidence, the place where the collision occurred was not in a business or residential district.
Preceding the quoted portion, the court, in instructing the jury, read the provisions of paragraphs (a), (b) except subsection 3 thereof, (c), and (d), of G.S. § 20-141 as set forth in G. S. Volume 1C, Recompiled 1953.
G.S. § 20-141(d) provides:
"Whenever the State Highway and Public Works Commission shall determine upon the basis of an engineering and traffic investigation that any speed herinbefore set forth is greater than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of a highway, said Commission shall determine and declare a reasonable and safe speed limit thereat, which shall be effective when appropriate signs giving notice thereof are erected at such intersection or other place or part of the highway."
Immediately preceding the quoted portion, the court, reviewing the contentions of plaintiff and of defendants, respectively, with reference to whether the collision occurred within a 35-mile speed zone, said:
"Plaintiff insists and contends that at the time of this accident that only two signs were there leading up north in the direction of the place of the accidentthat one was some two miles or more back which said a `thirty-five mile zone,' and then another one was about one and six-tenths miles by measurement from the place of the accident, and that that was the last thirty-five mile zone sign; that there were no other speed restriction signs placed on the highway by the Highway Commission at any place between where the first sign was placed and where the second sign was placed and where the point of the accident took place. Therefore, plaintiff insists and contends that you should find that it was a thirty-five mile zone.
"The defendants on the other hand insist and contend that they were too far away from the nearest sign to designate this area as a thirty-five mile zone, but that on the date of the accident, some year ago, there was a sign in between the two, beyond the last one which was one and six-tenths miles from the place of the accident, stating Resume safe Speed' which was a highway *899 sign but which has been removed; and that neither of the signs was close enough to establish this area as a thirty-five mile zone from the signs erected by the Highway Commission."
For the reasons stated below, we think the quoted instruction is erroneous and prejudicial and that Jarrett is entitled to a new trial on account thereof.
In addition to the evidence referred to in the court's quoted review of contentions, there was other evidence as to highway (speed) signs, the location thereof and when observed. Moreover, there were conflicts in the evidence relating to such signs. Assuming, but not deciding, there was evidence which, when considered in the light most favorable to plaintiff, would support a finding that the Highway Commission had erected appropriate signs giving notice to northbound traffic that the portion of Westchester Drive in which the collision occurred was in a 35-mile speed zone, the quoted instruction is deficient in that it fails to provide the jury with any guide or standard as to what facts plaintiff was required to establish as a basis for a finding that the collision occurred within a 35-mile speed zone. Hence, the quoted instruction does not comply with the requirements of G.S. § 1-180.
There was evidence that, immediately preceding the collision, both Jarrett and Mitchell were operating their respective motor vehicles at a speed in excess of 35 miles per hour. However, if it be conceded that the collision occurred within a 35-mile speed zone, and if the collision occurred as set forth in plaintiff's allegations and evidence, it does not appear that excessive speed was a proximate cause of the collision.
It is well settled that a plaintiff must make out his case secundum allegata. His recovery, if any, must be on the cause of action alleged in the complaint. Nix v. English, 254 N.C. 414, 421, 119 S.E.2d 220, and cases cited; Howell v. Smith, 258 N.C. 150, 154, 128 S.E.2d 144.
Plaintiff testified and alleged (as we construe her complaint) that both Mitchell and Jarrett had been and were proceeding in the east lane when they entered the zone where passing was permitted, the Jarrett car directly behind the Mitchell truck. Nothing in plaintiff's allegations or testimony indicates Jarrett by reason of excessive speed collided with the rear of the Mitchell truck. According to the facts alleged by plaintiff and according to her testimony, the collision was proximately caused by the act of each defendant in turning from a direct line of traffic, not because Jarrett or Mitchell was driving at excessive speed. Hence, the extended instructions as to statutory provisions relating to speed and speed zones were inapplicable to the factual situation set forth in plaintiff's allegations and testimony. Under these circumstances, we are constrained to hold that such instructions were erroneous and prejudicial. Powell v. Clark, 255 N.C. 707, 711, 122 S.E.2d 706, and cases cited.
True, if Mitchell's testimony were accepted, namely, testimony to the effect that Jarrett overtook and struck the rear of the Mitchell truck as it was proceeding straight in the center lane and alongside a station wagon (in the east lane) the Mitchell truck was passing, testimony as to excessive speed on the part of Jarrett would be relevant. However, this is not the case against Jarrett set forth in plaintiff's allegations and testimony. Obviously, the plaintiff cannot predicate her case against Mitchell on one basic factual situation and her case against Jarrett on a different and inconsistent basic factual situation.
In view of the foregoing, the verdict and judgment, as between plaintiff and defendant Jarrett, are vacated; and, as between plaintiff and Jarrett, there must be a new trial.
As to defendant Mitchell, no error.
As to defendant Jarrett, new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340094/ | 660 S.E.2d 657 (2008)
FRIENDS OF MT. VERNON SPRINGS, INC., Alan A. Rosenbloom, Elizabeth A. Dixon, Vonnell Palmer, and Misty Batten, Petitioners,
v.
TOWN OF SILER CITY, Charles L. Turner, in his capacity as Mayor, and Tony Siler, James Larry Cheek, Patricia Perry, John F. Grimes, III, Sam P. Adams, Jr., Helen Buckner, and Guy D. Smith, in their capacity as members of the Town Board of Commissioners, Respondents, and
ISP Minerals, Inc., Respondent-Intervenor.
No. COA07-1484.
Court of Appeals of North Carolina.
May 20, 2008.
John D. Runkle, Chapel Hill, for petitioner-appellants.
The Brough Law Firm, by William C. Morgan, Jr., Asheville, for respondent-appellees.
No brief filed for respondent-intervenor.
*659 TYSON, Judge.
Friends of Mt. Vernon Springs, Inc., Alan A. Rosenbloom, Elizabeth A. Dixon, Vonnell Palmer, and Misty Batten (collectively, "petitioners") appeal from order entered, which: (1) denied petitioners' motion for summary judgment; (2) granted the Town of Siler City's ("the Town") and the Town of Siler City Board of Commissioners's ("the Board") (collectively, "respondents") motion for summary judgment; and (3) affirmed the decision of the Board. We affirm.
I. Background
On 30 March 2006, ISP Minerals, Inc. ("ISP") submitted a "Conditional Use Rezoning and Permit Application" to the Town and sought: (1) to have approximately 1,076 acres rezoned from Agriculture-Residential to Heavy Industrial Conditional Use and (2) a conditional use permit to construct and operate a quarry and granule processing facility ("the facility"). On 3 July 2006, the Board approved ISP's application to rezone the property and granted ISP's conditional use permit.
On 1 August 2006, petitioners filed a Petition for Writ of Certiorari and Declaratory Judgment and petitioned the superior court to find and rule that the Board's approval of ISP's application to rezone the property and the grant of ISP's conditional use permit was improper and void. In addition to the action at bar, three other petitions were also filed, which challenged the Board's actions. On 22 September 2006, ISP filed a motion to intervene in each of the actions in which it had not been named as a party.
On 13 March, 16 April, and 14 May 2007, the superior court held hearings on all cases simultaneously. On 27 June 2007, the superior court filed its order, which: (1) allowed respondents' motions for summary judgment; (2) denied petitioners' motions for summary judgment; and (3) affirmed the Board's decision to rezone the property and to issue a conditional use permit to ISP. Petitioners appeal.
II. Issues
Petitioners argue the superior court erred when it: (1) ruled on the parties' motions for summary judgment and (2) affirmed the Board's decision to rezone the property and to issue a conditional use permit.
III. Motions for Summary Judgment
Petitioners argue the superior court erred when it granted respondents' motion for summary judgment after ISP notified the superior court that it had withdrawn from the project. We disagree.
On 14 May 2007, ISP's counsel told the superior court, "ISP Minerals, as the sole applicant for the conditional use permit and rezoning[,] is no longer pursuing the permit for which that would have been useful and therefore we have no objection to . . . however the Court chooses to dispose of this matter with respect to [respondents' 11 May 2007] motion [to dismiss]." Petitioners argue, "[t]he withdrawal by ISP . . . at the last moment biased the outcome of the hearing in that the [superior] [c]ourt could determine in a Solomon-like ruling that the issuance of the permit was reasonable, knowing that the projected [sic] would not occur regardless of what [sic] the [superior] [c]ourt ruled." We disagree.
Mootness arises where the original question in controversy is no longer at issue. In re Denial of Request by Humana Hospital Corp., 78 N.C.App. 637, 640, 338 S.E.2d 139, 141 (1986).
Whenever, during the course of litigation it develops that the relief sought has been granted or that questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.
In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2859, 61 L.Ed.2d 297 (1979).
ISP's statement to the superior court that it was no longer pursuing the permit did not dispose of "the original question in controversy. . . ." Humana Hospital, 78 N.C.App. at 640, 338 S.E.2d at 141. The relief sought by *660 petitioners was a declaration that the Board's rezoning and grant of a conditional use permit were improper and void. The sole question in controversy raised by petitioners' petition was the validity of the Board's rezoning and issuance of the conditional use permit. ISP's withdrawal did not render moot petitioners' petition, which sought a declaration that the Board's rezoning and grant of a conditional use permit were improper and void. The validity of the Board's actions, the only question in controversy, remained at issue after ISP's withdrawal. ISP's withdrawal was not a "develop[ment] that [caused] the relief sought [to be] granted [n]or th[e] question[] originally in controversy between the parties [to be] no longer at issue. . . ." Id. The superior court did not err when it ruled on the parties' motions for summary judgment. This assignment of error is overruled.
IV. Superior Court's Review of the Board's Actions
Petitioners argue the superior court erred when it affirmed the Board's decision to rezone the property and to issue a conditional use permit. We disagree.
A. Standard of Review
When the superior court reviews the decision of a town council or administrative body, it should:
(1) review the record for errors of law, (2) ensure that procedures specified by law in both statute and ordinance are followed, (3) ensure that appropriate due process rights of the petitioner are protected, including the right to offer evidence, cross-examine witnesses, and inspect documents; (4) ensure that the decision is supported by competent, material, and substantial evidence in the whole record; and (5) ensure that the decision is not arbitrary and capricious.
The task of this Court in reviewing a superior court order is (1) to determine whether the [superior] court exercised the proper scope of review, and (2) to review whether the [superior] court correctly applied this scope of review.
Humane Soc'y of Moore Cty., Inc. v. Town of Southern Pines, 161 N.C.App. 625, 628-29, 589 S.E.2d 162, 165 (2003) (internal citations and quotations omitted).
B. Analysis
"When a party alleges an error of law in the Council's decision, the reviewing court examines the record de novo, considering the matter anew. However, when the party alleges that the decision is arbitrary and capricious or unsupported by substantial competent evidence, the court reviews the whole record." Id. at 629, 589 S.E.2d at 165 (citations omitted). On appeal to the superior court, petitioners argued the Board's actions were "arbitrary and capricious, contrary to law and in a manner that was an abuse of discretion, and made with disregard for the due process and equal protection rights of the [p]etitioners." The superior court did not err when it "utiliz[ed] both the `de novo' and `whole record' tests. . . ." in its review of the Board's actions. Id. We now turn to whether the superior court correctly applied "both the `de novo' and `whole record' tests. . . ." Id.
The superior court's order, filed 27 June 2007, stated:
[T]he court has reviewed the decision of the . . . Board . . . utilizing both the "de novo" and "whole record" tests and concludes as follows with regards to the granting of the conditional use permit: (1) The decision of the . . . Board . . . to grant the conditional use permit to ISP . . . was based on and supported by competent, material, and substantial evidence in the whole record; (2) the Board . . . did not act arbitrarily nor capriciously in issuing the conditional use permit; (3) the Board . . . conducted the public hearings on this matter in a manner that did not violate [p]etitioners' rights to due process; (4) all procedures provided for in the Town['s] . . . Unified Development Ordinance and all other applicable law were followed; and, (5) the Board . . . did not commit any errors of law in its consideration of this matter.
As for the rezoning component of this matter, the [c]ourt has reviewed the pleadings, *661 cross-motions for summary judgment, briefs, the Record of Proceedings and arguments of counsel and has determined that the . . . Board . . .: (1) acted appropriately in making the legislative decision to rezone the . . . property from AR (Agricultural-Residential) to HI-CU (Heavy Industrial-Conditional Use); (2) the Board['s] . . . decision does not constitute "spot zoning;" (3) [p]etitioners' rights to due process were afforded them; and (4) that the rezoning decision was consistent with the Town['s] . . . Land Development Plan; and (5) the rezoning decision was not arbitrary and capricious.
In stating its factual conclusions, the superior court neither re-weighed the evidence nor substituted its judgment for the Board's. The superior court properly reviewed the quantum and not the quality or credibility of the evidence and found it to be sufficient to affirm the Board's decisions. The superior court properly applied its whole record review when it examined all the evidence to determine if substantial evidence supported the Board's findings and conclusions. Id.
Our Supreme Court has stated:
A zoning ordinance, or amendment, which singles out and reclassifies a relatively small tract owned by a single person and surrounded by a much larger area uniformly zoned, . . . so as to relieve the small tract from restrictions to which the rest of the area is subjected, is called "spot zoning."
Blades v. City of Raleigh, 280 N.C. 531, 549, 187 S.E.2d 35, 45 (1972). "[I]n any spot zoning case . . . two questions must be addressed by the finder of fact: (1) did the zoning activity . . . constitute spot zoning as our courts have defined that term; and (2) if so, did the zoning authority make a clear showing of a reasonable basis for the zoning." Chrismon v. Guilford County, 322 N.C. 611, 627, 370 S.E.2d 579, 589 (1988).
Here, the tract in question is approximately 1,076 acres. This tract is not "a relatively small tract" as contemplated in Blades and the zoning activity did not "constitute spot zoning as our courts have defined that term[.]" 280 N.C. at 549, 187 S.E.2d at 45; Chrismon, 322 N.C. at 627, 370 S.E.2d at 589. The superior court did not err when it concluded "the Board['s] . . . decision d[id] not constitute `spot zoning[.]'"
In reaching its remaining legal conclusions, the superior court considered the matter anew and held the evidence and findings of fact supported the Board's conclusions of law. There is ample support in the record for the conclusion that the rezoning of the tract was not arbitrary or discriminatory, may reasonably be deemed related to the public welfare and is not inconsistent with the purpose for which the Town is authorized to enact zoning regulations. The superior court's conclusion that the Board did not act arbitrarily or capriciously, is supported by the superior court's findings of fact, which, in turn, are supported by competent evidence in the record. Zopfi v. City of Wilmington, 273 N.C. 430, 438, 160 S.E.2d 325, 333 (1968). The superior court correctly applied the de novo standard of review. Humane Soc'y of Moore Cty., 161 N.C.App. at 629, 589 S.E.2d at 165. This assignment of error is overruled.
V. Conclusion
ISP's withdrawal did not grant the relief sought by petitioners nor dispose of the original question in controversy: the validity of the Board's actions. Humana Hospital, 78 N.C.App. at 640, 338 S.E.2d at 141. The superior court did not err when it ruled on the parties' motions for summary judgment, notwithstanding ISP's withdrawal.
The superior court exercised the proper scopes of review and correctly applied those scopes of review. Humane Soc'y of Moore Cty., 161 N.C.App. at 629, 589 S.E.2d at 165. The superior court's order is affirmed.
Affirmed.
Judges McCULLOUGH and STROUD concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340098/ | 660 S.E.2d 197 (2008)
STATE of North Carolina
v.
Wanda DIETZE.
No. COA07-1066.
Court of Appeals of North Carolina.
May 6, 2008.
Attorney General Roy Cooper, by Assistant Attorney General Rufus C. Allen, for the State.
Richard E. Jester, Louisburg, for defendant-appellant.
WYNN, Judge.
Under North Carolina law, filing a false report to the police by itself is not a crime; rather, the false report is unlawful only if made "for the purpose of interfering with the law enforcement agency or hindering or obstructing the officer in the performance of his duties."[1] Here, the State failed to present any evidence that the defendant filed a false report with that unlawful purpose. Accordingly, we reverse her conviction.
According to the State, Defendant Wanda Dietze filed a false report in September 2006, accusing Nicholas Hernandez of misdemeanor stalking. Defendant and Mr. Hernandez had worked at the Duke Eye Center during the same time period, although Defendant subsequently left her position. She was then charged, in April 2005, with making harassing telephone calls to employees at the Eye Center, including Mr. Hernandez. Defendant had also previously accused Mr. Hernandez of sexual harassment, but the Eye Center determined the claim was unfounded.
After investigating Defendant's complaint against Mr. Hernandez for misdemeanor stalking, the State decided that Defendant's claims were baseless and dismissed the charges prior to Mr. Hernandez's trial. During that time period, Defendant also called a Duke University police officer up to thirty-two times a day, as well as regularly called and left messages for the Assistant District Attorney (ADA) who was prosecuting Mr. Hernandez. According to the ADA, Defendant likewise constantly telephoned the Durham Police Department sergeant in charge of her case. After dismissing the charges against Mr. Hernandez, the ADA charged Defendant with filing a false report to a police station because Defendant "was the one who's instigating all the activity. . . . And because of the persistence of [Defendant], . . . if we did not charge her that it would be a situation where she would continually try to take charges against people at Duke."
After a January 2007 conviction in District Court, Defendant appealed to Superior Court, where she was found guilty by a jury. The trial court entered judgment against her on 27 March 2007 and sentenced her to thirty days in the Durham County Jail, to be suspended for eighteen months while she was on supervised probation. As a condition of her probation, the trial court also required Defendant not to have any contact with Mr. Hernandez and certain other Duke Eye Center *199 employees, as well as undergo a mental health evaluation.
Defendant now appeals to this Court, arguing that the trial court erred by (I) denying her motion to dismiss or to set aside the verdict for insufficient evidence, and (II) allowing a tape recording to be entered into evidence, in violation of her right to confrontation and of the prohibition against hearsay. Because Defendant's first argument is dispositive in deciding her appeal, we decline to consider the second issue.
To survive a motion to dismiss, the State must have presented "substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation and quotations omitted), cert. denied, 543 U.S. 1156, 125 S.Ct. 1301, 161 L.Ed.2d 122 (2005). "Substantial evidence" is "relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion." Id. (internal citations omitted). In considering a motion to dismiss by the defense, such evidence "must be taken in the light most favorable to the state . . . [which] is entitled to all reasonable inferences that may be drawn from the evidence." State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986).
According to North Carolina law,
Any person who shall willfully make or cause to be made to a law enforcement agency or officer any false, misleading or unfounded report, for the purpose of interfering with the operation of a law enforcement agency, or to hinder or obstruct any law enforcement officer in the performance of his duty, shall be guilty of a Class 2 misdemeanor.
N.C. Gen.Stat. § 14-225 (2005). Our state Supreme Court has further observed that "making a false statement to the police, standing alone, . . . is not a crime." State v. Hughes, 353 N.C. 200, 204-05, 539 S.E.2d 625, 629 (2000). Rather, as emphasized by our Supreme Court, such a false report is unlawful only if it is made "for the purpose of interfering with the law enforcement agency or hindering or obstructing the officer in the performance of his duties." Id. at 205, 539 S.E.2d at 629 (quoting N.C. Gen.Stat. § 14-225).
We note, too, that the statutory prohibition against filing a false report to law enforcement is found in the chapter of our state criminal law that describes activities that constitute the obstruction of justice. See N.C. Gen.Stat. §§ 14-221 et seq. These statutes, including prohibitions against jury tampering, witness intimidation, and failure to comply with a court order, are designed to ensure that our citizens do not interfere with the administration of justice in our society. Nevertheless, the plain language of N.C. Gen.Stat. § 14-225, in its requirement that a false report be made "for the purpose of interfering with the law enforcement agency or hindering or obstructing the officer in the performance of his duties," makes clear that the General Assembly did not seek punishment for those making false reports unless they acted with malicious intent. As written, the statute encourages citizens to make a report and seek assistance if they have been victimized even if some details of that report are ultimately found to be untrue without fear of criminal repercussions. Indeed, the statutory language reflects a legislative intent to deter only the type of false report that is designed to confound a police investigation or otherwise squander precious law enforcement resources.
Here, although the State presented sufficient evidence that Defendant willfully made a false report to the police that she had been stalked by Mr. Hernandez, there is no evidence in the record or transcripts that she did so "for the purpose of interfering with the law enforcement agency or hindering or obstructing the officer in the performance of his duties." N.C. Gen.Stat. § 14-225. Defendant's conduct undoubtedly had the effect of interfering with the work of the police, as investigating her complaint took time and manpower away from work on actual crimes. However, there was no testimony or other evidence that she acted with that malicious purpose. Indeed, the transcript of the tape-recorded conversation between Defendant and a Durham Police Department sergeant *200 that was introduced at trial strongly suggests that Defendant believed that she had been stalked by Mr. Hernandez.
Moreover, even had Defendant's purpose in filing the false report been to harass Mr. Hernandez and, by extension, the Duke Eye Center, her actions still would not have been illegal unless they were designed to obstruct justice. As noted by the State, the tape recording of Defendant's phone calls to the Durham Police sergeant "is evidence of Defendant's complaint" but again, evidence of the false report is not in and of itself a crime. Hughes, 353 N.C. at 204-05, 539 S.E.2d at 629. Defendant's repeated phone calls to the Duke University police were irrelevant to her interactions or filing a false report with the Durham police. Likewise, her contact with the ADA indicates only that she was interested in having her claim zealously pursued, even if the police investigated and found the claim to be baseless.
We recognize that the State in this case was attempting to take action against Defendant to protect Mr. Hernandez and others at the Duke Eye Center from further contact with or harassment by her. However, by failing to show that Defendant acted with an impermissible purpose in having the arrest warrant sworn out against Mr. Hernandez, the State did not meet its burden at trial to provide substantial evidence as to each element of the crime of filing a false report to law enforcement. To hold otherwise would have a chilling effect on citizens' willingness to turn to the police for help, even if such contact were ultimately based on mistake or confusion.
Accordingly, we reverse the denial of Defendant's motion to dismiss and vacate her conviction.
Reversed.
Judges BRYANT and JACKSON concur.
NOTES
[1] State v. Hughes, 353 N.C. 200, 204-05, 539 S.E.2d 625, 629 (2000) (quoting N.C. Gen.Stat. § 14-225). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340099/ | 660 S.E.2d 727 (2008)
SELFE
v.
The STATE.
No. A07A2162.
Court of Appeals of Georgia.
January 30, 2008.
Reconsideration Dismissed April 9, 2008.
Certiorari Denied June 2, 2008.
*728 Sexton, Key & Hendrix, Joseph S. Key, for appellant.
Scott L. Ballard, District Attorney, Randall K. Coggin, Assistant District Attorney, Thurbert E. Baker, Attorney General, for appellee.
ANDREWS, Presiding Judge.
Scott D. Selfe, convicted by a jury of one count of computer pornography and child exploitation and one count of obscene internet contact, appeals, contending that the evidence was legally insufficient, the State failed to prove venue, and, based on the rule of lenity, his convictions should have been reduced to electronically furnishing obscene materials to a minor.
1. When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from the evidence. Id. "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld." (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832, 546 S.E.2d 524 (2001).
So viewed, the evidence shows that Corporal Heather Lackey was employed by the Peachtree City Police Department in Fayette County, Georgia as a community resource officer focusing on internet crimes against *729 children. She had worked in this capacity for four and a half years before her encounter with Selfe in March 2006.[1]
Lackey pursued investigations by using the computer in her Fayette County office to pose as an underage teen in chat rooms on the internet and engaging in e-mail and instant message conversations. Lackey had established an internet profile as "April" on the website Adult FriendFinder, which listed her age as 20. She listed her age as 20 because, in order to access this website, it was necessary that a visitor list an age over 18 years old. While Lackey was on the internet on March 19, as part of an investigation of another individual, she gave out her "April" e-mail address in the Adult Friend-Finder chat room. The next day, she was contacted by Selfe, using the screen name "selfeinterest," by instant message.[2] Selfe was using his computer in his home in Dallas, in Paulding County. During this initial chat, although it was not recorded due to a computer problem, Lackey messaged Selfe that she was, in fact, 15 years old. The next conversations were recorded and transcripts introduced during trial. Also, Lackey used a hand held video camera to record what was appearing on her office computer as she was chatting with Selfe. Early in this second conversation, Lackey told Selfe she had never seen a man naked. In response, Selfe stated that he believed that she was not 18 yet, saying, "[y]our [sic] almost 18 and never seen a guy naked?" At that point, Lackey reminded Selfe of their earlier conversation in which she told him she was 15, although her profile said she was 20. Selfe said he thought she was a little older, but proceeded to chat with Lackey.
The next day, Selfe initiated another exchange. Lackey again referred to her age, lamenting that she did not get to meet people her own age because she was being home schooled. Selfe told Lackey he had to be careful because of the age of consent. Selfe requested a picture of Lackey and she sent him a picture of a teenaged girl. Lackey told Selfe her 15-year-old girlfriend had introduced her to the website and her friend had met some men. After advising Lackey to be careful online, Selfe asked her if she wanted to see a naughty picture. When she answered affirmatively, Selfe sent her a picture of a male penis. Selfe then discussed foreplay and arousal with her at length and webcamed himself masturbating.
At several points during the conversations, Selfe indicated that he would not meet with a 15-year-old girl and that he was even leary of messing around chatting and using the webcam. He also said he would not be the one to take her virginity and that he would "talk s--t about it all day long with you[,] but I won't lay a hand on ya."
Selfe testified and acknowledged his familiarity with sexually explicit websites, use of the webcam and internet communications. Asked if he believed the person with whom he was communicating was less than 16, Selfe said he was "[s]keptical at best." He also acknowledged that he was masturbating on the webcam for somebody he did not know.
The argument made by Selfe regarding legal insufficiency of the evidence is addressed only to Count 1, and that is all we address.[3] That count charged that Selfe violated OCGA § 16-12-100.2(d)(1) in that he
did intentionally and willfully utilize a computer on-line service, to wit: MSN Hotmail and MSN Instant Message, to solicit a person believed by said accused to be a fifteen year old child to engage in conduct which would constitute a violation of O.C.G.A. § 16-6-4 by enticing said person to witness the defendant's act of masturbation, and [sic] act which would constitute *730 an immoral and indecent act in the presence of a child. . . .
(Emphasis supplied.)
Selfe, citing Vines v. State, 269 Ga. 438, 499 S.E.2d 630 (1998), argues that, based on the language of the indictment and the invocation of the child molestation statute, it was necessary for the State to prove that Selfe and "April" were in the physical presence of each other in order to sustain this charge. We agree.
OCGA § 16-12-100.2(d)(1) provides that
[i]t shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; or Code Section 16-6-8, relating to the offense of public indecency or to engage in any conduct that by its nature is an unlawful sexual offense against a child.
(Emphasis supplied.)
While there are several methods provided in this statute for committing the crime, having chosen a specific one,[4] the State is required to prove that method. "Averments in an indictment as to the specific manner in which a crime was committed are not mere surplusage. Such averments must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant's right to due process of law." (Citations and punctuation omitted.) Talton v. State, 254 Ga. App. 111, 112(1), 561 S.E.2d 139 (2002).
The writ of certiorari was granted in Vines to determine "whether the crime of child molestation can be committed when the only contact between the accused and the alleged victim was by telephone." (Emphasis supplied.) Vines v. State, supra at 438, 499 S.E.2d 630 The Supreme Court found that "the victim and accused must be together in order for the crime of `child molestation' to be committed." (Emphasis supplied.) Id., supra at 439, 499 S.E.2d 630.[5] Because both telephone and computer communications are by electronic transmissions, we are unable to distinguish the two modes as it relates to the necessity of "presence" for the purpose of proving child molestation.
The only proof being that Selfe was in Paulding County and Lackey was in Fayette County, the State has failed to show that Selfe and Lackey were in the "presence" of each other, and this conviction must be reversed.
2. In his second enumeration of error, Selfe contends that the State failed to prove venue in Fayette County on both Counts 1 and 2. Because of our decision in Division 1, we consider this argument only with regard to Count 2.
That count alleged that Selfe, in Fayette County, "did intentionally and willfully utilize a computer on-line service, . . . to contact a person believed by said accused to be a 15 year old female child, and said contact contained explicit verbal descriptions of sexual conduct which were intended to arouse and satisfy the sexual desires of said accused. . . ."
Although there is no authority directly on point, we are persuaded by the Supreme Court's recent decision in Patel v. State, 282 Ga. 412, 651 S.E.2d 55 (2007), that use of computer online services in Fayette County by Selfe, even though he was in Paulding County, is sufficient to prove venue. As *731 stated in Patel v. State, supra at 412-413(1), 651 S.E.2d 55,
[t]he jury was authorized to find that appellant, while at his business in Cherokee County, used his computer to enter an adult chat room where he struck up a conversation with a participant who claimed to be a thirteen-year-old girl but who was actually 29-year-old Cpl. Heather Lackey of the Peachtree City Police Department. During their private chat using an Internet instant messaging service, Lackey repeatedly told appellant that she was thirteen years old; appellant acknowledged this information. Appellant nevertheless utilized computer on-line services in Fayette County to solicit from Lackey acts of fellatio and cunnilingus. During the course of their on-line contact he also transmitted messages containing sexually explicit photographs to Lackey in Fayette County. The evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of violating subsections (d)(1) and (e)(1) of OCGA § 16-12-100.2 as charged. Jackson v. Virginia, [supra].
(Emphasis supplied.)
Therefore, there was sufficient proof of venue in Fayette County and this enumeration is without merit.
3. Finally, Selfe argues that, pursuant to the rule of lenity, his conviction under Count 2[6] should only be for the misdemeanor offense of furnishing obscene material to a minor, OCGA § 16-12-100.1(b)(1)(B).
That section provides that a person violates it by
[k]nowing or having good reason to know the character of the material furnished, the person electronically furnishes to an individual whom the person knows or should have known is a minor: . . . [a]ny written or aural matter that contains material [which, taken as a whole, predominantly appeals to the prurient, shameful, or morbid interest of minors] or contains explicit verbal descriptions or narrative accounts of sexual conduct, sexual excitement, or sadomasochistic abuse.
Count 2 charged Selfe with using MSN Hotmail and MSN Instant Messenger to contact a person believed to be a 15-year-old female and that the contact contained explicit verbal descriptions of sexual conduct which were intended to arouse and satisfy the sexual desires of Selfe.
The rule of lenity entitles the accused to the lesser of two penalties where the same conduct would support either a felony or misdemeanor conviction. Dixon v. State, 278 Ga. 4, 7(1)(d), 596 S.E.2d 147 (2004). Even though the rule of lenity may apply when the applicable misdemeanor is not a lesser included offense to the charged felony, see Brown v. State, 276 Ga. 606, 607(1), 581 S.E.2d 35 (2003), the essential requirement of the rule of lenity is that both crimes could be proved with the same evidence. Id. at 609(2) [581 S.E.2d 35].
(Emphasis in original.) Quaweay v. State, 274 Ga.App. 657, 658, 618 S.E.2d 707 (2005).
Here, as argued by the State, Count 2 required not only proof that Selfe furnished the matter to someone he believed was 15 years old, but that he did it with the intent to arouse and satisfy his own sexual desires, an element not included in the misdemeanor offense. See Drinkard v. Walker, 281 Ga. 211, 215 636 S.E.2d 530 (2006).
Therefore, the rule of lenity is not applicable to this case and Selfe's conviction of Count 2 is affirmed.
Judgment affirmed in part and reversed in part.
ELLINGTON and ADAMS, JJ., concur.
NOTES
[1] Lackey received training at a seminar held at the National Center for Missing and Exploited Children, as well as through the Georgia Bureau of Investigation and the Federal Bureau of Investigation.
[2] Lackey was able to ascertain Selfe's identity by tracing his internet service provider information and contacting that ISP.
[3] Count 2 charged a violation of OCGA § 16-12-100.2(e)(1) in that Selfe utilized MSN Hotmail and MSN Instant Messenger to contact a person believed to be a 15-year-old female and that this contact contained explicit verbal descriptions of sexual conduct which were intended to arouse and satisfy the sexual desires of Selfe.
[4] The State may, of course, indict more than one method of committing the crime and prove any one of the methods alleged. Carrell v. State, 261 Ga.App. 485, 486, 583 S.E.2d 167 (2003).
[5] We note that the policy arguments put forth by the State were also made and considered in State v. Vines, 226 Ga.App. 779, 780-782, 487 S.E.2d 521 (1997). While persuasive to this Court, they were not to the Supreme Court.
[6] The argument made addresses both Counts 1 and 2. Considering our decision in Division 1, supra, however, we address only Count 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340100/ | 660 S.E.2d 574 (2008)
STATE of North Carolina
v.
Arthur Eugene YOUNG, III, Defendant.
No. COA07-671.
Court of Appeals of North Carolina.
May 6, 2008.
Attorney General Roy Cooper, by Assistant Attorney General Spurgeon Fields, III, for the State.
Jon W. Myers, Lexington, for defendant.
ELMORE, Judge.
Prior to a probation revocation hearing on 28 February 2007, Arthur Eugene Young, III (defendant), pled guilty to two separate crimes in separate proceedings. Defendant received a suspended sentence and supervised probation in each instance.
During the probationary period, defendant received a visit by a police officer at the home he shared with his girlfriend and another person. Defendant's name was not on the lease. The facts tended to show that the officer requested permission from defendant to enter the home to conduct a narcotics investigation. Defendant granted permission.
While inside, the officer asked if there were any drugs in the house. In response, defendant went to the refrigerator freezer and retrieved what appeared to be two bags of marijuana. The officer then asked if there were any more drugs in the house. Defendant led him to a bedroom where what appeared to be cocaine was in plain view. The detective also found what appeared to be cocaine in defendant's rear pants pocket. The officer then asked if there were any weapons in the house. Defendant led the officer through the house and produced four weapons.
Defendant was charged with violating the conditions of his probation by having controlled substances in his possession, by violating the rules of the structured day program by having controlled substances in his *576 possession, and by having deadly weapons in his possession.
Prior to the probation revocation hearing, defendant's motion for discovery directed to alleged controlled substances was denied. At the probationary hearing, defendant renewed his motion for discovery, which was again denied. Defendant presented no evidence at the hearing and made no motions or objections regarding the handguns. The court found defendant in violation of each of the three conditions of probation. Defendant now appeals the revocation of probation and activation of the suspended sentences.
A hearing to revoke a defendant's probationary sentence only requires "that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended." State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). The judge's finding of such a violation, if supported by competent evidence, will not be overturned absent a showing of manifest abuse of discretion. State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960) (citations omitted).
Defendant first argues that there was insufficient evidence to revoke his probation on the basis of firearm possession, contending that there is insufficient evidence that he exercised ownership or exclusive possession of the firearms.
"Possession of a firearm may . . . be actual or constructive." State v. Boyd, 154 N.C.App. 302, 307, 572 S.E.2d 192, 196 (2002) (citation omitted). Constructive possession of an item exists when a person does not have the item in "physical custody, but . . . nonetheless has the power and intent to control its disposition." State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998) (citation omitted). The State does not dispute defendant's contention that no firearms were found in his actual possession. However, the question remains whether the firearms located in the home were in his constructive possession. Defendant argues that there was insufficient evidence to show constructive possession of the firearms. In particular, defendant highlights the State's failure to offer physical evidence, such as fingerprints, permits, or other proof of ownership linking him to the weapon. Although these might be the ideal forms of evidence to support a finding of constructive possession, other facts support such a finding.
At the hearing, the officer explained how the weapons were found:
Q. Was the defendant asked if there was [sic] any weapons in the residence?
A. Yes; he was.
Q. What was the defendant's response, if any?
A. He advised he did have weapons at which time he directed us through the residence to locate same.
Q. How many weapons did you find?
A. There were a total of four weapons found.
Q. Can you describe where these weapons were found and what exactly these weapons were?
A. Yes; one weapon was a Tech 9 which was located under the pillow in the master bedroom. The other was a shotgun, Mossberg 12 gauge shotgun, which was located under the mattress of the bed. The other was a 38 cal. handgun. It was found in the sofa, stuck down in the sofa. And the other weapon was a revolver that was also found under the mattress in his bedroom.
(Emphasis added). The testimony showed that defendant claimed ownership of firearms and that at least one of the firearms was purportedly located in his bedroom. Though the formal rules of evidence do not apply in a probation revocation hearing, N.C. Gen.Stat. § 15A-1345(e) (2007), defendant raised no objection to these statements suggesting ownership and offered no evidence to the contrary. Further testimony showed that defendant told the officer exactly where each of the weapons was located. On cross-examination, the officer stated, "All I can say is when asked about those items he took us directly to them and told us exactly where they were."
*577 That defendant knew the precise location of the several firearms, needed no assistance in locating them, and appeared to make statements demonstrating ownership, is strong evidence that defendant had the power and intent to control them. Furthermore, defendant never made statements either during the search or at trial denying ownership.
Defendant nevertheless contends that there is no proof of possession of the firearms because there is no evidence demonstrating that he had exclusive possession or control over the residence.
Though ownership or lease of a premises in which contraband is found can give rise to the inference of constructive possession, "the State is not required to establish that a defendant owned or leased the premises on which contraband is found in order to prove control of such premises by defendant." State v. Tate, 105 N.C.App. 175, 179, 412 S.E.2d 368, 371 (1992) (citing State v. Leonard, 87 N.C.App. 448, 456, 361 S.E.2d 397, 402 (1987)). "[W]here there is no evidence of ownership or of exclusive possession of the premises on which controlled substances are found, constructive possession may be inferred if the defendant has nonexclusive possession of the premises and there are accompanying incriminating circumstances." Id. at 180, 412 S.E.2d at 371 (citing State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987)).
Though the State was not able to show that defendant had exclusive possession of the premises, the evidence showing ownership of the firearms, described above, establishes sufficient incriminating circumstances to support constructive possession. Though evidence showed that another person was at the residence at the time of the search, defendant needed no assistance in locating and procuring the firearms; he went directly to the places in the leased premises and retrieved the items himself. During the search, defendant never stated that the weapons were not his, nor did he make such a claim at the revocation hearing.
The judge's decision to revoke the probationary sentence was supported by competent evidence showing constructive possession of firearms in violation of a condition of probation. As defendant failed to offer any evidence showing that the violation was not willful or with lawful excuse, we find no error.
Defendant also argues that denial of his motion for discovery relating to drug possession was reversible error. However, we need not address this issue, because the "breach of any single valid condition upon which the sentence was suspended will support an order activating the sentence." State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973). Because evidence presented as to the firearms possession was sufficient to show a violation of a probation condition, the violation of that condition of probation alone was sufficient for the court to revoke his probationary sentence.
Having conducted a thorough review of the briefs and records, we find no error.
No error.
Judges WYNN and BRYANT concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340101/ | 660 S.E.2d 525 (2008)
JACKSON
v.
The STATE.
No. S08A0365.
Supreme Court of Georgia.
April 21, 2008.
Alexander Jackson, Jesup, pro se.
Spencer Lawton, Jr., Dist. Atty., George R. Asinc, Asst. Dist. Atty., for appellee.
SEARS, Chief Justice.
The appellant, Alexander Jackson, appeals from the habeas court's order ruling against his claim that he received ineffective assistance of counsel when he pled guilty to two drug possession offenses. We conclude that the habeas court's judgment must be affirmed.
The habeas hearing transcript and Jackson's affidavit show that he testified that, when he pled guilty, he was not informed of the nature and elements of the drug possession crimes, and that, in fact, his lawyer told him that he could be found guilty merely by being in the same house as the drugs. Jackson also testified that, if he had known that the possession element of the crimes required knowing possession, he would not have pled guilty, but would instead have gone to trial because he did not have knowledge of the drugs that were found. Jackson's trial counsel did not testify at the hearing, as he was not subpoenaed to testify by either Jackson or the State.
To the extent the habeas court ruled against Jackson's claim of ineffective *526 assistance of counsel on the ground that Jackson expressed satisfaction with his attorney's services at the plea hearing, the habeas court erred.[1] Our review of the record, however, demonstrates that the habeas court also ruled against Jackson's claim on the ground that the habeas court did not find that Jackson's testimony regarding his attorney's performance was credible[2] and thus concluded that Jackson failed to overcome the strong presumption that trial counsel's performance was not deficient.[3]
Because we cannot conclude that the habeas court erred by ruling that Jackson failed to carry his burden to prove the ineffectiveness of his trial counsel, we affirm the habeas court's judgment.[4]
Judgment affirmed.
All the Justices concur.
NOTES
[1] Harden v. Johnson, 280 Ga. 464, 464-465, 629 S.E.2d 259 (2006).
[2] Crawford v. Linahan, 243 Ga. 161, 164, 253 S.E.2d 171 (1979) (a habeas judge sits as the trier of facts and may reject the testimony of a witness in whole or in part).
[3] Morgan v. State, 275 Ga. 222, 227-228, 564 S.E.2d 192 (2002) (habeas petitioner has the burden to overcome the strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance). See also Davis v. State, 280 Ga. 442, 443, 629 S.E.2d 238 (2006) (if trial counsel does not testify regarding the ineffectiveness claim, it is extremely difficult to overcome the strong presumption that trial counsel's provided reasonable professional assistance).
[4] See Zant v. Means, 271 Ga. 711, 712, 522 S.E.2d 449 (1999) (on ineffectiveness claims, we defer to a habeas court's findings of fact and credibility determinations, but not to its legal conclusions). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340102/ | 660 S.E.2d 623 (2008)
STATE of North Carolina
v.
Robert J. SATANEK.
No. COA07-890.
Court of Appeals of North Carolina.
May 20, 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Floyd M. Lewis, for the State.
Richard Croutharmel, Raleigh, for defendant-appellant.
HUNTER, Judge.
Robert J. Satanek ("defendant") appeals from a revocation of his probation and activation of his suspended sentence. After careful review, we vacate the trial court's judgment.
I.
Defendant pled guilty to indecent liberties with a child and indecent exposure in the Superior Court of Onslow County, North Carolina, on 1 February 2001. Judge Charles H. Henry sentenced defendant to sixteen to twenty months' active confinement. Judge Henry then suspended that active sentence and placed defendant on thirty-six months' supervised probation, ending on 1 February 2004. On 1 March 2001, Judge Carl L. Tilghman found defendant in willful violation of his probation. Judge Tilghman modified defendant's monetary conditions of probation and transferred defendant's probation to Indiana without extending the probation period. A violation report was issued on 2 July 2002, and defendant was returned to North Carolina after signing a waiver of extradition.
On 24 September 2002, Judge Charles H. Henry found defendant in willful violation of his probation pursuant to the violation report dated 2 July 2002. Judge Henry modified the original judgment by ordering defendant to serve ninety days' active confinement, report to his probation officers upon release, pay attorney's fees, and reapply for transfer of his probation to Indiana.
On 26 February 2004, Judge Donald W. Stephens signed an "Order on Violation of Probation or on Motion to Modify," which modified the monetary conditions of defendant's probation and extended defendant's term of probation twenty-four months, from 7 February 2004 until 7 February 2006 ("first extension").
On 9 January 2006, defendant signed a statement agreeing to an extension of his probation another twenty-four months in order to continue his sex offender treatment ("second extension"). On 16 January 2006, Judge Stephens signed an "Order on Violation of Probation or on Motion to Modify," which extended defendant's term of probation an additional twenty-four months, from 7 February 2006 until 6 February 2008. On 28 March 2007, defendant's probation officer filed a violation report charging that defendant had willfully violated the sex offender special conditions of his probation. At a probation violation hearing on 30 April 2007, Judge Russell Duke found that defendant willfully and without valid excuse violated each of the conditions of his probation as set forth in the violation report dated 28 March 2007. Judge Duke entered a judgment which revoked defendant's probation and activated his suspended sentence. Defendant appeals from this judgment.
*625 II.
Before considering defendant's appeal, we must briefly address the State's argument that defendant may not bring an appeal at this time. The State argues that the proper recourse for defendant was either to appeal as a matter of right within fourteen days of the entry of judgment or to petition this Court for review by writ of certiorari if the right to prosecute the appeal has been lost by failure to take timely action. See N.C. Gen.Stat. § 15A-1444 (2007); N.C.R.App. P. 4(a)(2); N.C.R.App. P. 21(a)(1). The State further argues that defendant has twice failed to comply with the North Carolina Rules of Appellate Procedure by not appealing his probation extension orders and thus has waived his right to appeal both extension orders. In addition, the State believes that defendant's attempt to appeal constitutes an impermissible collateral attack.
The State relies heavily on three cases to reach the conclusion that defendant is precluded from challenging the validity of the probation extension orders while appealing the revocation of his probation: State v. Holmes, 361 N.C. 410, 646 S.E.2d 353 (2007); State v. Rush, 158 N.C.App. 738, 582 S.E.2d 37 (2003); and State v. Noles, 12 N.C.App. 676, 184 S.E.2d 409 (1971). In each case, the appellate court held that, because the defendant's sentence was activated, the defendant had a right to appeal. However, the State fails to recognize that in the present case defendant was precluded from appealing his probation because it was neither activated nor modified to "special probation." Unlike the defendants in the three cases cited by the State, all of whom waived their right to appeal, defendant in this case did not waive his right to appeal because he had no right to appeal the extension orders. See State v. Edgerson, 164 N.C.App. 712, 714, 596 S.E.2d 351, 352-53 (2004) (citing N.C. Gen.Stat. §§ 15A-1347 (2003) and 15A-1344(e) (2003)).
III.
Defendant's sole argument on appeal is that the trial court lacked subject matter jurisdiction to revoke his probation. A trial court asserts the "conclusion of law" that it has subject matter jurisdiction when it enters a judgment against a defendant in a criminal case. An appellate court reviews conclusions of law de novo. State v. Taylor, 155 N.C.App. 251, 260, 574 S.E.2d 58, 65 (2002). Further, an appellate court necessarily conducts a statutory analysis when analyzing whether a trial court has subject matter jurisdiction in a probation revocation hearing, and thus conducts a de novo review. See State v. Bryant, 361 N.C. 100, 637 S.E.2d 532 (2006).
A trial court must have subject matter jurisdiction over a case in order to act in that case. State v. Reinhardt, 183 N.C.App. 291, ___, 644 S.E.2d 26, 27 (2007) (citing In re N.R.M., 165 N.C.App. 294, 297, 598 S.E.2d 147, 149 (2004)). In addition, a defendant may properly raise this issue at any time, even for the first time on appeal. Id. (citing State v. Bossee, 145 N.C. 579, 59 S.E. 879 (1907)).
The judgment that originally placed defendant on probation was entered on 1 February 2001, and the original probationary period expired on 1 February 2004. According to N.C. Gen.Stat. § 15A-1344(d), a trial court can only extend probation "prior to the expiration or termination of the probation period[.]" There is no provision in the statute that allows for the extension of probation after the original term has expired. However, under N.C. Gen.Stat. § 15A-1344(f) (2007):
The court may revoke probation after the expiration of the period of probation if:
(1) Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and
(2) The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier.
The State neither filed the required written motion nor did it make a reasonable effort to notify the probationer. Therefore, because defendant's period of probation had expired, the trial court lacked jurisdiction on 26 February 2004 to extend the probationary period in the first extension, and thus, the trial court lacked jurisdiction to revoke defendant's probation in the second extension.
*626 Finally, "`[w]hen the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority.'" State v. Crawford, 167 N.C.App. 777, 779, 606 S.E.2d 375, 377 (2005) (citation omitted).
IV.
Since, the trial court lacked subject matter jurisdiction the judgment revoking defendant's probation must be vacated.
Vacated.
Judges BRYANT and JACKSON concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340103/ | 660 S.E.2d 409 (2008)
LIFESTYLE HOME RENTALS, LLC
v.
RAHMAN.
No. A07A2166.
Court of Appeals of Georgia.
March 26, 2008.
*410 Webb, Tanner, Powell, Mertz & Wilson, Robert J. Wilson, Lawrenceville, Jody C. Campbell, for appellant.
Alan C. Gilmer, for appellee.
MILLER, Judge.
Lifestyle Home Rentals, LLC ("LHR") initiated this action against Nassareen Rahman seeking a writ of dispossession and a monetary judgment for rent owed under an alleged lease-purchase agreement between the parties. Rahman counterclaimed for breach of contract, asserting that the parties had entered into a purchase and sale agreement and that LHR had failed to perform under the same. She also sought a return of the $40,000 down payment that she made under the terms of that agreement. Following a bench trial, the trial court granted LHR a writ of possession but awarded Rahman a refund of her down payment, less an amount owed for rent. LHR appeals, alleging that the trial court erred (i) in concluding that the parties' contract was a purchase and sale agreement, rather than a lease-purchase agreement; and (ii) in refusing to award it the amount of the down payment as liquidated damages. Discerning no error, we affirm.
While we apply a de novo standard of review to any questions of law decided by the trial court (see Coker v. Coker, 265 Ga.App. 720, 721, 595 S.E.2d 556 (2004)), "factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. OCGA § 9-11-52(a)." Sam's Wholesale Club v. Riley, 241 Ga.App. 693, 527 S.E.2d 293 (1999). "Because the clearly erroneous test is in effect the same standard as the any evidence rule, appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them. . . ." (Citations omitted.) Tampa Bay Financial v. Nordeen, 272 Ga.App. 529, 531(1), 612 S.E.2d 856 (2005).
So viewed, the evidence shows that in approximately January 2006, Rahman and Evonne Eckenroth, the owner of LHR, began discussing the possibility of Rahman purchasing a home from LHR. On March 3, 2006, the parties executed a document captioned "Contract For Sale and Purchase" (the "Contract") under which LHR agreed to sell and Rahman agreed to purchase certain real property in Lawrenceville (the "Property") for $259,900. Under the terms of the Contract, Rahman was to pay $40,000 at closing with the balance of the purchase price to be financed by LHR at an annual interest rate of 9.5%. Attached to the Contract was an "amortization schedule," initialed by each of the parties, which reflected that Rahman would make monthly mortgage payments on the owner-financed balance in the amount of $1,849.04, with payments being due on the 14th of each month.
The Contract further provided that the closing was to take place on March 3, 2006, at which time LHR would provide Rahman with a warranty deed conveying the Property to her, subject to the purchase-money mortgage. With respect to default, the Contract stated
a. Default by Purchaser. If Purchaser fails to perform this [Contract], the deposit this day paid by Purchaser shall be retained by . . . Seller as consideration for the execution of this [Contract]. In such event the parties agree that said sum shall *411 constitute liquidated damages since both Purchaser and Seller agree that actual damages for default or breach of contract could not readily be ascertained as the Date of execution of this [Contract].
b. Default by Seller. If Seller fails to perform this [Contract], the aforesaid deposit shall be returned to Purchaser and this shall be the sole remedy of Purchaser under this [Contract].
The parties executed the Contract on the same date specified therein as the closing date for the transaction. At that time, Rahman tendered the $40,000 down payment required at the time of closing and Eckenroth provided her with a key to the residence located on the Property, but did not provide her with a warranty deed. Rahman made the monthly mortgage payments called for under the Contract from March until August 2006. In September 2006, counsel for Rahman sent a demand letter to Eckenroth, claiming that LHR had breached the Contract by, among other things, failing to provide Rahman with the warranty deed for the Property. The letter demanded the return of Rahman's down payment, as well as all mortgage payments made under the Contract.
LHR then instituted the current action against Rahman in magistrate court, seeking a judgment for unpaid rent and a writ of possession for the property. After Rahman counterclaimed for the return of her down payment, the case was removed to state court, and LHR amended its complaint to assert a claim for breach of contract and sought liquidated damages in the amount of $40,000.
Following a bench trial, the trial court found that the liquidated damages clause in the Contract was unenforceable as a matter of law. The trial court further found that, regardless of the enforceability of the liquidated damages provision, LHR's "substantial breach" of the Contract barred it from recovering liquidated damages, and that Rahman was entitled to a refund of her down payment. The trial court also held that, because LHR was unable to provide Rahman with the warranty deed for the Property, LHR was entitled to the writ of possession and a reasonable rent for the months of September 2006 through May 2007. The trial court determined that the amount Rahman had been paying as a monthly mortgage payment represented a reasonable monthly rent, and therefore awarded LHR $16,641.36 in unpaid rent, to be set off against the $40,000 LHR owed Rahman. LHR now appeals from the money judgment entered against it and in favor of Rahman in the amount of $23,358.64.
1. LHR first argues that the trial court erred in construing the Contract as a purchase and sale agreement, instead of a lease-purchase agreement. We disagree.
LHR's argument that the Contract must be construed as a lease-purchase agreement is based solely on the testimony of Eckenroth, who stated that the parties intended for Rahman to lease a home from LHR for a year to help Rahman reestablish her credit. Citing this testimony, LHR argues that the intent of the parties must control any interpretation of the Contract.
LHR's position, however, ignores entirely the testimony of Rahman, who stated that the parties intended the Contract to provide for the purchase and sale of real property. Rahman's testimony, standing alone, is sufficient to support the trial court's conclusion that the parties intended their agreement to be one for the purchase and sale of the Property. See Tampa Bay Financial, supra, 272 Ga.App. at 531(1), 612 S.E.2d 856 ("[C]onflicting evidence in the record satisfies the `any evidence' test.") (citation omitted).
More importantly, LHR's position fails to acknowledge the principle that when construing a contract a court will look to parol evidence to determine the parties' intent only where the written document is ambiguous. See UniFund Financial Corp. v. Donaghue, 288 Ga.App. 81, 82-83, 653 S.E.2d 513 (2007) ("Parol evidence is not admissible to contradict or construe an unambiguous contract.") (citation and punctuation omitted). The question of whether a contract is ambiguous represents a question of law for the court. See, e.g., Sharple v. AirTouch Cellular of Ga, 250 Ga.App. 216, 218, 551 S.E.2d 87 (2001).
*412 Here, the Contract reveals no ambiguity as to whether the parties intended for it to serve as a purchase and sale agreement or a lease-purchase agreement. Rather, the entire document supports the conclusion that the Contract was intended to be for the purchase and sale of the Property. Not only is the document captioned "Contract For Sale and Purchase," it also refers to the parties as "Buyer" and "Seller," sets forth a purchase price, and delineates the terms of mortgage payments. The agreement also contains provisions that would be unique to a contract for the sale of realty, such as the seller's obligation to provide the buyer with a title commitment and a warranty deed at the "closing" of the sale. Nowhere does the document refer to a lease or provide for the payment of rent, nor does it employ language indicative of a lease i.e., terms such as "lessor and lessee" or "landlord and tenant." Given the clear and unambiguous nature of the language contained therein, the trial court correctly concluded that the Contract was a purchase and sale agreement.
2. LHR also claims that, under the terms of the Contract, Rahman's failure to pay rent on the property while residing there entitles LHR to retain her $40,000 down payment as liquidated damages. Again, we disagree.
The Contract clearly states that if LHR failed to perform certain obligations thereunder, Rahman would be entitled to the return of her down payment. LHR's obligations included presenting Rahman with a warranty deed subject to the purchase money mortgage. Eckenroth testified that as of the date of trial, LHR had not provided Rahman with such a deed.[1] The trial court correctly concluded that LHR's admitted failure to perform its obligations under the Contract bars it, as a matter of law, from seeking to enforce the liquidated damages provision. See Clark's Super Gas v. Tri-State Systems, 129 Ga.App. 650, 651, 200 S.E.2d 472 (1973) (it is incumbent upon one seeking to enforce a contract "to establish that it ha[s] complied with the conditions of the contract"). Moreover, under the express terms of the Contract, LHR's failure to perform entitled Rahman to a return of her down payment.
In light of the foregoing, we affirm the trial court's order entering a monetary judgment in favor of Rahman in the amount of $23,358.64.
Judgment affirmed.
BARNES, C.J., and SMITH, P.J., concur.
NOTES
[1] Indeed, Eckenroth's testimony establishes that LHR was incapable of providing Rahman with a warranty deed at the time it accepted her down payment. Eckenroth explained that she contracted to purchase the Property less than a month before contracting to sell the same to Rahman. That purchase, in turn, was financed by the previous owner of the Property, with Eckenroth having the option of obtaining financing from another lender and then closing the transaction. Eckenroth, however, would not receive a deed to the Property until she had paid the purchase price in full. Eckenroth did not close on that sale, and therefore did not receive a deed to the Property, until shortly before trial in April 2007. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340081/ | 660 S.E.2d 440 (2008)
BRUSCATO et al.
v.
GWINNETT-ROCKDALE-NEWTON COMMUNITY SERVICE BOARD et al.
No. A07A1964.
Court of Appeals of Georgia.
March 27, 2008.
*441 Michael B. Butler, William G. Quinn III, Decatur, for Appellant.
Owen, Gleaton, Egan, Jones & Sweeney, Milton B. Satcher III, Marietta, Melissa R. Phillips Reading, Atlanta, for Appellee.
BERNES, Judge.
Victor Bruscato attacked and killed his mother. In this wrongful death action, appellant Vito J. Bruscato, Victor's father, seeks damages for the wrongful death of Mrs. Bruscato from appellee, Derek Johnson O'Brien, M.D., the psychiatrist who was treating Victor at the time of the attack. Bruscato alleges that Dr. O'Brien breached duties to protect Mrs. Bruscato from harm and to warn her of Victor's potential dangerousness after he altered Victor's medication regimen.[1] Bruscato further claims that as a result of Dr. O'Brien's breach of his duties, Mrs. Bruscato was stabbed to death by Victor, who was then psychotic. Bruscato appeals the trial court's grant of summary judgment in favor of Dr. O'Brien. For the reasons that follow, we affirm.
The standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Further, this court conducts a de novo review of the law and the evidence.
(Citations omitted.) Shortnacy v. North Atlanta Internal Medicine, 252 Ga.App. 321, 321-322, 556 S.E.2d 209 (2001).
*442 So viewed, the evidence shows that Victor Bruscato was a 40-year-old mental patient who had been diagnosed with severe mental illness, including mild mental retardation, schizophrenia, schizo-affective disorder, intermittent explosive disorder, pedophilia, and psychosis not otherwise specified. Throughout his life, Victor received psychiatric treatment, including inpatient care at several hospitals and at a group home operated by GRN. Victor had a history of aggressive and violent behavior and had been placed on a variety of medications in efforts to control his behavior.
In 1999, GRN removed Victor from the GRN group home and informed the Bruscatos that it would find a place for Victor at an inpatient facility. The Bruscatos, however, wanted Victor to live with them, and, at the request of Victor's mother, GRN agreed to provide outpatient treatment to Victor while he resided with them. The outpatient treatment was conditioned upon the Bruscatos' promise to provide Victor with 24-hour supervision. Victor's mother, Mrs. Bruscato, thereafter became Victor's primary caretaker as GRN continued to provide outpatient services, including psychiatric therapy sessions at its facility and in-home visits by a nurse and community support personnel.
In January 2001, Dr. O'Brien became Victor's treating psychiatrist. Dr. O'Brien prescribed a medication regimen for Victor which included anti-psychotic and mood stabilizing drugs. In the spring of 2002, Mrs. Bruscato contacted the GRN facility expressing concerns that Victor's medications were causing negative side effects, including an elevation of his blood pressure. As a result of her concerns, Mrs. Bruscato requested that Victor be removed from his medications.[2] Dr. O'Brien subsequently altered Victor's medication regimen so that eventually Victor was prescribed only one medication. Although Mrs. Bruscato also requested that Victor be removed from this medication, Dr. O'Brien refused.
For several months following the removal of the medications, Victor and his mother both reported to Dr. O'Brien that Victor was doing well. Mrs. Bruscato told Dr. O'Brien that Victor's impulsivity and sexual urges had decreased and that he was not exhibiting any increased agitation. On July, 22, 2002, the last time Dr. O'Brien saw Victor before the attack, Dr. O'Brien observed that Victor exhibited a "somewhat expansive affect" and "rapid thought and speech."[3] During the session, Victor told Dr. O'Brien that he had feelings of anger toward women, but denied that these feelings were "a problem." Dr. O'Brien noted that his denials were "superficial." Mrs. Bruscato nevertheless reported that Victor was "doing well and that he [had] not exhibited impulsive or inappropriate behavior."
Contrary to the reports given to Dr. O'Brien, the Bruscatos were experiencing great difficulty in handling Victor. Victor had become more agitated, argumentative, and "difficult [for his mother] to deal with" at home. Victor told his mother that he was having bad dreams and hearing voices. On one occasion approximately six weeks before the attack, Victor screamed that "[t]he demons won't shut up. They're telling me to kill. They're telling me to murder."
On August 14, 2002, Mrs. Bruscato and a friend witnessed an episode during which Victor stated voices in his head were telling him to do "bad things." Later that same day, a nurse visited the Bruscato home, but Mrs. Bruscato did not report to the nurse that Victor claimed to be hearing voices. Mrs. Bruscato told the nurse that Victor was doing so well that she intended to ask Dr. O'Brien to continue withholding the medications at the next therapy session. Victor, however, told the nurse he was having violent dreams and fantasies.
The next day, Victor attacked and killed his mother by hitting her over the head with a battery charger and stabbing her multiple times. This lawsuit followed.
*443 1. Bruscato contends that the trial court erred in concluding that Dr. O'Brien had no duty to protect Mrs. Bruscato from harm. We disagree.
"[A] doctor, like any actor, generally has no duty to exercise control over third persons to prevent them from harming others. A narrow exception exists to this rule in situations where a physician has control over a patient who is known to be violent and causes harm to others." (Citations omitted.) Gilhuly v. Dockery, 273 Ga.App. 418, 419, 615 S.E.2d 237 (2005). See Restatement, Torts 2d, § 315(a). The only other exception to the general rule requires a special relationship between the doctor and the injured party which would confer a right to protection to the injured party. Gilhuly, 273 Ga.App. at 419, 615 S.E.2d 237. See Restatement, Torts 2d, § 315(b).
In Bradley Center v. Wessner, 161 Ga.App. 576, 580-581(1), 287 S.E.2d 716 (1982), aff'd, 250 Ga. 199, 200, 296 S.E.2d 693 (1982), this Court set forth a two-part test for determining whether the first narrow exception applies: (1) the physician must have control over the mental patient; and (2) the physician must have known or reasonably should have known that the patient was likely to cause bodily harm to others. Id.; Restatement, Torts 2d, § 315(a). See Keppler v. Brunson, 205 Ga.App. 32, 421 S.E.2d 306 (1992); Ermutlu v. McCorkle, 203 Ga.App. 335, 336(1), 416 S.E.2d 792 (1992).[4]
Bruscato contends that this case is not governed by the test set forth in Bradley Center because a "special relation" existed between Dr. O'Brien and Mrs. Bruscato which gave Mrs. Bruscato a right to protection in accordance with Restatement, Torts 2d, § 315(b).[5] See Gilhuly, 273 Ga.App. at 419, 615 S.E.2d 237. Bruscato acknowledges that Mrs. Bruscato was not a patient of Dr. O'Brien in the traditional sense. Relying upon Swofford v. Cooper, 184 Ga.App. 50, 53(2), 360 S.E.2d 624 (1987), he nonetheless contends that Mrs. Bruscato was conferred "patient-like" status and had privity with Dr. O'Brien since she "necessarily [and] customarily participated in the consultation and treatment of [Victor]." Bruscato's reliance upon the quoted language from the Swofford decision is misplaced.
In Swofford, this Court was called upon to review the issue of whether the caretakers for a patient became the doctor's patients by virtue of their receiving advice as to the best way to assist with the patient's care. Swofford, 184 Ga.App. at 53(2), 360 S.E.2d 624. The Court concluded that receiving such advice did not make the caretakers "patients." Id. The Court noted that the parents were not "necessar[y] [and] customar[y] participants" in the treatment and cited to Sims v. State, 251 Ga. 877, 881(5), 311 S.E.2d 161 (1984). In Sims, the Supreme Court of Georgia held that when joint therapy sessions are conducted, such as in family or marital counseling, the third-party family member or spouse is deemed a "necessary and customary participant" and as such are patients to whom the psychiatrist/patient privilege applies. Id. But here, as in Swofford, no joint therapy sessions were involved.
It is undisputed that Dr. O'Brien provided psychiatric services to Victor only and that Mrs. Bruscato did not receive any medical evaluation, care, or treatment from Dr. O'Brien. As conceded by Bruscato, Mrs. Bruscato was not Dr. O'Brien's patient.[6]*444 Swofford, 184 Ga.App. at 53(2), 360 S.E.2d 624. Her presence as a caretaker during Victor's therapy sessions did not confer upon her a "patient like" status.
Nor do we agree that Mrs. Bruscato had a special relationship with Dr. O'Brien based upon privity giving rise to a duty to aid or protect. Citing to Purcell v. Breese, 250 Ga.App. 472, 476(3), 552 S.E.2d 865 (2001) and Ga. Osteopathic Hosp. v. O'Neal, 198 Ga.App. 770, 773-774(3), 403 S.E.2d 235 (1991), Bruscato argues that separate and apart from the Bradley Center framework, a duty exists if there is privity between the decedent and the physician or hospital. Bruscato claims that based on Purcell and O'Neal, the voluntary agreement between Dr. O'Brien and Mrs. Bruscato for the provision of 24-hour supervision of Victor placed them in privity of contract and gave rise to a special relationship creating the duty to protect. The cases relied upon by Bruscato do not support his position that privity can be extended to a third party who was never the patient of the physician or hospital. Both Purcell and O'Neal were cases where the claims at issue were those brought on behalf of the decedent patient against the physician and hospital that had been charged with evaluating and/or treating the patient's mental illness. Hence, neither case extends the malpractice liability of a physician or hospital to a third-party nonpatient.
Bruscato has otherwise failed to point to any other special relationship between Dr. O'Brien and Mrs. Bruscato that would give rise to a duty to aid or protect.[7] "[Bruscato's] attempt to bootstrap [the] medical malpractice claims into further causes of action against [Dr. O'Brien] relating to [Mrs. Bruscato] is . . . contrary to Georgia law and public policy. [Dr. O'Brien] had no duty to [Mrs. Bruscato] here, as [she was] not his patient[ ]." Gilhuly, 273 Ga.App. at 420, 615 S.E.2d 237.
We decline to "take a step" as suggested by Bruscato and extend the duties imposed by law based upon the circumstances of this case. Victor lived at home under the supervision of his parents for over three years prior to the attack. Extending a physician's duty of care to third parties beyond the provisions of the Bradley Center test mandating that the physician exercise control over the patient could discourage outpatient care to the detriment of the state's express policy of providing the "least restrictive alternative," "least restrictive environment," or "least restrictive appropriate care and treatment" to mental patients. See OCGA § 37-3-161 ("It is the policy of the state that the least restrictive alternative placement be secured for every patient at every stage of his medical treatment and care."). See also OCGA §§ 37-3-1(10); 37-3-81.1(a)(2); 37-3-82; 37-3-83(e); 37-3-90(c). Moreover, the imposition of liability for an outpatient under these circumstances could discourage physicians from including the relative of any mental health patient or for that matter, the relative of a minor in the treatment process out of concern that the physician would be exposed to greater liability.
The general rule that a doctor has no duty to prevent harm to third parties applies without exception in this case. Consequently, the trial court's decision granting summary judgment in favor of Dr. O'Brien was authorized.
2. Bruscato further argues that the trial court erred in concluding that Dr. O'Brien had no duty to warn Mrs. Bruscato of Victor's dangerousness following the withdrawal of the anti-psychotic medications. We discern no error.
As an initial matter, there was no evidence sufficient to rebut Dr. O'Brien's direct testimony that he warned Mrs. Bruscato of potential risks of removing Victor from the medications.[8] Dr. O'Brien testified that he *445 informed Mrs. Bruscato that by withholding the psychiatric medications, "there was an increased risk of [Victor's] agitated behavior returning" and "an increase[d] risk of violence." Bruscato failed to provide any contradictory evidence in support of his claim alleging a failure to warn, and, therefore, summary judgment in favor of Dr. O'Brien was authorized.
Moreover, "[t]here is no duty to warn of the obvious, or of that which the plaintiff already knew or should have known." (Citation and punctuation omitted.) Jacobs v. Taylor, 190 Ga.App. 520, 527(2), 379 S.E.2d 563 (1989). The uncontroverted evidence established that Mrs. Bruscato already knew of Victor's violent tendencies based upon past incidents occurring before the medications were withdrawn. Furthermore, after the medications were withdrawn, Mrs. Bruscato's knowledge of Victor's behavioral tendencies was superior to that of Dr. O'Brien's. Unlike Dr. O'Brien's limited observations of Victor's behavior during his monthly office visits, Mrs. Bruscato had supervised Victor daily for three years prior to the incident. She had readily observed Victor's behavioral tendencies both before and after the medications were withdrawn. Notwithstanding her observations, she failed to report the truth of Victor's mental state to Dr. O'Brien and the visiting nurse and instead indicated that Victor was "doing well" without the medications. Based upon these circumstances, Dr. O'Brien was not legally required to warn Mrs. Bruscato of the precise danger to which she was already fully aware. See Id.
Judgment affirmed.
BLACKBURN, P.J., and RUFFIN, J., concur.
NOTES
[1] Bruscato filed the lawsuit, individually and as the surviving spouse of Lillian Lyn Bruscato (the deceased mother), in his capacity as executor of the estate of Lillian Lyn Bruscato, and in his capacity as guardian of the person and property of Victor J. Bruscato. The complaint essentially alleges claims of professional negligence, simple negligence, wrongful death, and breach of contract against Dr. O'Brien, Gwinnett-Rockdale-Newton Community Service Board ("GRN"), and Northside Psychiatric Center, Inc. Dr. O'Brien was employed by Northside Psychiatric Center, Inc., a contract service provider for GRN. The trial court granted summary judgment in favor of GRN and Northside on all claims. The medical malpractice claims brought on behalf of Victor remain pending for jury determination. In this appeal, Bruscato challenges only the grant of summary judgment to Dr. O'Brien on claims arising out of the injury and death of the mother, Lillian Lyn Bruscato.
[2] Mrs. Bruscato told her pastor, church members and friends that she wanted Victor to be taken off all medication.
[3] Dr. O'Brien testified that Victor's affect and rapid thought and speech were not unusual for Victor.
[4] "[F]or th[e] duty to control to arise, the physician must be able to exercise control over the freedom of a mental patient, or claim the legal authority to confine or restrain the patient against his will." (Citation and punctuation omitted.) Keppler, 205 Ga.App. at 33, 421 S.E.2d 306. "[A]bsent being appointed the legal guardian of the person, there must be evidence of actual assumption of physical control as well as knowledge of the danger the person poses to others if the control is not reasonably maintained." Trammel v. Bradberry, 256 Ga.App. 412, 417(2), 568 S.E.2d 715 (2002).
[5] The trial court applied the Bradley Center test and concluded that it had not been met as a matter of law. Bruscato does not challenge the trial court's conclusion that the test had not been met, but instead argues that the test was not applicable under the circumstances here.
[6] "The physician-patient relationship is a consensual one wherein the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient." (Citation and punctuation omitted.) Clanton v. Von Haam, 177 Ga.App. 694, 696(1), 340 S.E.2d 627 (1986).
[7] We further note that the Restatement, Torts 2d, §§ 314A and 320, which describe special relationships that could give rise to the duty to aid or protect, do not support the conclusion that a duty would exist under the circumstances of this case. The special relations provided in these sections extend to common carriers, innkeepers, possessors of land, and individuals who are required by law or who voluntarily take custody of another. Although the Restatement provisions state that the special relationships are not limited to those specifically designated, the comments to those provisions otherwise suggest that special relationships are based upon a duty to control.
[8] The warning was not reflected in Dr. O'Brien's records. This circumstantial evidence would authorize, but not demand, an inference that no such warning was given. As such, it had no probative value against Dr. O'Brien's positive and uncontradicted direct testimony to the contrary. See Copeland v. Houston County Hosp. Auth., 215 Ga.App. 207, 208, 450 S.E.2d 235 (1994). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340088/ | 660 S.E.2d 855 (2008)
COOK
v.
COVINGTON CREDIT OF GEORGIA, INC.
No. A08A0777.
Court of Appeals of Georgia.
April 8, 2008.
*856 Graylin C. Ward, Newnan, for appellant.
Glover & Davis, Peter A. Durham, Newnan, and Douglas A.C. Hurdar, for appellees.
BLACKBURN, Presiding Judge.
In this tort action, Charlie Cook sued Sharon Gravitt, John Carter, and their employer, Covington Credit of Georgia, Inc., alleging that he suffered damages as a result of defendants' assault, battery, and intentional infliction of emotional distress. Following a directed verdict in favor of defendants as to Cook's intentional infliction of emotional distress claim and a jury verdict in favor of defendants as to his remaining claims, Cook appeals, arguing that the trial court erred in (i) excluding the testimony of one of his proffered witnesses and (ii) granting defendants' motion for directed verdict on the ground that defendants' conduct was not sufficiently extreme or outrageous. For the reasons set forth below, we affirm.
A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50(a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.
(Punctuation omitted.) Moran v. Kia Motors America.[1]
So viewed, the record shows that in November 2004, Cook had fallen behind on the repayment of a loan he had obtained from Covington Credit. As employees of Covington Credit, Gravitt and Carter attempted to contact Cook via telephone calls to discuss his default but, for the most part, were unsuccessful. On November 22, 2004, in a final attempt to meet with Cook and resolve the matter before filing a lawsuit, Gravitt and Carter went to the local hospital where Cook was employed as a janitor. Upon finding Cook, Gravitt and Carter confronted him regarding his default on the loan. Cook became upset, asked them both to leave, and also asked them not to bother him at work. Ignoring Cook's request, Gravitt continued her attempt to discuss the matter with him face to face, at which point Cook pushed her to the ground. Carter intervened, was pushed by Cook, and the two began fighting. During the brief melee, Carter insulted Cook with racial epithets. Hospital staff quickly broke up the fight, and the police were called.
As a result of the incident, Cook was suspended from his job for three days, during which time the hospital required him to undergo financial counseling. In November *857 2005, he filed suit against Gravitt, Carter, and Covington Credit, alleging that he suffered damages as a result of defendants' assault, battery, and intentional infliction of emotional distress. At trial, Cook, Gravitt, Carter, and several other witnesses testified regarding the confrontation and ensuing fight. At the close of Cook's evidence, defendants moved for a directed verdict as to Cook's claim of intentional infliction of emotional distress, arguing that Cook had failed to show that defendants' conduct was extreme or outrageous and that he had failed to show that his emotional distress was severe. The court granted defendants' motion, and the jury ultimately rendered a verdict in favor of defendants as to Cook's remaining claims. This appeal followed.
1. Cook contends that the trial court erred in excluding the testimony of one of his proffered witnesses on the ground that the witness's testimony was irrelevant. We disagree. "A trial court retains broad discretion in determining whether to admit or exclude evidence, and an appellate court generally will not interfere with that discretion absent abuse." Carlisle v. Abend.[2] Specifically, absent an abuse of discretion, "we will not interfere with a trial court's determination as to the admission or exclusion of evidence on the grounds of relevancy." Jackson v. Heard.[3]
During the trial of this matter, Cook called Charlie Glenn, another employee of the hospital, as a witness who would testify that Covington Credit had been harassing Glenn after confusing him with Cook. Upon defense counsel's objection that Glenn's testimony would be irrelevant, the trial court allowed Cook to make a proffer to demonstrate relevance outside the presence of the jury. Glenn then testified that Covington Credit had phoned him several times at work, claiming that he owed money, which he ignored since he had never obtained a loan from the company. He further testified that a few days before Cook's confrontation with Gravitt and Carter, he went to Covington Credit's local office, presented the employees there with his identification to show that they were calling the wrong person, and demanded that the calls cease. However, when questioned by the trial court, Glenn stated that he had not informed Cook that Covington Credit had been harassing him until after the November 22 incident. Consequently, the trial court excluded Glenn's testimony on the ground that Covington Credit's conduct toward Glenn was not relevant to the issue of whether its conduct toward Cook was extreme or outrageous.
Under these circumstances, we discern no abuse of discretion. Covington Credit's conduct toward Glenn did not affect Cook whatsoever given the fact that he was not even aware of such conduct until after his own confrontation with Covington Credit employees. Thus, Covington Credit's conduct toward Glenn was irrelevant to the issue of whether its conduct and that of its employees toward Cook was extreme or outrageous. See Sanders v. Brown[4] (evidence of appellees' previous disputes with neighboring landowners other than appellants was irrelevant to issue of whether appellees' conduct toward appellants was tortious). Accordingly, the trial court did not abuse its discretion in excluding Glenn's testimony as irrelevant.
2. Cook also contends that the trial court erred in granting a directed verdict on the ground that defendants' conduct was not sufficiently extreme or outrageous and on the ground that his emotional distress was not severe.[5] We disagree.
To prove a claim of intentional infliction of emotional distress, a plaintiff must show that: (1) the defendant's conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the *858 wrongful conduct and the emotional distress; and (4) the emotional distress was severe.
Lockhart v. Marine Mfg. Corp.[6]
Actionable conduct does not include insults, threats, indignities, annoyances, petty oppressions, or other vicissitudes of daily living but must go beyond all reasonable bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community.
(Punctuation omitted.) Pierce v. Wise.[7]
"Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law." Lockhart, supra, 281 Ga.App. at 147, 635 S.E.2d 405.
Here, despite evidence that defendants made numerous demands over the telephone and personally confronted Cook in an effort to have him repay the loan he had been given, Cook has failed to demonstrate that defendants' conduct was sufficiently extreme and outrageous to sustain his claim for intentional infliction of emotional distress. This Court has previously held that threatening language in the context of collecting a debt does not go beyond all bounds of decency and cannot be regarded as utterly intolerable in a civilized community. See Cornelius v. Auto Analyst,[8] Moreover, Cook conceded that he initiated the physical altercations with both Gravitt and Carter. Thus, any emotional distress caused specifically by the fight with Carter was the result of Cook's own actions and cannot be the basis for his claim. See Phillips v. Pacific & Southern Co.[9] Additionally, although Carter's use of a racial epithet to insult Cook during their confrontation was certainly demeaning, degrading, and insensitive, such conduct did not constitute egregious or outrageous behavior so as to sustain a claim for intentional infliction of emotional distress. See Lockhart, supra, 281 Ga.App. at 148, 635 S.E.2d 405; Hodor v. GTE Mobilnet.[10]
Finally, Cook failed to show that the emotional distress he suffered as a result of his confrontation with Gravitt and Carter was severe. He testified that he only saw a psychiatrist on one occasion shortly after the incident and that he was deemed to be in no need of anger management counseling. He further testified that the purpose of the mandatory counseling that he attended was to address his financial issues. Cook also acknowledged that he did not lose his job as a result of the incident, and, in fact, received assistance from the hospital in repaying the Covington Credit loan. Given these circumstances, it cannot be said that the result of the confrontation with Gravitt and Carter "was the causation of mental suffering so serious as to give rise to a claim for intentional infliction of emotional distress." Pierce, supra, 282 Ga.App. at 713-714(2), 639 S.E.2d 348. See Odem v. Pace Academy.[11] Accordingly, the trial court did not err in directing a verdict in favor of defendants as to that claim.
Judgment affirmed.
MILLER and ELLINGTON, JJ., concur.
NOTES
[1] Moran v. Kia Motors America, 276 Ga.App. 96, 622 S.E.2d 439 (2005).
[2] Carlisle v. Abend, 288 Ga.App. 150, 151(2), 653 S.E.2d 388 (2007).
[3] Jackson v. Heard, 264 Ga.App. 620, 621, 591 S.E.2d 487 (2003).
[4] Sanders v. Brown, 178 Ga.App. 447, 454(7), 343 S.E.2d 722 (1986).
[5] Cook has not alleged that defendants engaged in unreasonable collection tactics under OCGA § 7-3-25(a), and thus we do not address that issue here.
[6] Lockhart v. Marine Mfg. Corp., 281 Ga.App. 145, 146-147, 635 S.E.2d 405 (2006).
[7] Pierce v. Wise, 282 Ga.App. 709, 713(2), 639 S.E.2d 348 (2006).
[8] Cornelius v. Auto Analyst, 222 Ga.App. 759, 762(2)(d), 476 S.E.2d 9 (1996).
[9] Phillips v. Pacific & Southern Co., 215 Ga.App. 513, 516, 451 S.E.2d 100 (1994).
[10] Hodor v. GTE Mobilnet, 244 Ga.App. 297, 299, 535 S.E.2d 300 (2000).
[11] Odem v. Pace Academy, 235 Ga.App. 648, 656(2), 510 S.E.2d 326 (1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2567990/ | 44 F.Supp.2d 818 (1999)
UNITED STATES of America
v.
Shelly L. DALE, Tamala Michelle Woods.
No. 1:99-CR-10.
United States District Court, E.D. Texas, Beaumont Division.
March 24, 1999.
David H. Henderson, Jr. Assistant U.S. Attorney, Beaumont, TX, for plaintiff U.S.
Walter J. Pink, Houston, TX, for defendant Dale.
Bruce A. Hoffer, Beaumont, TX, for defendant Woods.
ORDER
COBB, District Judge.
On January 8, 1999, Shelly Dale was driving a 1998 Toyota rental car east on *819 Interstate 10 near the city limits of Beaumont, Texas. Tamala Michele Woods was her passenger. Beaumont Police Department officers Froman and LaChance were on patrol at 8:49 a.m. that day and observed that the passenger, Woods, was not wearing a seat belt as required by the Texas Transportation Code, § 543.413.
The patrol unit driver, Froman, activated his emergency lights to stop the automobile for this violation. Dale pulled over, stopped, and exited her car when requested by Froman. Dale, upon questioning by Froman, stated she was from St. Louis, Missouri, and that she and her friend Woods were returning to St. Louis from Houston after attending the private wedding of a friend in Houston, Texas.
Interestingly, the same two persons had been stopped by the same officers about six months before and stated they were returning from Houston to St. Louis after attending the private wedding of a friend. On the prior occasion, Froman received permission to search the vehicle from both occupants, and upon a search, no contraband was discovered, and they continued their journey without further let or hindrance.
On January 8, 1999, Froman noted that he had initialed Dale's Social Security card lightly in pencil, which was his method to indicate a prior stop. Dale, a slender woman, was dressed in loose fitting, billowing clothing, and could not produce her driver's license upon request without considerable searching of the contents of her purse and wallet. She seemed nervous and walked in a slow, stiff-legged, awkward manner upon leaving the rental car and standing by the patrol car. Mrs. Woods complied with LaChance's request that she step out of the passenger side of the car. She stumbled on the paved shoulder as she got out, and walked in a slow, awkward and stiff-legged manner as she approached the patrol car. Officer LaChance called to check on any outstanding warrants for both occupants, and the car registration. He received a report from El Paso Information Center (EPIC) that someone with the same name as Woods had been arrested one year previously in Georgia for possession of either one pound or one kilo of cocaine. (This information was several weeks later found to be in error.) He told Froman about the EPIC report. Froman asked for Dale's consent to search the car, and she voluntarily consented. No contraband was found.
A video camera was automatically activated when the overhead emergency light had been turned on at 8:49 a.m. The video-tape was introduced in evidence and viewed by the court. It confirmed his testimony completely.
January 8, 1999, was an overcast, dry, cool day. Neither officer wore a jacket, but merely blue uniform shirts. LaChance, but not Froman, wore a short-sleeved shirt. The two defendants had loose, billowy clothes. The day was quite windy. Woods wore a short-sleeved top also. Both women, while in camera view, were constantly shifting, pulling on their clothes around the midrift, and seemed nervous. Woods requested her short coat or jacket which was brought to her from the car, but she did not wear it over her short-sleeved ensemble, but held it in the front of her body.
The consent was freely given to search the interior of the car and the trunk. No drugs were found. Froman requested a K-9 detection dog. He asked whether Dale had any objections. She voiced none, and later testified she merely wanted to cooperate, so she could proceed on her journey. She was heard on the audio portion of the videotape to agree to the K-9 sniff, even though it might take ten to fifteen minutes for the dog and its handler to arrive at the scene.
The dog arrived and alerted to the trunk area and to the passenger side of the interior compartment. Froman and LaChance searched the passenger compartment and the outside of the luggage, as well as the empty trunk. The dog continued *820 to alert, but no contraband had been discovered. On this breezy day, LaChance noticed bulges or lumps in the lower midsection of each woman when the wind blew the loose fitting garments against the bodies of the women. After imparting these observations to Froman, Froman requested a female officer to come to their location. One was not immediately available, but took "about" ten minutes to arrive. After patting down the two women, the female officer discovered foreign objects concealed on each of their persons at and below the waist in the front of each woman. The defendants were placed under arrest, and taken to the nearest police facility with a private restroom. Each was searched by the female officer Valedez, who discovered three kilos of cocaine hidden in each woman's panty hose. The packages were not oblong "bricks" of cocaine, but flat oblong packages approximately ten to twelve inches in size about 1 to 1½ inches thick were taken. Two of these were in the inside thigh or slightly above, in the front of each leg of the women's panty hose, and two rolls, much smaller, were in the waist area of the midsection or front of the panty hose in the area of the abdomen. Thus each woman had one kilogram in each upper leg or groin area, and one kilogram in the abdominal area. The latter was in two one-half portions of cocaine wrapped in plastic grocery bags.
The two defendants were then taken to the local DEA office and read their Miranda rights. Dale said she wanted a lawyer present, and the interview was terminated. Shortly thereafter, she said she wanted to cooperate. The other defendant did not request a lawyer according to Agent Ericson of the DEA, and consented to be interviewed.
Both made oral statements that were generally parallel. About six months before, although stopped in Beaumont, they successfully transported two kilograms of cocaine from Houston to East St. Louis, Illinois, concealed in their panty hose. Each remembered being stopped by the same officers, consenting to a vehicle search, and were allowed to continue their journey after no drugs were discovered.
Though vigorously and exhaustively attacked on cross-examination by the attorneys for the two defendants, it is apparent to the court the statements were voluntarily made. Dale said under direct examination that no promises were made to her. One of the principal reasons the court so finds that their statements were voluntary was that each told DEA agents about the previous successful transportation of four kilograms of cocaine from Houston to East St. Louis, Illinois. In the court's opinion, they would not have been revealed by either defendant (questioned separately), unless both of them voluntarily furnished that particular information.
Although each defendant testified at the suppression hearing that she was threatened by DEA agents with lengthy (six-eight years) prison terms, and frequent requests for a lawyer (all of which were allegedly ignored), it is the opinion of the court from the inherent contradictions in their testimony, their demeanor, their lack of candor the actual and body language, they both were less than candid in their testimony, despite the copious tears shed by defendant Dale almost from the third or fourth question from her attorney. The defendant Woods kept from crying, except when she was finally asked by her attorney about her family. Woods' testimony about her treatment at the hands of the DEA was internally inconsistent, often contradictory, alternately belligerent, evasive, and non-responsive. In this instance, when compared to the DEA's supervising agent's testimony, the testimony of the defendants is not the least persuasive, to put it in the mildest terms available. Dale twice denied any promises were made to her by DEA agents when asked that question by her attorney.
DISCUSSION
The Fourth Amendment prohibits unreasonable searches and seizures. United *821 States v. Shabazz, 993 F.2d 431 (5th Cir. 1993). There is no question but that the stopping of a vehicle and the detention of its occupants is a "seizure" within the meaning of the Fourth Amendment. Id. Seizures of motorists who are merely suspected of criminal activity are to be analyzed under the framework established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Id. A routine traffic stop is a limited seizure that closely resembles an investigative detention and the appellate courts have used Terry to analyze cases in which motorists were stopped for violating traffic laws. Id. at 435. Under Terry, the judicial inquiry into the reasonableness of a search of seizure "is a dual one whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances the interference in the first place." Id.
A. The initial stop of Defendants' car was a proper traffic stop for the offense of failure of passenger to wear secure seat belt.
Here, as in Shabazz, defendants were not merely suspected of criminal activity, but were observed by the detaining officers to commit a traffic offense (failure of the passenger to wear secure seat belt). See United States v. Castro, 166 F.3d 728 (en banc) (1999).
The traffic stop was valid. The pat-down of both defendants by the woman officer gave probable cause for the search of the defendant's clothing. The valid search of the defendants' clothes yielded six kilograms of cocaine. The motion to suppress the stop, the search and the fruits of the search are admissible, and that part of the motion to suppress is DENIED.
This court finds that the oral statements made by the defendants to agents of the DEA were not the results of force, threats, coercion, or promises. At this juncture, that motion to suppress is DENIED.
Upon trial of this matter, however, outside the jury's presence, the court will hear any and all testimony of any witnesses presented by the government and the defendants, and, if there is any substantial additional evidence adduced by any party which requires the exclusion of the oral statements, the court will so rule.
If the court, after hearing the evidence in the jury's absence, rules the oral statements are admissible, the jury will be given the appropriate charge concerning the voluntariness of the confessions, or statements, and instruct the jury concerning their roles in determining the validity of such statements or confessions.
Both defendants' motions to suppress are DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340144/ | 377 S.C. 368 (2008)
660 S.E.2d 497
TIME WARNER CABLE INFORMATION SERVICES (SOUTH CAROLINA), LLC, Appellant
v.
PUBLIC SERVICE COMMISSION OF SOUTH CAROLINA, Farmers Telephone Cooperative, Inc., Fort Mill telephone Co., Home Telephone Co., Inc., PBT Telecom, Inc., St. Stephen Telephone Co., South Carolina Telephone Coalition, and Office of Regulatory Staff,
Of whom Farmers Telephone Cooperative, Inc., Fort Mill Telephone Co., Home Telephone Co., Inc., PBT Telecom, Inc., St. Stephen Telephone Co., South Carolina Telephone Coalition, and Office of Regulatory Staff are, Respondents.
No. 26466.
Supreme Court of South Carolina.
Heard February 20, 2008.
Decided March 31, 2008.
*369 Frank R. Ellerbe, III, and Bonnie D. Shealy, both of Robinson, McFadden & Moore, P.C., of Columbia, for appellant.
M. John Bowen, Jr., Margaret M. Fox, Sue-Ann Gerald Shannon, and Robert T. Bockman, all of McNair Law Firm, P.A., of Columbia, for respondents Telephone Companies and South Carolina Telephone Coalition.
*370 Florence P. Belser and Nanette S. Edwards, both of Columbia, for respondent Office of Regulatory Staff.
Justice MOORE:
Appellant Time Warner Cable Information Services (South Carolina), LLC (hereinafter "Time Warner")[1] appeals the denial of its application for an extension of certification into new service areas. We affirm.[2]
FACTS
Time Warner filed an application with the Public Service Commission (Commission) on October 1, 2004, requesting an amended certification for IP Voice Service, or Voice Over Internet Protocol (VoIP), that would provide telephone service using the internet to customers with residential cable subscriptions. Time Warner was providing this service in other areas pursuant to an existing tariff filed May 24, 2004. Respondents, including rural local exchange carriers (hereinafter "Rural LECs"), opposed Time Warner's application. The Commission denied the application based on a failure of proof and the circuit court affirmed.
ISSUES
1. Did the Commission err in finding a failure of proof?
2. Did the Commission err in ruling that certification is not required to negotiate for interconnect agreements?
3. Did the Commission err in ruling on the basis of the rural exemptions?
STANDARD OF REVIEW
On appeal, we apply a deferential standard in reviewing decisions by the Commission and will affirm a decision if supported by substantial evidence. Kiawah Prop. Owners Group v. Public Service Comm'n, 357 S.C. 232, 593 S.E.2d 148 (2004). The Commission's findings are presumptively correct, *371 requiring the party challenging an order to show the decision is clearly erroneous in view of the substantial evidence on the record. Id.
DISCUSSION
1. Failure of proof
Time Warner contends the Commission's order denying its application based on a failure of proof is arbitrary and capricious since the Commission granted it an expansion of certification in another case based on the same record.
Some procedural background is relevant here. Time Warner was originally certified as a local exchange carrier (LEC) to provide VoIP retail services in May 2004. A certificate was granted subject to a stipulation that Time Warner was seeking to serve customers only in areas where the existing LEC did not have a federal rural exemption.[3] Time Warner subsequently filed an application to expand its services into areas served by an existing LEC, ALLTELL, based on the testimony of its representative, Julie Patterson. ALLTELL did not appear to contest the application and the application was granted by order dated July 27, 2005.
Time Warner contends it was error to deny the application in the proceeding here because the application in ALLTELL, which was granted, incorporated the same testimony by Patterson given at the hearing on the application here. The record in this proceeding, however, is not limited to Patterson's testimony as it was in the uncontested ALLTELL proceeding. Here, the Rural LECs opposed the application based on testimony by their expert witnesses. These witnesses testified that allowing Time Warner's VoIP service would have an adverse impact on the affordability of rural *372 telephone service. Time Warner's residential cable customers are located in more densely populated areas and the company therefore would not be able to serve the sparsely populated areas. Rural LECs rely on revenue from the more densely populated areas to maintain affordable rates for rural subscribers. With the loss of revenue from competition in densely populated areas, Rural LECs would have to raise rates to rural subscribers who have no access to VoIP.
In light of this testimony, Time Warner's argument that the Commission's order in ALLTELL compels the grant of its application here is without merit. The record in this case supports the Commission's decision since the record includes evidence that the proposed expanded certification will adversely impact the availability of local exchange service. See S.C.Code Ann. § 58-9-280(B)(3) (Supp.2006).
2. Interconnection agreements
Time Warner contends the Commission erred as a matter of law in holding that the company does not need certification as an LEC to obtain interconnect agreements with existing LECs in these areas. The Commission held that Time Warner "may enter into such negotiations without further approval of this Commission."
State law provides for interconnect agreements between certified LECs. Section 58-9-280(C)(1) (Supp.2006) provides:
The commission shall determine the requirements applicable to all local telephone service providers necessary to implement this subsection. These requirements shall be consistent with applicable federal law and shall:
(1) provide for the reasonable interconnection of facilities between all certified local telephone service providers upon a bona fide request for interconnection....
(emphasis added).
Here, the Commission ruled only that certification is not required before negotiating for interconnect agreements. This ruling is not inconsistent with state law. Section 58-9-280(C)(1) provides that interconnect agreements may ultimately be approved only if between certified carriers. No approval of interconnect agreements is at issue here. Under the Commission's ruling, Time Warner therefore does not need certification as an LEC at this time for its stated purpose of *373 negotiating interconnect agreements. Since the Commission's order gives Time Warner permission to negotiate for interconnect agreements, there is no relief to be granted on appeal.
3. Waiver of rural exemptions
Time Warner complains the Commission should not have based its ruling on the company's failure to seek a waiver of the Rural LECs' rural exemption under federal law.
The Commission's order notes that Time Warner was not seeking a waiver of the Rural LECs' rural exemption under federal law. This exemption provides that a rural company need not interconnect until a bona fide request is received and the state commission finds it is not economically burdensome, is technically feasible, and otherwise complies with federal law.[4] On rehearing, however, the Commission emphasized that the rural exemptions were not dispositive of any of the issues in this proceeding. Time Warner's argument is therefore without merit.
Accordingly, the circuit court's order affirming the denial of Time Warner's application is
AFFIRMED.
TOAL, C.J., WALLER, PLEICONES and BEATTY, JJ., concur.
NOTES
[1] This company is a limited liability member of the Time Warner, Inc., corporate family.
[2] The Commission declined to rule on Time Warner's "modified application" and we do not address it here.
[3] The rural exemption provides specific treatment for a rural LEC and is found in 47 U.S.C. § 251:
(f)(1) Exemption for certain rural telephone companies
(A) Exemption
Subsection (c) of this section [imposing certain duties including a duty to interconnect] shall not apply to a rural telephone company until (i) such company has received a bona fide request for interconnection, services, or network elements, and (ii) the State commission determines ... that such request is not unduly economically burdensome, is technically feasible, and is consistent with [other sections].
[4] See footnote 3, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340132/ | 660 S.E.2d 848 (2008)
WOMBLE
v.
The STATE.
No. A08A0333.
Court of Appeals of Georgia.
April 4, 2008.
*849 Albert L. Watson III, Chattanooga, TN, for appellant.
Herbert E. Franklin Jr., Dist. Atty., Alan C. Norton, Asst. Dist. Atty., for appellee.
ANDREWS, Presiding Judge.
John Womble appeals from the judgment of conviction and sentence entered on jury verdicts finding him guilty of criminal attempt to manufacture methamphetamine and possession of methamphetamine. For the following reasons, we affirm the judgment of conviction and sentence as it relates to criminal attempt to manufacture methamphetamine, and vacate the judgment of conviction and sentence as it relates to possession of methamphetamine.
Womble was jointly tried with three co-defendants, two of which (Cliff Frashier and Patricia Frashier) resided at a house located at 301 Pine Street in the City of Lafayette. The State presented evidence from police officers trained and experienced in the investigation of clandestine methamphetamine laboratories and assigned to the Lookout Mountain Judicial Circuit Drug Task Force. Two officers went to the door of the Frashier residence and knocked for the purpose of investigating suspicions that there was illegal controlled substance activity at the house. When Mr. Frashier opened the door and the officers identified themselves, they immediately recognized the strong odor of methamphetamine manufacturing emanating from inside the house. Although Frashier denied that anyone else was in the house, the officers *850 could hear the sound of people running around inside the house as they stood at the open door. Based on concerns that evidence was being destroyed and concerns for their own safety, the two officers entered the house. Inside the house, the officers found Womble in the kitchen area, and a third co-defendant was found by another officer exiting the house. While ensuring that the house was clear of any other people, the officers observed in the toilet what appeared to be methamphetamine oil, a bi-level liquid processed in the last stage of manufacturing methamphetamine for sale and use. When an officer asked Frashier and Womble if they had any illegal items on their persons, Frashier produced a package of iodine crystals and a container of used coffee filters, and Womble produced a hypodermic needle. Testimony by the officers showed that iodine crystals and coffee filters are commonly used to manufacture methamphetamine, and that hypodermic needles are used to administer methamphetamine. After the suspected methamphetamine oil was obtained from the toilet pursuant to a search warrant, it was tested at the State Crime Laboratory and found to be positive for methamphetamine.
1. Womble enumerates as error that the officers' entry into the Frashier residence without a warrant constituted an illegal search in violation of the Fourth Amendment. There being no evidence that Womble resided at the residence or had any ownership or possessory interest in the residence, he had no expectation of privacy in the residence and thus no standing under the Fourth Amendment to challenge the search of the residence. Thomas v. State, 274 Ga. 156, 159, 549 S.E.2d 359 (2001); Moody v. State, 232 Ga.App. 499, 504, 502 S.E.2d 323 (1998). Although the record contains a one-sentence order denying without comment a motion to suppress filed by Womble, the record does not contain the motion to suppress, and Womble does not argue on appeal that the trial court erred by denying the motion. Moreover, Womble did not object when the officers testified as to the items they found on him and Frashier, and Womble affirmatively stated that he had no objection to admission of the methamphetamine oil seized from the residence's toilet. There is no merit to this enumeration of error.
2. Womble claims that the evidence was insufficient to prove that he possessed methamphetamine. At the joint trial, the State's case was based on the assertion that Womble and the co-defendants had joint constructive possession of the methamphetamine. The only evidence of methamphetamine was the quantity of methamphetamine contained in the mixture of methamphetamine oil found in the toilet at the residence.[1] Even though there was no evidence that Womble was in actual physical possession of the methamphetamine oil, if he knowingly had both the power and intention at a given time to exercise dominion over it, then he had constructive possession. Wilson v. State, 256 Ga.App. 741, 742, 569 S.E.2d 640 (2002). But a finding that Womble had constructive possession of the methamphetamine oil must be based upon some connection between the contraband and Womble other than spatial proximity. Reid v. State, 212 Ga.App. 787, 788, 442 S.E.2d 852 (1994). "Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction." (Citation and punctuation omitted.) Id. Circumstantial as well as direct evidence may show constructive possession of contraband and participation in the illegal act. Wilson, 256 Ga.App. at 742, 569 S.E.2d 640.
The State produced evidence connecting Womble to the methamphetamine oil by more than spatial proximity. Evidence showed that the production of methamphetamine oil was a final stage in the process of *851 manufacturing methamphetamine in a form suitable for sale and personal use, and the officers recognized the strong odor of the methamphetamine manufacturing process permeating the house where Womble was located along with the methamphetamine oil. Womble had on his person a hypodermic needle, which the officers testified was a device used to administer the finished methamphetamine product. Thus the State connected Womble to the methamphetamine by showing that he was located in the house in possession of a device used in connection with methamphetamine, while methamphetamine was being manufactured in the house and the odor of the manufacturing process permeated the house. The evidence was sufficient for the jury to find beyond a reasonable doubt that Womble was guilty of possession of methamphetamine in the form of methamphetamine oil in violation of OCGA § 16-13-30(a); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The evidence was also sufficient for the jury to find beyond a reasonable doubt that Womble was guilty of criminal attempt to manufacture methamphetamine. As to the criminal attempt charge, evidence that Womble was processing and in possession of methamphetamine oil showed that, with the intent to commit the crime of manufacturing methamphetamine in violation of OCGA § 16-13-30(b), Womble performed an actprocessing and possession of methamphetamine oil which constituted a substantial step toward commission of that crime. OCGA § 16-4-1; Jackson, supra.
3. Even though Womble did not raise the issue in the trial court or on appeal, we nevertheless find that his convictions for possession of methamphetamine (Count 4) and criminal attempt to manufacture methamphetamine (Count 3) merged as a matter of fact, and that he cannot be convicted and sentenced for both offenses. Curtis v. State, 275 Ga. 576, 571 S.E.2d 376 (2002); Bryan v. State, 271 Ga.App. 60, 64-65, 608 S.E.2d 648 (2004).
When the same conduct establishes the commission of more than one crime, a defendant may be prosecuted for each crime, but may not be convicted of both. In determining whether multiple offenses merge, the key question is whether the different offenses are proven with the same facts." (Footnotes omitted.)
Gooch v. State, 249 Ga.App. 643, 648, 549 S.E.2d 724 (2001). Here, the indictment and the evidence produced at the trial shows that Womble's conviction for possession of methamphetamine in the form of methamphetamine oil is based on the same conduct as Womble's conviction for criminal attempt to manufacture methamphetamine by processing and possessing the same methamphetamine oil. Since the only evidence of possession was the same evidence that established criminal attempt, we find that the possession conviction is included as a matter of fact in the criminal attempt conviction, and that the possession conviction and sentence are vacated by operation of law. Curtis, 275 Ga. at 577-579, 571 S.E.2d 376; Bryan, 271 Ga.App. at 64-65, 608 S.E.2d 648. Accordingly, we vacate the sentences imposed on the convictions for possession and criminal attempt, and remand the case for the trial court to merge the possession conviction (Count 4) into the criminal attempt conviction (Count 3) and resentence Womble on the surviving Count 3 conviction. Ratledge v. State, 253 Ga.App. 5, 7, 557 S.E.2d 458 (2001); Mack v. State, 283 Ga.App. 172, 175-176, 641 S.E.2d 194 (2007).
Judgment affirmed in part and vacated in part. Sentences on counts 3 and 4 vacated, and case remanded for resentencing on count 3.
RUFFIN and BERNES, JJ., concur.
NOTES
[1] Because it contained methamphetamine, the methamphetamine oil was a Schedule II controlled substance. Unless specifically excepted or listed in another schedule, OCGA § 16-13-26(3) includes as a Schedule II controlled substance any material, compound, mixture, or preparation which contains any quantity of the following substances included as having a stimulant effect on the central nervous system: . . . (B) Any substance which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340145/ | 660 S.E.2d 713 (2008)
BLY
v.
The STATE.
No. S07G1640.
Supreme Court of Georgia.
April 21, 2008.
*714 James R. McNiff, Law Office of Rob McNiff LLC, Winerville, Barry Gordon Irwin, Hull, for appellant.
Fredrick D. Bright, Dist. Atty., Stephen A. Bradley, Asst. Dist. Atty., for appellee.
HUNSTEIN, Presiding Justice.
We granted certiorari to consider whether the Court of Appeals erred by upholding the admission of opinion testimony by a witness who did not personally observe the events that formed the basis for the criminal charges brought against appellant Nathaniel Bly. Bly v. State, 286 Ga.App. 43(3), 648 S.E.2d 446 (2007). For the reasons that follow we hold that the admission of the witness's testimony constituted reversible error.
Bly was convicted of aggravated assault on a police officer and felony obstruction arising out of a traffic stop conducted by Eatonton Police Officer Noel Hawk[1] around 1:30 a.m. on September 21, 2003. The trial transcript reveals that Hawk, after observing a Ford truck being driven consistently a few inches over the center line, activated his lights based on his suspicion that the driver, Bly, was under the influence.[2] Bly promptly pulled over beside the courthouse. The driver of another police car, Officer Willie Brinkley, who just happened to be in the area, pulled up behind Hawk to provide support. Conflicting accounts were given at trial by Hawk and Bly regarding what occurred during the stop. Hawk testified that he asked Bly for his license and proof of insurance and when Bly asked why he had been stopped, Hawk answered it was "for driving over the center line back there."[3] Bly then cursed him and said the officer was lying; Hawk told Bly not to curse him and repeated his request for Bly's driver's license and insurance, but Bly cursed him again. At this point, Brinkley was on the other side of the truck ("between the back tire and the passenger door") when Hawk testified he "reached and opened [Bly's] truck door and told [Bly] to get out. At that time he kicked me. He had laidhe just laid over the seat, like this, and just took his left leg and kicked me." Hawk testified that he said to Brinkley, "he just kicked me." Hawk got his pepper spray from his duty belt in his right hand and saw Bly fumbling towards something in the floorboard of the passenger side of the truck. Using his left hand, Hawk "reached in and grabbed [Bly] by his left arm." As Hawk "made contact, to snatch him up, I felt a blow into my arm." Feeling pain and not knowing what had happened, *715 Hawk used the pepper spray on Bly and backed out of the vehicle, drawing his service revolver and baton. Hawk "hollered" to Brinkley that he had been stabbed and Brinkley started around the front of the truck. Hawk "had already drawn [his] weapon" when Brinkley "immediately started around the truck."
Bly testified that after he pulled over in response to the blue lights, he turned on an interior light in his truck and placed his hands on top of the steering wheel. When Hawk arrived, Bly asked why he had been stopped but Hawk simply told Bly to give him Bly's license and insurance card. When Bly asked again, Hawk said to give him the documents "before he snatched my little ass out of the truck and bounce[d] it off the cement." Bly told Hawk his insurance card was in the dash compartment and got Hawk's permission to look there for the card. As Bly leaned across the front seat, the truck door opened and Bly "felt something nudging my leg" and looked to see an arm coming up the seat between his legs towards his crotch. Bly testified he did not see Hawk, whom he thought had circled around to the passenger side to observe him for security purposes while he opened the glove box. Bly seized a pair of wire snips on the seat and hit the arm while it was still between Bly's legs. The arm recoiled and then Bly was sprayed in the face with pepper spray and ordered out of the truck. Bly complied and Brinkley handcuffed him and placed him in his police car. It is uncontroverted that Bly did not struggle with or offer any resistence to Brinkley. Bly acknowledged cursing Hawk because he "was right ill with me," but denied making any move towards him.
The only other witness to the traffic stop was Brinkley. He testified that he "wasn't there at the beginning" of the stop. He heard Bly yell curse words at Hawk and Hawk ask Bly to step out of the truck. "And somehow or another, [Bly] leaned over [the truck's front seat] and when he come out I was walking around back around to the driver's side where Officer Hawk was. Officer Hawk said that he stabbed me. And I looked and blood was gushing out from one of his arms." Brinkley testified on cross-examination that he "didn't see anything"; did not see Bly kick Hawk; did not hear Hawk say he had been kicked; heard Hawk "hollering and yelling" to Bly to step out of the truck; and acknowledged that the "first thing" he saw when he stepped around to the driver's side of the truck was Hawk with his service revolver pulled.
After producing the testimony of Officer Eldredge, who arrived on the scene after the events occurred, and the medical doctor who tended to Hawk's injury, the State called as its final witness Special Agent Ricky Harvey, a 24-year veteran of the Georgia Bureau of Investigation. Harvey testified that he was called in by the chief of the Eatonton Police Department to investigate the assault on Hawk "to find out what happened. Make sure the department did what they were supposed to do." After initially testifying that the prior statements made to him by Officers Hawk, Brinkley and Eldredge during his investigation were consistent with their trial testimony,[4] and answering repeated questions posed by the prosecutor[5] regarding appellant's exercise of his right to remain silent,[6] Harvey was *716 asked, "you've heard the evidence in this case and you sat here through all the testimony. From your training and experience, do you think Officer Hawk " When appellant's counsel interposed an objection, the trial court stated it had not heard the question and instructed the prosecutor to repeat the question in its entirety. The prosecutor then asked Harvey,
[b]ased on your experience and training, and all the testimony that you heard in court today about what happened on that street, do you think Officer Hawk acted appropriately as a police officer in the line of duty?[7]
The trial court ruled that it would "allow him to answer it because of his training and experience." Harvey answered the question by stating, "[y]es, sir."
1. The Court of Appeals found that the admission of Harvey's testimony was proper, relying on the rule set forth in McMichen v. Moattar, 221 Ga.App. 230(2), 470 S.E.2d 800 (1996) and In the Interest of Smith, 143 Ga.App. 358(2), 238 S.E.2d 725 (1977), that when the subject matter of an inquiry "`relates to numerous facts perceived by the senses'" that cannot be adequately described and presented to the jury, "`the witness may state his impressions drawn from, and opinions based upon, the facts and circumstances observed by him or the effect which they produced upon his mind.'" (Emphasis supplied.) McMichen, supra, at 232(2), 470 S.E.2d 800. However, as both McMichen and Smith clearly reflect, this rule applies to witnesses who personally observed the events to which they are testifying and, essentially, authorizes such eyewitnesses to present a "shorthand" impression of those events in situations where language fails to adequately convey their observations to the jury with the "`same force and clearness as they appeared to the witness.'" Id. Hence, in McMichen, a lay eyewitness to a pedestrian-automobile collision was allowed to give his conclusion whether he thought the driver could have avoided the collision and in Smith, a caseworker in a termination of parental rights proceeding who had personally observed the mother and minor children in their home was allowed to testify about their physical and mental condition.
In this case, it is uncontroverted that Harvey did not personally witness any part of the traffic stop. His testimony was not a "shorthand" rendition of fact because it was not based on "facts and circumstances observed by him." McMichen, supra, 221 Ga. App. at 232(2), 470 S.E.2d 800. Rather, the challenged testimony constituted Harvey's opinion, which was based upon his second-hand assessment of the same evidence presented by the State to the jury.[8] The rule set forth in the second division in McMichen and in Smith was thus inapplicable to Harvey.
Contrary to the State's argument, the cases on which it relies do not support an opposite conclusion inasmuch as they involved opinions based on matters personally observed by the testifying officer. E.g., Marshall v. State, 270 Ga.App. 663, 607 S.E.2d 258 (2004) (experienced officers involved in arrest could give opinion that packaging of marijuana discovered in car was consistent with preparing it for sale); Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737 (1990) (officer, based on professional experience and personal observation of intoxicated driver, could testify whether driver was less safe to drive); Owens v. State, 161 Ga.App. 184, 288 S.E.2d 262 (1982) (officer who personally interrogated defendant authorized to give opinion whether statement was knowingly and voluntarily made). Equally distinguishable are cases involving expert testimony by officers regarding their analyses of physical evidence, e.g., Williams v. State, 279 Ga. 731(2), 620 S.E.2d 816 (2005) (blood spatter); *717 Bacon v. State, 178 Ga.App. 546(2), 343 S.E.2d 774 (1986) (accident reconstruction), because Harvey's opinion as to the propriety of Hawk's behavior was derived solely from his interviews with the witnesses for the State and the transcript establishes that his limited examination of some collateral aspects of the physical scene could have played no role in forming that opinion.[9] See Purcell v. Kelley, 286 Ga.App. 117(1), 648 S.E.2d 454 (2007) (harmful error to allow investigating officer to opine that defendant ran red light where officer's testimony was based solely on witness statements taken at scene, rather than on examination of physical evidence).
We therefore hold that the Court of Appeals erred by affirming the admission of Harvey's testimony on this basis.
2. The State argues that Harvey's testimony was nevertheless admissible under the rule set forth in another division in McMichen, namely, as expert opinion on an issue where the conclusion "is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the layman." (Citations and punctuation omitted.) Id., 221 Ga.App. at 230-231(1), 470 S.E.2d 800. The trial court never explicitly qualified Harvey as an expert. Compare Williams, supra, 279 Ga. at 732(2), 620 S.E.2d 816. However, arguably, the trial court implicitly accepted Harvey as an expert when it overruled Bly's objection to the question posed Harvey. See Stewart v. State, 246 Ga. 70(4)(a), 268 S.E.2d 906 (1980). We agree with Bly that the question improperly asked for a conclusion and thus find the trial court erred by denying his objection.
Opinion testimony is allowed where "`the nature of the question is such that the factors leading to a conclusion are not known to the common or average [person], but are among those things shrouded in the mystery of professional skill or knowledge.' . . . [Cit.]" Fordham v. State, 254 Ga. 59-60, 325 S.E.2d 755 (1985). However, where jurors can
"take the same elements and constituent factors which guide the expert to his conclusions and from them alone make an equally intelligent judgment of their own, independently of the opinion of others, then undoubtedly this should be done. . . . [Cit.]"
Id. at 59, 325 S.E.2d 755. Here, even assuming, arguendo, that expert testimony was needed to enable an average juror to understand the standard of conduct for a police officer during a traffic stop, no evidence was introduced at Bly's trial regarding the "elements and constituent factors" that "guide[d Harvey] to his conclusions."[10] Id. Moreover, whether or not Hawk, according to his version of events, "acted appropriately as a police officer in the line of duty," as Harvey was asked, was a matter regarding which the jurors could have made "an equally intelligent judgment of their own, independently of the opinion of [Harvey.]" Id. See also McCartney v. State, 262 Ga. 156(1), 414 S.E.2d 227 (1992) (error to admit expert testimony where jurors had ability to reach conclusion themselves). Accordingly, we find that Harvey's testimony was not admissible as expert opinion on an issue beyond the ken of the average layperson.
3. The State argues that the trial court's ruling, even if error, was not harmful. We do not agree. Resolution of the charges against Bly pivoted exclusively on the credibility of Hawk and Bly. On cross-examination the credibility of both men, the victim as well *718 as the accused, was attacked. No other evidence fully precluded or corroborated either man's version of the events. The only other evidence relevant to this ultimate issue of credibility came from Harvey. The 24-year veteran of the GBI was allowed to inform the jury that, after interviewing the officers and hearing their virtually-identical trial testimony, he thought Hawk had acted appropriately.
The credibility of a witness, including a victim witness, is a matter for the jury's determination under proper instruction from the court. OCGA § 24-9-80. It is well established that
a witness, even an expert, can never bolster the credibility of another witness as to whether the witness is telling the truth. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury.
(Citations and punctuation omitted.) Manzano v. State, 282 Ga. 557, 560(3)(b), 651 S.E.2d 661 (2007). See also Turtle v. State, 271 Ga. 440(2), 520 S.E.2d 211 (1999). Although Harvey did not directly state that he believed Hawk to have been truthful, his conclusion that Hawk acted appropriately was necessarily predicated upon Harvey's belief in the veracity of Hawk's statements to him as repeated by Hawk at trial. When reviewed within its context to determine whether it affected the trial's outcome, e.g., Branesky v. State, 262 Ga.App. 33(3)(a), 584 S.E.2d 669 (2003), we cannot conclude that the bolstering question to Harvey was harmless. Unlike Manzano, supra, the question to Harvey was no mere "rhetorical device" but instead was designed to assure the jury that an experienced and objective GBI agent had already vetted Hawk's statement and found his behavior appropriate. Unlike the expert in Al-Attawy v. State, 289 Ga.App. 570, 657 S.E.2d 552 (2008), whose single improper bolstering question occurred within the expert's otherwise appropriate discussion of the behavior of sexually abused children, Harvey never retreated from the bolstering testimony and there was no other disinterested testimony presented at trial from which the jury could reach an independent conclusion about Hawk's credibility. The testimony was deliberate, compare Branesky, supra, and was not ameliorated by any curative instructions. Compare Cortez v. State, 286 Ga.App. 170(2), 648 S.E.2d 488 (2007) (curative instructions and polling of jury constituted sufficient remedial measures to ensure fair trial after police officer improperly bolstered victim's testimony).
We find no merit in the State's argument that Bly's testimony alone was sufficient to support his convictions. If the jury believed Bly's testimony that Hawk had not ordered him out of the truck but instead had indicated that Bly could get his insurance card out of his dash; that Hawk waited until Bly was stretched across the front seat of the truck to open the door and reach inside without warning or justification with his left arm (leaving most of his body blocked from view by the door frame); and that Bly believed Hawk was on the passenger side of the truck, as was Brinkley, a jury might have believed that Bly's reflexive action of striking, with the nearest instrument available, a hand groping towards his crotch, was not an aggravated assault on a police officer or the intentional obstruction of a legal arrest but rather was a reasonable use of the amount of force necessary to defend Bly from the attempted assault on his person. OCGA § 16-3-21(a).
In conclusion, Harvey's testimony that Hawk acted appropriately improperly bolstered the credibility of Hawk, the victim of the offenses for which Bly was convicted.
Clearly, given the expert witness's knowledge and training, testimony that the expert believes the victim is "particularly compelling to . . . jurors. [Thus, i]t is for this reason that our courts have consistently held that expert witnesses may not testify regarding truthfulness or credibility. [Cits.]" [Cit.] And we have recognized that this testimony may be given particular weight when the credibility of the witness is a key issue in the case. . . . [S]uch error [can] not be deemed harmless [where] the evidence of guilt [i]s not overwhelming, and [where] the credibility of the witnesses [i]s a key issue in the case.
*719 (Emphasis in original.) Patterson v. State, 278 Ga.App. 168, 172, 628 S.E.2d 618 (2006). It follows that the trial court in this case erred by admitting Harvey's testimony. Considering the critical nature of Harvey's testimony and its potential to influence the jury, as well as the nature of the evidence in this case, we are unable to conclude "that it is highly probable that the error did not contribute to the jury's verdict." Johnson v. State, 238 Ga. 59, 61-62, 230 S.E.2d 869 (1976). See also McCartney v. State, supra, 262 Ga. at 159(1), 414 S.E.2d 227. Therefore, because Bly is entitled to a new trial on this basis, we reverse the judgment of the Court of Appeals.
Judgment reversed.
All the Justices concur.
NOTES
[1] Bly was additionally charged with disorderly conduct and driving on the wrong side of the road, but the jury acquitted him on these charges.
[2] In the half hour preceding the traffic stop, Officer Hawk had pulled over five motorists suspecting they were driving under the influence but none were.
[3] Hawk admitted at trial that his response could have caused "some confusion" in light of the fact that Bly had not been driving across the center line for some distance when the officer activated his blue lights.
[4] Because the veracity of Officers Brinkley and Eldredge was not placed in issue at trial, Harvey's testimony constituted improper bolstering. See Hunt v. State, 279 Ga. 3(4)(a), 608 S.E.2d 616 (2005); Woodard v. State, 269 Ga. 317(2), 496 S.E.2d 896 (1998).
[5] The transcript reveals the following exchange between the prosecutor and Harvey:
Q: And did you ever try to interview Mr. Bly about what happened that night?
A: Yes, sir.
Q: Did he explain to you what happened, as far as, what he thinks happened?
A: I went out to the jail to interview Mr. Bly at 5:55 a.m. I advised Mr. Bly of his rights under the Miranda decision and Mr. Bly advised me that he did not have anything to say, and that he wanted an attorney.
Q: He didn't say anything about any arm being put on his leg, or anything like that?
A: No, sir.
Q: He just didn't want to talk to you. He wanted an attorney?
A: Yes.
[6] As the Court of Appeals correctly pointed out, "this was an error of constitutional dimension in that the State was commenting improperly on Bly's constitutional right to silence. [Cit.]" Bly v. State, supra, 286 Ga.App. at 47(4), 648 S.E.2d 446(b).
[7] We note that the question to Harvey did not ask him to state the standard of conduct of a police officer during a traffic stop. Nor was it presented to Harvey in a form asking him to assume that Hawk's version of the events was correct and, if so, whether those actions comported with the standard of conduct of a police officer during a traffic stop.
[8] Although the State stresses that Harvey was a "disinterested observer," it was the jurors' role, as disinterested fact finders, to assess the evidence.
[9] The transcript establishes that Harvey never conducted any examination of the truck where the stabbing actually occurred. According to Harvey, he only photographed the site where the truck had been stopped, diagramed the location of blood spots on the ground there and ordered tests conducted on the wire snips.
[10] The only testimony from Harvey that even intimated any standard of conduct was adduced after he gave the challenged testimony. According to the transcript, Harvey on re-cross-examination answered the questions "wouldn't it be prudent for Mr. Hawk to wait until Mr. Brinkley arrived to assist him before he opened" the truck door and "was it appropriate for [Hawk] to pull a service revolver at that time" even if "there's pepper spray in the area and. . . . he's made no movement to remove himself from the truck"; and that on redirect Harvey answered affirmatively two questions posed by the prosecutor: "[t]hrough your training and experience have you seen situations in the past where officers were injured during situations like this" and "[h]ow about killed?" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2084082/ | 567 N.E.2d 1180 (1991)
Joseph STREET, Appellant/Defendant,
v.
STATE of Indiana, Appellee/Plaintiff.
No. 35A02-8907-CR-321.[1]
Court of Appeals of Indiana, Fifth District.
March 18, 1991.
Transfer Denied June 11, 1991.
*1181 Susan K. Carpenter, Public Defender, J. Michael Sauer, Deputy Public Defender, Office of Public Defender, Indianapolis, for appellant/defendant.
Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee/plaintiff.
BARTEAU, Judge.
Joseph Street appeals a jury verdict of guilty to one count of receiving stolen property[2] and one count of dealing in marijuana to a recipient under eighteen years of age.[3] The minor, Rusty Wright, was the prosecution's principal witness. The question presented is whether an unfair trial resulted from allowing Wright to testify that he had received marijuana from Street on one occasion before the act with which Street was charged. We hold that admission *1182 of the testimony was harmful error and reverse on both counts.
Where, as here, the verdict depends largely upon a jury's appraisal of witness credibility, the inquiry whether error was harmful entails a degree of weighing the evidence and judging credibility to determine whether the error influenced the verdict. Miller v. State (1982), Ind., 436 N.E.2d 1113. Accordingly, we supply an expanded review of the facts.
FACTS
Rusty Wright and Frank Denton burglarized a residence, taking, among other things, three televisions and two videocassette recorders. Two days later, two of the TVs and one of the VCRs were recovered by Deputy Farthing from the home of the defendant, Joseph Street. Farthing testified that he had focused his investigation of the burglary on Wright, who at that time was "listed as a runaway," Denton, and a third person named Matt Elzey; that Wright said he had taken some of the burgled items to Street's house; and that when questioned, Street acknowledged possession of the goods and readily produced them, explaining that Wright had told Street that he had been ejected by his father from the family home and needed a place to store some of his belongings temporarily. Farthing testified that he had pointed out to Street the owner's name engraved in one of the televisions, and Street had indicated that he had seen the engraving before Farthing mentioned it, thinking it "kind of funny." Finally, Deputy Farthing testified that Wright led him to a cache, hidden in an industrial area, of five small plastic bags of marijuana, which Farthing sent to the police laboratory for analysis.
Wright, sixteen at the time of the burglary, admitted his complicity in it. He testified that he had been staying at the trailer home of Denton and Elzey, where the stolen goods were secreted. He continued that Street had come to the trailer, looked at and expressed interest in the goods, and was informed by Wright and Denton that it was the proceeds of a burglary. Next, Wright testified that he, Denton and Street took two TVs and one VCR to Street's home, where he and Street went to the detached garage. There, Street opened the trunk of a car and allowed Wright to select two, one-ounce bags of marijuana from a grocery sack.
Wright and Denton then returned to the trailer, where they divided the marijuana into eight, quarter-ounce bags. Wright ended up with five of the bags, which he later revealed to Farthing.
Wright's story varied somewhat on cross-examination. He and Denton had gone to Street's, where they informed Street that they had some stolen goods at their trailer, and that the three then drove to the trailer. Street examined the merchandise and said he wanted it, but had no money. Wright suggested a swap of goods for marijuana, to which Street agreed. The three returned to Street's and completed the trade. No other adults were present.
After Wright's testimony, the prosecution called Denton, who also admitted his complicity in the burglary. He testified that at the trailer there was no discussion concerning disposing of the stolen goods, but that he had heard Wright say something about taking the items to Street. Denton agreed that the three of them took the goods to Street's, but stated that Street and Wright never left the house, and that he witnessed no transfer of marijuana. However, Denton testified that after leaving Street's, Wright gave him a bag of marijuana.
On cross-examination, Denton testified that Street had not been told that the goods were stolen, because he and Wright did not want to reveal their participation in the burglary. Also, there was no talk of trading the items for marijuana. Moreover, Wright and Elzey had been selling marijuana during the previous two weeks, and on at least three occasions those two had gone out in Elzey's car and returned with marijuana. Finally, Denton testified that there were other adults at Street's, and that he believed Wright had told Street *1183 something about Wright's having left home.
Next, the State called the police chemist, who testified that the five plastic bags contained marijuana totalling just under one ounce 25.1 grams. The State then rested.
Street called three friends, all of whom testified that they were visiting Street at his home when Wright appeared. All three testified that Wright said he wanted to store some belongings at Street's, and two testified that Wright mentioned having been told by his parents to leave their house. Janet Miller, who lives with Street, repeated the same exculpatory story.
At that point, Street took the stand. He reiterated the story, and denied Farthing's testimony about prior notice of the owner's name engraved in one of the TVs, testifying that he never saw the name until Farthing pointed it out.
Here, we pause to note that if the issue before us were solely an allegation of insufficient evidence, we would affirm. This case illustrates the wisdom of our well-settled procedure in sufficiency appeals of considering only the evidence favorable to the verdict and the inferences reasonably drawn therefrom, of refusing to reweigh the evidence or judge the credibility of witnesses, and affirming if there is substantial evidence of probative value. See, e.g., McClaskey v. State (1989), Ind., 540 N.E.2d 41.
The challenged evidence entered during direct examination of Wright. The prosecutor wanted to question him about prior transactions with Street for marijuana. Street objected on the grounds that the testimony was impermissible character evidence. The trial judge sustained, but the prosecutor persisted. After argument, the trial judge reversed himself and overruled the objection. Wright was allowed to testify that a week and a half before the charged crime, he had traded a stereo, his personal property, to Street for one ounce of marijuana. When Street later testified, he admitted receipt of Wright's stereo, but claimed that the exchange was a purchase for $70.00.
In addition to the initial objection, Street preserved the issue for appeal with a continuing objection and a motion for mistrial. In arguing for admissibility, the prosecutor gave two reasons: first, that the testimony would reveal a common scheme or plan, "a practice on the part of the defendant to deal with this particular witness in exchanging marijuana for personal property"; and second, that later testimony would show recovery of more than two ounces of marijuana, and because Wright had testified to receiving only two ounces for the stolen goods, the State needed the evidence of the first transaction to explain the source of the marijuana in excess of two ounces. The trial court decided to admit the testimony, based on the similarity of twice trading property for marijuana, the proximity in time, and the need to explain the excess weight, without stressing any one factor. At that point, the chemist had not yet testified that less than one ounce had been recovered.
DISCUSSION
This case focuses on the admissibility in a criminal trial of evidence that a defendant committed a crime with which he has not been charged.[4] Evidence of such an "extrinsic offense"[5] is "generally inadmissible if `its sole relevance is to show that the defendant's general character is bad and that he therefore has a tendency to commit crimes.'" Penley v. State (1987), Ind., 506 N.E.2d 806, 808 (quoting Schnee v. State (1970), 254 Ind. 661, 662, 262 N.E.2d 186, 187). Restated, the rule is "evidence which can prove or tend to prove that an accused engaged in criminal activity similar to the charged crime is generally *1184 inadmissible to prove an accused's propensity to commit crime or an accused's guilt of the charged crime." Malone v. State (1982), Ind., 441 N.E.2d 1339, 1345.
The general rule addresses concern that a jury will convict solely on an inference of bad character flowing from evidence of the defendant's extrinsic offense, which would violate our jurisprudential tenet against punishing defendants for what they are, rather than for what they did. Penley, supra at 808. Two additional reasons support a bar against admission of extrinsic offense evidence: (1) to relieve a defendant of the need to respond to unexpected accusations, and (2) to decrease the chances that a jury will become confused by collateral issues or have its attention diverted from the charged crimes. Gibbs v. State (1989), Ind., 538 N.E.2d 937, 939.
However, extrinsic offense evidence is not per se inadmissible. Penley explains that "evidence of uncharged misconduct may often be admissible because it promotes a legitimate inference about some issue in the cause, notwithstanding its incidental revelation about the defendant's character." Id. at 808. A treatise on Indiana law identifies nine exceptions to the general rule, allowing evidence of extrinsic offenses to promote an inference about the defendant's intent, motive, malice, knowledge, sanity, capacity, identity, common scheme or plan, or depraved sexual instinct. 12 R. Miller, Indiana Evidence, §§ 404.208-.216.[6] When stating the general rule, our supreme court frequently names five exceptions: intent, motive, purpose, identity, and common scheme or plan. See, e.g., Williams v. State (1986), Ind., 489 N.E.2d 53, 55; Foust v. State (1981), Ind., 428 N.E.2d 776, 778.
In the case before us, the prosecutor argued for admitting Wright's testimony concerning an extrinsic marijuana transaction with Street under "common scheme or plan" or to show "identity." The trial judge admitted the testimony under "common extent plan and scheme."[7]
Indiana cases divide the common plan or scheme exception into two branches, allowing evidence of extrinsic offenses to show (1) "a preconceived plan that includes the charged crime" and (2) "to prove intent, motive, purpose, or identity by showing the defendant committed other offenses with a similar modus operandi." Gibbs, supra, at 939 (citing Malone and Penley).
Concerning the latter branch, Gibbs points out two different standards for admissibility. To use extrinsic offense evidence to prove identity, the charged crime and the extrinsic offense must share enough unusual, distinctive characteristics to create a "signature" of the perpetrator. But, extrinsic offense evidence introduced to show state of mind, that is, intent, motive, or purpose, need not be so closely similar to the charged offense to become admissible.
Concerning the former branch, Gibbs sets out a third standard for admissibility. Extrinsic offense evidence that tends to prove the existence of a preconceived plan is admissible only if the charged crime and the extrinsic crime are "`so related in character, time and place of commission as to establish some plan which embraced both *1185 the prior ... criminal activity and the charged crime.'" Id. (quoting Malone, supra at 1347).
In summary, evidence of extrinsic offense is admissible only if it "promotes a legitimate inference about some issue," Penley, supra, and such inference tends to prove the defendant's state of mind, identity as the perpetrator of a signature crime, or formulation of a preconceived plan. Unless the extrinsic offense evidence is probative of some element of the charged crime, its admission should be seen as raising the forbidden inference of "an accused's propensity to commit crime or ... guilt of the charged crime." Malone, supra.
Having outlined the law, we apply it to this case. We note first that on the charge of receiving stolen property, the only issue was whether Street knew the goods were stolen. Because the extrinsic offense evidence did not concern a prior trade of marijuana for stolen property, we accord it no probative value here. Wright's testimony of the first transaction proves nothing about whether Street knew the subject property of the second transaction was stolen. See Johnson v. State (1982), Ind. App., 441 N.E.2d 1015 (gravamen of receiving stolen property is defendant's guilty knowledge; possession of stolen goods undisputed, but evidence insufficient to prove guilty knowledge). Thus, the extrinsic offense evidence was inadmissible on the charge of receiving stolen property because it failed to raise an inference about an issue.
As to whether the extrinsic offense testimony was admissible on the charge of dealing marijuana to a minor, we see no relevance between the extrinsic offense testimony and Street's state of mind. The statute for dealing in marijuana to a minor requires a knowing or intentional action, I.C. XX-XX-X-XX(b)(1)(A), so arguably the extrinsic offense tends to prove that Street dealt marijuana knowingly and intentionally. However, the dispute at trial was not whether Street dealt marijuana knowingly or intentionally, but whether he dealt marijuana at all. Street did not advance a defense of lack of intent or knowledge. Therefore, to admit the extrinsic offense testimony to prove his state of mind was to admit evidence on a point not at issue. Cf. Sizemore v. State (1985), Ind., 480 N.E.2d 215. To admit extrinsic offense evidence to show intent where the defendant's intent is not genuinely disputed would allow the exception to overwhelm the general rule.
Similarly, we see no relevance between the extrinsic offense testimony and the identity exception. Again, the dispute here was whether the crime occurred, not, as in Penley, the identity of the perpetrator of a crime, the commission of which was uncontested. Because identity was not at issue here, and because the extrinsic offense was not so strikingly similar to the charged crime as to constitute the signature of the defendant, the extrinsic offense testimony was inadmissible under the identity exception.
Lastly, we examine admissibility under preconceived plan. We recall the standard for admission here: the charged crime and the extrinsic offense must be "`so related in character, time, and place of commission as to establish some plan which embraced both... .'" Gibbs, supra. In the case before us, the extrinsic offense evidence showed the defendant had committed the charged offense of dealing marijuana to a minor twice. In the sense that the two offenses were repetitive, close in time and place, and involved the same two parties, they could be said to satisfy the standard. However, we think mere repetition is insufficient to establish a preconceived plan. We find the following analysis persuasive:
The inference from `pattern' by itself is exactly the forbidden inference that one who violated the drug laws on one occasion must have violated them on the occasion charged in the indictment. Unless something more than a pattern and temporal proximity is required, the fundamental rule is gone.
United States v. Beasley (7th Cir.1987), 809 F.2d 1273, 1278 (emphasis in original).
The "something more" in Beasley has been described by our supreme court as a *1186 requirement that the extrinsic offense be "tangibly connected" to the charged crime. Clark v. State (1989), Ind., 536 N.E.2d 493, 495. In Clark, Justice Shepard gave two examples of the necessary tangible connection, both from other jurisdictions: a case where evidence of an earlier robbery was admissible in the trial of a second robbery because the second victim's name had been procured from the first victim; and, a case admitting testimony that the defendant had burglarized a garage to obtain a cutting torch, where the defendant was on trial for burglarizing a post office using the torch. Although Clark cites no Indiana decisions, the cases given reveal its notion of preconceived plan: "[w]ithout some nexus, the evidence would wrongly impugn the defendant's character without being probative of a material fact." Id. at 495.
On the basis of those examples, we would hold that the required nexus is absent here. The evidence of the extrinsic offense merely repeated the charged crime, without establishing any nexus or compelling interrelationship. However, Clark appears to approve a rule that in drug cases the required nexus may be shown through evidence of criminal acts linked only by repetition, provided there is proximity in time. Cf. Beasley, supra (requiring more than repetition and temporal proximity). In Clark, the defendant was accused of possessing cocaine and heroin in 1985. The prosecution presented evidence that the defendant had been convicted of the same two offenses in 1974, and of conspiring to distribute the two drugs in 1980. The supreme court rejected the State's argument on appeal that the extrinsic offenses composed a preconceived plan to violate the drug laws, holding them too remote in time.
Clark specifically noted the holding in Sweet v. State (1986), Ind., 498 N.E.2d 924, over one dissent without opinion, that evidence of extrinsic drug transactions was admissible as showing a "common scheme and plan of conducting a drug dealing business for profit," id. at 928, where the extrinsic offenses occurred nine months before the charged crime and all transpired between the appellant and the same informant.[8] Therefore, we find Street's reliance on Clark misplaced, because the extrinsic offense here occurred well within the Sweet nine-month time frame, and similarly transpired between the defendant and one informant. See also Bombe v. State (1988), Ind., 525 N.E.2d 336 (evidence of other drug transactions four to five months prior admissible as showing scheme or plan of selling drugs) (two Justices dissenting without opinion); Bartruff v. State (1988), Ind. App., 528 N.E.2d 110, trans. denied (citing Sweet).
Street also relies on Riley v. State (1986), Ind., 489 N.E.2d 58, because it held reversible error occurred when an informant testified to prior drug sales and use with the defendant, who had been charged with one count. Riley provides only little help to Street. The extrinsic offense testimony there had been barred by a motion in limine, yet the prosecutor persistently tried to circumvent the trial judge's ruling. The basis of reversal was that the prosecutor's conduct had created an evidentiary harpoon. Such a basis is pointedly absent here. On the other hand, we cannot ignore the similarity between Riley and the instant case. In both, conviction ensued from the testimony of an informant who testified to having engaged in drug activity with the defendant. The Riley court wrote that the prosecutor had done considerable damage by asking the informant why he had gone to the defendant to acquire more cocaine and where he had made prior drug purchases. Significantly, the court's dicta in Riley regarded the informant's testimony that on several occasions he had purchased from the defendant a white powder that affected him similarly and cost the same as insufficient to establish a common scheme under the identity/modus operandi exception. However, Sweet appears either to extinguish sub silentio that idea, or *1187 to approve admission of extrinsic drug transactions under preconceived plan.
Despite the similarity between this case and Sweet, we hold the extrinsic offense inadmissible because we see no preconceived plan created by the defendant. The only plan apparent to us from the State's evidence belonged to Wright, whose testimony indicated that he engineered a scheme to trade home entertainment equipment, stolen or otherwise, for marijuana. Wright's testimony revealed no plan on Street's part. Wright testified that in the first transaction, he traded his stereo to Street for marijuana, but in the second transaction Street offered to buy the goods, and marijuana became involved only at Wright's suggestion. Thus, evidence of the first transaction raised the forbidden inference of propensity to commit crime or guilt of the charged crime without simultaneously raising a legitimate inference. The trial judge was correct in his initial decision to prohibit the extrinsic offense testimony.
If we were to hold the extrinsic offense testimony admissible as evidencing a preconceived plan to deal in marijuana, we would need to determine whether the probative value of the testimony outweighed its prejudicial effect. Montgomery v. State (1980), 274 Ind. 544, 412 N.E.2d 793, reh'g denied. Notwithstanding that the State's brief did not respond to Street's argument on this point, we see little probative value in the extrinsic offense testimony. The fact that Street may have traded marijuana for a stereo one day does not tend to prove that he committed a similar act a week and a half later. The testimony did show that Wright and Street knew each other before the day of the charged crimes. However, that fact could have been brought forth without the prejudice inherent in the testimony of an earlier illicit trade.
Moreover, our restrictive view of preconceived plan poses no burden to the prosecution. As pointed out in Gibbs, supra at 941, the State can remove any barrier to admission of extrinsic offense evidence by charging the defendant with those crimes.
Our inquiry now becomes whether the error mandates reversal. The State's argument on the question resembles a sufficiency of the evidence approach, repeating the evidence favorable to the verdict and reminding us that a conviction may be had upon the testimony of a single witness. However, the proper inquiry is not whether the evidence was sufficient, but whether the error was harmful and yielded a verdict "substantially swayed" by admission of the extrinsic offense testimony. Stwalley v. State (1989), Ind., 534 N.E.2d 229, 232, reh'g denied. See also Coates v. State (1985), Ind. App., 487 N.E.2d 167.
[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Miller v. State (1982), Ind., 436 N.E.2d 1113, 1114 (emphasis and citation deleted).
We cannot say with fair assurance that the verdict was not substantially swayed by the error. This case differs from Sweet and Bombe, where the extrinsic offense witnesses were police officers and informants operating under police supervision. Here, the witness was a burglar and the activities to which he testified were not carried out subject to the scrutiny of the police. His credibility stood to be bolstered by what amounted to an opportunity to repeat his story. See Lenover v. State (1990), Ind. App., 550 N.E.2d 1328, reh'g denied (prejudice compounded where only one witness testifies to extrinsic offense); see also Johnson v. State (1989), Ind. App., 544 N.E.2d 164, trans. denied.
To convict, the jury must have believed Wright. Allowing him to testify about an earlier exchange undoubtedly increased his credibility. Although we cannot say that *1188 the jury would have disbelieved Wright absent the extrinsic offense testimony, we are certain that the testimony enhanced his version of events and made conviction more likely. At a minimum, we strongly doubt that admission of the testimony did not substantially influence the result. Accordingly, Street is entitled to a retrial untainted by testimony of an extrinsic offense.
REVERSED AND REMANDED FOR RETRIAL.
ROBERTSON and SHIELDS, JJ., concur.
NOTES
[1] This case was reassigned to this office on January 2, 1991.
[2] Ind. Code 35-43-4-2(b).
[3] IC XX-XX-X-XX(b)(1)(A).
[4] In addition to the evidentiary issue, Street's brief urges reversal on the basis of a defect in the charging information. Because we reverse on the evidentiary question, we need not address that defect.
[5] Our supreme court adopted this term for uncharged crimes or misconduct over formulations such as "unrelated criminal activity," "prior bad acts," and "similar crime." Gibbs v. State (1989), Ind., 538 N.E.2d 937, 939 n. 1. We follow suit.
[6] Miller also discusses the "res gestae" theory of admissibility of extrinsic offense evidence. Res gestae means evidence of "happenings near the charged crime in time and place, which ... `complete the story of the crime on trial by proving its immediate context.'" Miller, supra, § 404.206 at 259 (quoting McCormick, Evidence § 190, at 448 (2d ed. 1972)). In precise use, res gestae is not an exception to the general rule, because such evidence is "offered not to show that the defendant has a propensity to act in criminal ways, but to prove and explain the occurrence of a specific, charged crime." Miller, supra, § 404.206 at 261. See, e.g., Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843 (evidence that defendant stole automobile used as getaway car in robbery).
[7] When arguing for admissibility of the extrinsic offense, the State asserted, in light of Wright's testimony that he received exactly two ounces of marijuana for the stolen goods, that the testimony was necessary because the State would show recovery of more than two ounces. However, the State showed less than one ounce. Therefore, res gestae provides no theory under which to admit the challenged testimony. Accordingly, we analyze admissibility solely under common scheme or plan.
[8] The court in Sweet did not specify which branch of common scheme or plan made the testimony admissible. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/854082/ | 698 N.E.2d 1132 (1998)
Debra Denise BROWN, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 45S00-9212-PD-939.
Supreme Court of Indiana.
July 17, 1998.
Rehearing Denied November 20, 1998.
*1134 Susan K. Carpenter, Public Defender, Indianapolis, Ken Murray, Columbus, OH, Janet S. Dowling, Evans, Dowling & Youngcourt, P.C., Indianapolis, for Appellant.
Jeffrey A. Modisett, Attorney General, Christopher L. LaFuse, Deputy Attorney General, Indianapolis, for Appellee.
*1133 SULLIVAN, Justice.
Petitioner Debra Denise Brown appeals the denial of post-conviction relief with respect *1135 to her convictions for Murder[1] and Attempted Murder,[2] and her sentence of death.[3] We earlier affirmed these convictions and this sentence on direct appeal. Brown v. State, 577 N.E.2d 221 (Ind.1991), reh'g denied, 583 N.E.2d 125, cert. denied, 506 U.S. 833, 113 S. Ct. 101, 121 L. Ed. 2d 61 (1992). We now affirm the denial of post-conviction relief.
Background
Debra Denise Brown and her companion, one Alton Coleman, were convicted and sentenced to death in separate proceedings for stomping a seven-year old girl to death and attempting to choke a nine-year old girl to death with a belt after sexually assaulting the latter. These crimes were part of a crime spree which also took Brown and Coleman to Ohio, Michigan and Illinois. About a month after the Indiana crimes were committed, Brown was apprehended in Illinois and turned over to the FBI, which had been actively engaged in the investigation.
Our discussion infra and our opinions on Brown's and Coleman's direct appeals contain additional details of their crimes, trials, and claims for relief. See Brown, 577 N.E.2d at 224-25; Coleman v. State, 558 N.E.2d 1059, 1060-61 (Ind.1990), cert. denied, 501 U.S. 1259, 111 S. Ct. 2912, 115 L. Ed. 2d 1075 (1991).
Discussion
I
Brown contends that she is entitled to post-conviction relief because the State violated its obligation to disclose material exculpatory evidence by failing to disclose prior to her trial certain psychological profiles and related materials compiled by the FBI. As noted in Background, supra, Brown and Coleman had been interstate fugitives. As such, the FBI prepared a psychological profile and related material on Brown to assist in her capture. During preparation for Brown's trial, Indiana authorities had in their possession a substantial volume of FBI materials. When the FBI sought to have these materials returned, Brown's trial counsel protested, contending that he had not yet had time to review all of the materials. Upon a representation from the State that the files contained no exculpatory material, the trial judge permitted the materials to be returned to the FBI.
In preparation for post-conviction proceedings, Brown obtained four documents in the possession of the FBI which she contends are exculpatory. Brown is, of course, correct that the State has an affirmative duty to disclose evidence favorable to a criminal defendant. Kyles v. Whitley, 514 U.S. 419, 432, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (citing Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). Brown raises several interesting questions as to whether the State had a pre-trial obligation to disclose these four documents. However, an allegation of a Brady violation requires a demonstration that the undisclosed favorable evidence "could be reasonably taken to put the whole case in such a different light as to undermine confidence" in the trial court's judgment. Kyles, 514 U.S. at 435, 115 S. Ct. 1555. We elect to proceed to that inquiry first. Because we find that these four documents could not be reasonably taken to put the whole case in such a different light as to undermine confidence in the trial court's judgment, we hold that Brown is not entitled to post-conviction relief on this contention.[4]
*1136 A
We note first that while Brown seeks to have both her convictions and her sentence reversed on the basis of this claim, she makes no specific argument as to how these four documents undermine confidence in the jury's guilty verdicts. Rather, her specific claims are that these documents contain important evidence of her psychological domination and control by Coleman, mitigating circumstances which should have been considered by the jury during the penalty phase.
Certainly the subject matter of these four documents comprise mitigating circumstances appropriate for consideration in a death penalty case. Our death penalty statute specifically itemizes the domination and control of another person as a mitigating circumstance.[5] Acting under the influence of an extreme emotional disturbance is another statutory mitigating circumstance.[6] And the mental health of the defendant is frequently considered as a mitigating circumstance under the "catch-all" mitigator.[7] These four documents implicate each of these circumstances.
The first FBI document, Brown's Exhibit 31, states in pertinent part:
Coleman has a violent temper, and when he is upset he is uncontrollable. * * * Ever since Coleman's mother died of cancer, Coleman seems to have gone off his rocker. * * * Debra Denise Brown has lived with Coleman and his blind grandmother for the past two years. Brown has lost about 35 pounds during this time. She has been virtually a prisoner in the house. If she left without Coleman, he would beat her. During [an] interview with FBI agents, Brown was very docile. She admitted that scars and scratches on her face were from Coleman. It is believed that she is completely under the control of Coleman.
(R. at 1894-96.)[8] The second and third FBI documents, Brown's Exhibits 32 and 33, contain essentially the same information. (R. at 1898; 1902.) The fourth FBI document, Brown's Exhibit 36, is an extensive report prepared by the FBI regarding her background, including an interview with Lottie Mae Brown, Brown's mother. The report indicates that:
1. Brown's father had severe mental problems, drank to excess, and physically abused family members including the children.
2. Brown had experienced a drug overdose which required hospitalization in 1980 and may have been using drugs regularly.
3. Brown's personality changed drastically after she met Coleman.
4. Brown moved in with Coleman and would not talk to her family, but would look to Coleman to answer for her.
5. Brown's mother felt that Coleman completely controlled Brown and that she would do whatever Coleman asked her to do; Brown's mother also believed that Coleman was beating Brown and using her as a prostitute.
6. Brown's mother had seen Brown with her face "all beaten up" during the time Brown was living with Coleman.
(R. at 1931.)
B
From the very outset of the penalty phase, defense counsel made it clear that his principal *1137 argument would be that Brown should not be sentenced to death because she had been acting "under the substantial domination of Alton Coleman." (T.R. at 3344.) In a powerful fourteen page opening statement to the jury at the beginning of the penalty phase, defense counsel spent thirteen pages of it emphasizing Coleman's control over Brown. (T.R. at 3385-3400.) Specific testimony to this effect was presented by defense counsel throughout the penalty phase.
Counsel proceeded to make his argument primarily through expert testimony. First, a Dr. Batacan, a psychiatrist who had examined Coleman, testified as to Coleman's manipulative personality. Then a Dr. Periolet, another psychiatrist who had examined Coleman, testified that one characteristic of Coleman's sociopathic personality was that he would assess who he could control. Counsel then called a Beverly Perkins, Coleman's ex-wife, who testified that Coleman used physical violence and threats of harm to her family whenever she tried to leave their apartment to do something by herself.
Next counsel called a Dr. Kelly, a psychiatrist, who testified as to the results of his examination of Brown. Dr. Kelly had examined Brown twice and also discussed the results of his examination with a psychologist, Dr. Rogers, who had independently examined her. In compiling the results of his examination, Dr. Kelly also examined additional hospital records, school records and the report of another psychologist, Dr. Suran, concerning Brown. Dr. Kelly testified as to Brown's difficult upbringing, based on his conversation with members of her family, including her mother and sister. He discussed her poor school record, a serious auto accident in which she had been involved, and her record of truancy from school. He noted that her school records showed an IQ at the age of 12 of 59 and a current IQ of 74.
In Dr. Kelly's expert opinion, Brown suffered from the mental illness of dependent personality disorder. Among the causes of the dependent personality disorder identified by Dr. Kelly were her limited intelligence and difficult family upbringing. Dr. Kelly also gave his expert opinion that Brown was under the domination and control of Coleman at the time of the crime and that she was a good candidate for rehabilitation.
Defense counsel also called a Dr. Suran, a clinical psychologist, who had conducted a diagnostic psychological evaluation of Brown, including a social history. Dr. Suran reported that Brown scored 75 on the Wechsler IQ test and that she functioned as mildly retarded. His examination showed her to have "a very depraved background" and that she never evolved to the level of emotional development consistent with her age. More specifically, in his interview with her dealing with her family and background, he learned that she had been the subject of "frequent and repeated physical abuse, sexual abuse, and a very strong sense of rejection and abandonment." Dr. Suran found Brown to be the victim of severe environmental deprivation.
It was Dr. Suran's expert opinion that Brown suffered from borderline retardation, depression, and had a dependent personality or passive dependent personality. Dr. Suran also made reference to Brown's childhood abuse, collected school and medical records, and noted her childhood mental retardation diagnosis.
Two statements from Dr. Suran's testimony bear citation here:
[I]ndependent of her relationship with Alton Coleman, I really find no evidence in Debra's personality or functioning of tendencies to commit the kinds of offenses for which she has been convicted, and it is my conclusion that it is only in and through her relationship with Alton Coleman that she has had any involvement in these crimes.
(T.R. at 3746-47). Further:
I do not find in Debra Brown the kind of impulse type of hostile, aggressive, resolved or unresolved, instincts and impulses that is capable of committing the kinds of offenses for which she has been convicted. What I do find is a pathological degree of dependent behavior on her part that through association with another agent that was capable and that did have such hostile impulses that she would act out those impulses dependently serving the *1138 other agent, in this case, the agent being Alton Coleman.
(T.R. at 3757.)
The trial court gave reasonably extensive treatment to this evidence in its sentencing order:
There is a large quantity of evidence from the reports and testimony of a clinical psychologist who examined defendant Brown on April 18, 1986 and testified at trial and the report of a psychiatrist who examined Deborah [sic] Brown on August 1 and August 8, 1984, and testified at trial and other psychological reports that the Defendant was under the substantial domination of her co-defendant at the time these offenses were committed. The Court has already detailed the Defendant's mental state at the time of the commission of these offenses. It is agreed by the experts that the Defendant was a young woman with borderline intellectual functioning with a dependent personality disorder. It is further agreed that she had demonstrated an inability to function independently and to assume responsibility for major areas of her life. It is evident from her interview with Dr. Suran that Alton Coleman provided her with attention and support and that he is someone that this defendant became devoted to. Further evidence was presented of the dominant, manipulative personality of Alton Coleman. Truly he is such a person and appears to be totally without conscience. The affect of such a person on one with Deborah [sic] Brown's inadequacies is also obvious. The central question to this Court is whether or not Deborah [sic] Brown was so under the domination of Alton Coleman because of her own inadequacies and personality disorders that she could not make a rational choice as to her own participation in repeated violent criminal acts, accompanied by repeated efforts to deceive intended victims and others and to evade prosecution. Defendant Brown was not and is not insane nor mentally ill. She was not under the influence of alcohol or drugs. In the opinion of this Court she made a choice to follow Coleman and to prove herself to him. She stated to Dr. Suran "I know I have to suffer for what I did, but I'll give my life for him. I'll fight for my husband's (Coleman) life. I'll go down for him. I'll put my life on the roll for him ... I loved him so much, I told him that I would go down with him, and I would give up my life for him." The Court would agree that defendant Brown reached her decision making processes in this crime spree with limited intellectual tools. But the Defendant made a rational decision to become involved with Coleman no matter what the consequences, including these horrible crimes committed against innocent children and many others including at least two other vicious murders. The domination over this defendant by Alton Coleman is not sufficient to excuse her criminal conduct.
(T.R. at 355-57.)
It is true that at the post-conviction hearing, both trial counsel and the experts who testified at trial indicated that they would have been able to make their case that Brown was under Coleman's domination and control more persuasively had they known what was in the four FBI documents. The post conviction court disagreed, finding that these materials did not add anything to the evidence which was presented to the jury. We find no basis to disagree with this conclusion.[9] While the FBI reports contained information relevant to mitigating circumstances appropriate for consideration in the penalty phase of Brown's trial, trial counsel in fact argued those mitigating circumstances vigorously with the help of expert testimony and the trial court clearly took them into account in pronouncing sentence.
C
In a related argument, Brown contends that the FBI wrongfully denied her access to a substantial quantity of documents *1139 concerning her case.[10] She argues that this denial has prevented her from fully and adequately investigating, preparing and presenting her claim for post-conviction relief. She further asserts that as a result certain federal and state constitutional rights have been violated.
Brown has not presented us with any basis for concluding that her ability to assert entitlement to post-conviction relief has been limited in any material way or that any of her constitutional rights have been violated as a result. Brown's claim appears to be that there might be additional information in the FBI files of the character discussed in part I-A, supra, i.e., information showing that she was under the domination and control of Coleman. But as we have already discussed, extensive evidence in support of this mitigating circumstance was presented to the jury and the court during the guilt and penalty phases of Brown's trial. Nothing in Brown's argument gives us any basis for concluding that any undisclosed information "could be reasonably taken to put the whole case in such a different light as to undermine confidence" in the trial court's judgment, Kyles, 514 U.S. at 435, 115 S. Ct. 1555.
Brown's principal argument here seems to be along the lines that there might have been additional evidence in the FBI files supporting her claim of domination and control by Coleman. But she also suggests entitlement to the FBI files "to learn what, if any, additional exculpatory information is hidden in the FBI files and to pursue whatever leads might be uncovered." Br. of Appellant at 121. We have recently observed that the post-conviction relief process "is not a device for investigating possible claims, but a means for vindicating actual claims" and that "[t]here is no postconviction right to `fish' through official files for belated grounds of attack on the judgment or to confirm mere speculation or hope that a basis for collateral relief may exist." Roche v. State, 690 N.E.2d 1115, 1132 (Ind.1997), reh'g denied (quoting People v. Gonzalez, 51 Cal. 3d 1179, 275 Cal. Rptr. 729, 800 P.2d 1159, 1206 (1990)). To the extent that Brown does not contend that there is any specific information in the FBI files that supports her claims to post-conviction relief, no rule of constitutional law or state procedure mandates unfettered access to the FBI files in the hopes of uncovering such. See Roche, 690 N.E.2d at 1133 (citing State v. Marshall, 148 N.J. 89, 690 A.2d 1 (1997)).
II
Brown contends that she was denied the effective assistance of counsel to which she was entitled at the penalty phase of her trial because her lawyers failed fully to investigate, develop and present evidence at the penalty phase of her trial. We analyze such claims according to the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See e.g., Canaan v. State, 683 N.E.2d 227, 229 (Ind.1997), reh'g denied, cert. denied, ___ U.S. ___, 118 S. Ct. 2064, 141 L. Ed. 2d 141 (1998); Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.1994). First, we require the defendant or petitioner to show that, in light of all the circumstances, the identified acts or wrongs of counsel were outside the range of professionally competent assistance. Id. This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Id. (citing Turner v. State, 580 N.E.2d 665, 668 (Ind.1991)). "Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do not necessarily amount to ineffective assistance of counsel unless, taken as a whole, the defense was inadequate." Davis v. State, 675 N.E.2d 1097, 1100 (Ind. 1996) (quoting Terry v. State, 465 N.E.2d 1085, 1089 (Ind.1984)). Second, we require the defendant or petitioner to show adverse prejudice as a result of the deficient performance. This showing is made by demonstrating that counsel's performance was so prejudicial that it deprived defendant or petitioner *1140 of a fair trial. Lowery, 640 N.E.2d at 1041. See Games v. State, 690 N.E.2d 211, 213 (Ind.1997). We will conclude that a fair trial has been denied when the conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unreliable. Lowery, 640 N.E.2d at 1041 (citing Best v. State, 566 N.E.2d 1027, 1031 (Ind.1991)).
A
Brown's claim of failure fully to investigate, develop and present penalty phase evidence focuses on four areas: (1) her family and upbringing; (2) her intellectual and educational deficits; (3) her absence of any criminal record or history of violence, and her generally positive character, prior to meeting Alton Coleman; and (4) she was suffering from Battered Women's Syndrome.
At the post-conviction hearing, Brown presented extensive evidence in each of these areas.[11] Nevertheless, the post-conviction court found that she had not been denied the effective assistance of counsel in this regard because prejudice had not been shown. The post-conviction court concluded that given the seriousness of the crimes for which Brown had been convicted, the jury was unlikely to reach a different result even with this evidence.
Without reaching the issue of prejudice, we agree with the post-conviction court's conclusion because we do not find counsel's performance to have been deficient. As discussed in part I, supra, counsel's strategy at the penalty phase was to argue that Brown should not be sentenced to death because she had been acting "under the substantial domination of Alton Coleman" when she committed the crimes for which she had been convicted. In part I-B, supra, we detailed the testimony elicited by defense counsel at the penalty phase. That recitation demonstrates that counsel did present to the jury at the penalty phase of Brown's trial evidence of her difficult family upbringing, her limited educational and intellectual abilities, her positive record of behavior prior to meeting Alton Coleman and, if not that she was explicitly the victim of Battered Women's Syndrome, that she functionally suffered from it at Coleman's hands.[12] It appears to us that Brown's quarrel with her trial counsel is over the amount of evidence presented in these three areas at trial, not whether any investigation, development or presentation took place.[13]
On this record, we cannot say that counsel's performance was deficient in concentrating his penalty phase argument on Brown's relationship with Coleman. To be more specific, we cannot say that it was deficient performance for counsel to marshal his witnesses to try to present as strong a case as possible that Brown committed the crimes for which she had been convicted under the domination and control of Coleman and that her submission to his domination and control was accounted for by her difficult upbringing, her limited IQ and her mental illness of dependent personality disorder. Brown has not demonstrated deficient performance by her trial counsel in this regard.
B
In a related claim, Brown contends that the post-conviction court improperly excluded evidence relevant to her claim that trial counsel was ineffective for failing fully to investigate, develop and present mitigating evidence. She argues that the exclusion of this evidence denied her a full and fair post-conviction hearing. According to Brown, the excluded evidence consisted of the following four items:
*1141 1. The testimony of a Mr. See, a Cleveland-based executive of an offender re-entry program with experience as a witness concerning mitigating circumstances, which was "offered to show the social, racial and cultural environment in which Brown was raised and to demonstrate how the individuals and social service institutions charged with [Brown's] care defaulted on their responsibilities." Br. of Appellant at 93. While See's testimony is of record, the post-conviction court ultimately excluded it. (R. at 1637-38.)
2. Certain unspecified affidavits relevant to the claim of failure to investigate and discover mitigating evidence. Br. of Appellant at 98. These affidavits appear to be of the same nature as those discussed in part III-A of our recent opinion in Roche, 690 N.E.2d at 1131. They are included in the record but were "not admitted." (R. at 98.)
3. The post-conviction testimony of Dr. Suran to "the effect of the recently discovered mitigating evidence on the conclusions he described at trial." Br. of Appellant at 99. The record contains a filing styled "Proffer of Testimony of Bernard Suran, Ph.D.," summarizing the testimony he would have given. (R. at 506-08.)
4. A "social history report" prepared by a Mr. Coconis, a social worker with experience as an investigator of mitigating circumstances, which was to have been used as the basis of Dr. Suran's testimony. Br. of Appellant at 101. Although the State's objection to the introduction of this report was sustained, a copy is included in the record. (R. at 1908-17.)
5. The post-conviction testimony of Brown's trial counsel, Mr. Toomey, as to whether he thought and felt he gave Brown effective representation at trial. Br. of Appellant at 102. The post-conviction court sustained the State's objection on grounds that the question of counsel's effectiveness was for the court to decide. (R. at 1430.)
We find no error with respect to item (2), the exclusion of the affidavits. See Roche, 690 N.E.2d at 1131 (affidavits prepared for similar purpose excluded). We also find no error with respect to item (5), the prohibition on counsel's testifying as to his own ineffectiveness. Compare Ind.Evidence Rule 704(a) (testimony is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact) and Evid.R. 704(b) (witnesses may not testify to opinions concerning legal conclusions).
Items (1), (3) and (4) all relate to Brown's family and upbringing, her intellectual and emotional development, her lack of criminal history before meeting Alton Coleman, and her relationship with Coleman. The post-conviction court generally excluded this information on grounds that, even if it had been presented to the jury during the penalty phase of Brown's trial, it "would not have made a difference to the jury's recommendation or the trial court's sentence."[14] (R. at 778.) As such, the post-conviction court concluded, the prejudice prong of the test for ineffective assistance of counsel had not been satisfied.
We are not as willing as the post-conviction court to imply that there are circumstances in which no quantum of evidence would be sufficient to change a jury's recommendation or a trial court's sentence. But, as noted at the outset of part II-A, supra, we find it unnecessary to analyze this issue in terms of prejudice. Our purpose here is not to replay Brown's trial; it is to determine whether she was denied the effective assistance of counsel to which she was entitled. We concluded supra that counsel did not render deficient performance with respect to the presentation of mitigating circumstances. The fact, without more, that the additional evidence excluded by the post-conviction court could have been presented at trial does not affect this conclusion.
*1142 III
Brown contends that she was denied the effective assistance of counsel to which she was entitled when counsel failed to present evidence of Brown's borderline mental retardation in support of his contention that Brown's confession had been involuntary. Noting that this Court gave extensive consideration to the voluntariness of Brown's confession in her direct appeal, Brown, 577 N.E.2d at 229, the State argues that the issue is not available for relitigation here. See Ind.Post-Conviction Rule 1(8); Canaan, 683 N.E.2d at 235; Lamb v. State, 511 N.E.2d 444, 447 (Ind.1987); Ingram v. State, 508 N.E.2d 805, 807 (Ind.1987).
We agree with the State's argument that the doctrine of res judicata bars consideration of Brown's argument here. Brown's argument is essentially this: (1) her borderline retardation and mental illness (severe passive-dependent personality disorder) impacted her ability to make a knowing, voluntary and intelligent waiver of her constitutional rights in giving her confession; (2) her lawyer was unaware of case law that holds that evidence of mental retardation is relevant and material to determining whether or not a defendant knowingly and voluntarily waived his or her rights; and (3) counsel's failure to know the law effectively precluded the suppression of Brown's confession. As the phrasing of her argument suggests, a defendant's limited intelligence or mental health alone does not render a confession involuntary. Indeed, in Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986), the United States Supreme Court said that the purpose of the Fifth Amendment's testimonial privilege against self-incrimination and the requirements of Miranda are to protect against police misconduct. "Although a person's mental condition is relevant to the issue of susceptibility to police coercion, where the person voluntarily makes a confession without police coercion the confession may be considered in spite of the mental condition." Pettiford v. State, 619 N.E.2d 925, 928 (Ind. 1993). See Connelly, 479 U.S. at 167, 107 S. Ct. 515. Thus the issue here really turns on whether the police conduct was coercive within the meaning of Connelly. We decided this issue on direct appeal. Brown, 577 N.E.2d at 230 ("no inducements or threats were made by law enforcement officials to gain the confession"). It is not available for relitigation here.
IV
Brown contends that she was denied the effective assistance of appellate counsel to which she was entitled in several respects. As with claims of ineffective assistance of trial counsel, we analyze claims of ineffective assistance of appellate counsel according to the two-part test announced in Strickland, 466 U.S. at 668, 104 S. Ct. 2052. See, e.g., Lowery, 640 N.E.2d at 1048 ("standard of review for a claim of ineffective assistance of appellate counsel is identical to the standard for trial counsel"). A petitioner claiming ineffective assistance of appellate counsel must show both deficient performance and resulting prejudice. Roche, 690 N.E.2d at 1120. The failure to establish either prong will cause the claim to fail. Id.
Brown first contends that her appellate counsel (who was the same as trial counsel) was ineffective for failing to raise on direct appeal the issues discussed in parts IV-A and IV-B, infra. These were issues, Brown points out, that counsel raised in his motion to correct errors following trial but did not raise on direct appeal.[15] The post-conviction court appears to have concluded that these contentions were tantamount to an argument "that appellate counsel did not pursue a claim in the direct appeal that the trial court judge erred in imposing the death sentence." (R. at 765.) But, the post-conviction court continued, "Because the Supreme Court fulfilled its independent duty to review the propriety of the death sentence and upheld that sentence, that issue is res judicata." Id. We find this conclusion too attenuated to affirm without further analysis.
*1143 The State points out that in the direct appeal, counsel raised five substantial errors for our review and rightly cites our opinion in Lowery to the effect that counsel is not required to raise every possible claim in a direct appeal. As we said in Lowery, counsel should exercise professional judgment and expertise in choosing the issues raised on appeal. Lowery, 640 N.E.2d at 1049. This comports with the United States Supreme Court pronouncement to the same effectthat effective advocacy does not mandate that the appellate attorney raise each and every non-frivolous issue. Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). See Bieghler v. State, 690 N.E.2d 188, 194 (Ind.1997) ("the reviewing court should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made"), reh'g denied. See also Page v. United States, 884 F.2d 300, 302 (7th Cir.1989) ("One of the principal functions of appellate counsel is winnowing the potential claims so that the court may focus on those with the best prospects."). Nevertheless we elect here to address the claims on the merits.
A
One of the mitigating circumstances specified in our death penalty statute is the absence of prior criminal history. During the penalty phase, defense counsel questioned Dr. Suran as to whether Brown had any prior criminal history prior to her association with Coleman. Dr. Suran testified that Brown had no criminal history prior to that time. The crimes Brown committed with Coleman began in June, 1984, with the crimes that are the subject of this proceeding and then continued with additional crimes in Ohio in July of that year. In rebuttal, the State introduced evidence over the objection of Brown's counsel that Brown had been convicted of a kidnaping which occurred after June, 1984. Brown now says, "Defense counsel attempted to establish that Brown had no previous juvenile or adult criminal history prior to her crime spree with Coleman, which began in June, 1984. Admission of a kidnaping conviction which occurred after June, 1984 did not logically tend to rebut the defense evidence. Moreover, admission of [the evidence of the kidnaping conviction] impaired the jury's ability to find the existence of, or give weight to, the [absence of prior criminal history] statutory mitigator." Br. of Appellant at 81.
We have never been called upon to address whether evidence of crimes committed after the offense for which the defendant is on trial is admissible in rebuttal of an assertion of absence of prior criminal history on the defendant's behalf. While such evidence is certainly not relevant to determining whether the defendant had a criminal history prior to committing the offense for which he or she is being tried, we nevertheless believe that such evidence is relevant to determining the weight to be given to the no prior criminal history mitigator. See generally Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn.1979) (evidence of subsequent crimes admissible in penalty phase only if it is relevant to an aggravating circumstance or a mitigating circumstance raised by the defendant). We further note that two of the aggravating circumstances in this case were murders committed by Coleman and Brown (and reduced to conviction) after the date of the offenses for which she was being tried and Brown has never raised any question as to the propriety of using these later-occurring offenses as aggravating circumstances. If Brown has no objection to using later-occurring offenses as aggravating circumstances to justify the imposition of the death sentence, the argument against the use of a later-occurring offense as rebuttal to a claim of no prior criminal history seems far less compelling. We find the trial court well within its discretion to admit the evidence of the later occurring offense in rebuttal and consequently find no ineffective assistance of appellate counsel for failing to raise the issue on direct appeal.
B
At the outset of proceedings in the trial court, Brown filed a motion to dismiss the *1144 death penalty count on grounds that the Indiana death penalty statute was unconstitutional. This claim was raised again in the motion to correct errors but not on direct appeal. Brown now argues that appellate counsel was ineffective for failing to claim that the trial court erred by not denying the motion to dismiss. As best as we can understand Brown's argument in this appeal, she contends that the Indiana death penalty statute is unconstitutional for failing to give adequate guidance to the sentencer in two respects: (1) the statute does not provide any standard of proof for finding the existence of mitigating circumstances; and (2) the statute does not provide any guidance as to how the sentencer is to assess the relative weight of any aggravating and mitigating circumstances found to exist.
We recently addressed the first of these claims in Matheney v. State, 688 N.E.2d 883, 902 (Ind.1997), reh'g denied. Here, Brown argues "This capital sentencing [sic] permits the sentencer to arbitrarily apply any standard of proof to the existence of mitigators it chooses. While the sentencer might apply some low standard of proof to mitigating circumstances, it is equally likely that the sentencer might apply a standard of proof which is higher than contemplated, possibly higher than proof beyond a reasonable doubt. Furthermore, the sentencer is free to apply a completely subjective standard of proof to mitigating circumstances which effectively bars the consideration of both statutory and non-statutory mitigating circumstances." But in Matheney we said, "Without something specific in the given jury instructions which would clearly lead a jury to such a misunderstanding, a bald assertion as to what a jury is likely to presume will not suffice." Matheney, 688 N.E.2d at 902. Brown's argument is even weaker than Matheney's because the record reveals that the trial court instructed Brown's jury, "A circumstance need not be proved, beyond a reasonable doubt, to be considered a mitigating circumstance by you." (T.R. at 290.).
As to the second contention, we resolved the question of whether our death penalty statute provides adequate guidance to the sentencer on the assessment of the relative weight to aggravating and mitigating circumstances adverse to Brown's position in Miller v. State, 623 N.E.2d 403, 408-09 (Ind.1993) (citing Fleenor v. State, 514 N.E.2d 80 (Ind. 1987))
C
Brown contends that appellate counsel was ineffective for failing to claim on direct appeal that the Indiana death penalty statute was unconstitutional as applied to Brown in this case because it failed to narrow the class of persons eligible for capital punishment. Specifically, she argues that the first aggravating circumstance alleged by the State in support of its death penalty request, that Brown intentionally killed while committing child molesting, duplicated the elements of the underlying murder and child molesting charges. She begins by observing that the United States Supreme Court held in Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988), to the effect that a legislature may achieve the constitutionally required narrowing either by defining certain murders as capital offenses or by requiring findings of aggravating circumstances at the penalty phase. Noting that Indiana has chosen the later approach, she contends that in her situation no narrowing occurred because the aggravating circumstance charged was no different than the underlying offenses with which she was charged. As the State properly points out, this court has previously held that such a contention misconstrues the narrowing function of our death penalty statute:
Appellant ... claims that the overlap between the aggravating circumstance found at the sentencing phase and the convictions at the guilt phase violates constitutional principles by eliminating the critical narrowing function of the sentencing process, allowing the State to enter the penalty phase with the aggravating circumstance already proven beyond a reasonable doubt. Our death penalty statute requires the sentencer to find at least one aggravating circumstance beyond a reasonable doubt, to consider and evaluate any mitigating factor it may find to exist, and to weigh the aggravators and mitigators, finding that the mitigating circumstances are outweighed *1145 by the aggravating circumstances, before it may impose death. This scheme adequately structures and channels the discretion of the jury and the court and satisfies the ruling in Lowenfield v. Phelps[.]
Baird v. State, 604 N.E.2d 1170, 1183 (Ind. 1992).
D
Brown contends that appellate counsel was ineffective for failing to raise three claims of trial court error in instructing the jury.[16] Brown's assertions of ineffective assistance of counsel are conclusory in nature and not supported by any argument or authority as to deficient performance. We find such claims waived for failure to comply with Ind.Appellate Rule 8.3(A)(7) (requiring an appellant's brief to set forth "the contentions of the appellant with respect to the issues presented, reasons in support of the contentions along with citations to authorities, statutes, and parts of the record relied upon").
V
Brown contends that the operation of the Lake County public defender system created a conflict of interest for her trial counsel, denying her the effective assistance of counsel. The conflict alleged appears to be that counsel's loyalty to Brown was compromised by his loyalty to the trial court judge who, under the Lake County scheme, appointed him. Brown also argues that Lake County public defenders were provided insufficient resources by the judges.
Brown's claim is similar tothough less developed thanseveral claims recently rejected by this court. See Johnson v. State, 693 N.E.2d 941, 952 (Ind.1998) (alleging systemic deficiencies in the Madison County public defender system), reh'g denied; Roche, 690 N.E.2d at 1135 (Lake County); Games v. State, 684 N.E.2d 466, 478-80 (Ind. 1997) (Marion County), reh'g granted on other grounds, 690 N.E.2d 211. We reach the same conclusion here. First, absent authority or cogent argument from Brown, we decline to find that any conflict of interest that might exist as a result of a trial judge appointing the public defender in his or her court rises to the level of constitutional violation.[17] Second, irrespective of whether there were problems with the Lake County public defender system, Brown must show that her trial counsel provided deficient performance and that it was prejudicial. Johnson, 693 N.E.2d at 953. Brown has shown neither deficient performance nor prejudice.
Conclusion
We affirm the denial of post-conviction relief with respect to Debra Denise Brown's convictions for Murder and Attempted Murder and sentence of death.
SHEPARD, C.J., and DICKSON, SELBY and BOEHM, JJ., concur.
NOTES
[1] Ind.Code § 35-42-1-1 (1982).
[2] Ind.Code §§ 35-41-5-1 & 35-41-1-1 (1982).
[3] Ind.Code § 35-50-2-9 (Supp.1983). Unless otherwise indicated, references to Ind.Code § 35-50-2-9 refer to the version published in the 1983 Supplement to the Indiana Code, the death penalty statute in effect at the time the crimes at issue were committed.
[4] Following oral argument in this case, Brown filed a motion seeking "judgment on the arguments and concessions of the State." She contends that certain statements made by the deputy attorney general arguing the case concerning the FBI material "effectively conceded error of constitutional magnitude." Appellant's Verified Motion for Judgment on the Arguments and Concessions of the State (July 25, 1997). To the extent the State made any concessions in this regard, the State most assuredly did not concede that the FBI documents introduced at the post-conviction proceeding "could be reasonably taken to put the whole case in such a different light as to undermine confidence" in the trial court's judgment. Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Appellant's motion is denied.
For many years in capital cases, this Court has greatly appreciated and valued the willingness of the State to acknowledge the legitimacy of contentions made by criminal defendants and weaknesses in its own cases. Brown's attempt to turn into an admission of constitutional error the State's longstanding policy of forthright and candid discussion of the issues is not well taken.
[5] Ind.Code § 35-50-2-9(c)(5) ("The mitigating circumstances that may be considered under this section are as follows: ... The defendant acted under the substantial domination of another person.").
[6] Ind.Code § 35-50-2-9(c)(2) ("The mitigating circumstances that may be considered under this section are as follows: ... The defendant was under the influence of extreme mental or emotional disturbance when he committed the murder.").
[7] Ind.Code § 35-50-2-9(c)(7) ("The mitigating circumstances that may be considered under this section are as follows: ... Any other circumstances appropriate for consideration.").
[8] Citations to the record of post-conviction proceedings are denominated as "R."; to the trial record as "T.R."
[9] The post-conviction court also concluded that this evidence did not constitute exculpatory evidence and that there was no evidence before it that established that the information in question was ever in the possession of the State. We find it unnecessary to address these findings.
[10] Brown represented to us that she pursued, in a timely manner, all available agency and administrative appeals and that these appeals were denied. Appellant's Verified Motion to Compensate and Authorize Counsel to Pursue Necessary Collateral Litigation (Dec. 20, 1996). She then sought a mandate from this court for funds to litigate a Freedom of Information Act claim against the FBI in federal court. We denied this request by Order dated January 6, 1997.
[11] The post-conviction court excluded some of this evidence. Brown's claim of error in this regard is discussed in part II-B, infra.
[12] While Brown asserts that she was the victim of Battered Women's Syndrome in her post-conviction appeal brief, she points us to no evidence presented to the post-conviction court that actually uses the term "Battered Women's Syndrome."
[13] We note in this regard Brown's use of the adverb "fully" to describe counsel's alleged deficient performance, e.g., "Trial counsel's failure to fully investigate, develop and present penalty phase evidence denied Brown the effective assistance of counsel." Br. of Appellant at 51 (emphasis supplied).
[14] As Brown points out, there is language in the post-conviction court's findings and conclusions that suggests that although the post-conviction court announced during the proceedings that the additional evidence of mitigating circumstances was being excluded, the court did take it into account in its findings. See Br. of Appellant at 92.
[15] At the time of Brown's direct appeal, raising an issue in a motion to correct errors was a prerequisite to appellate review.
[16] Brown also challenges these and an additional instruction as erroneous. Claims of trial court error in instructing the jury not raised on direct appeal are not available for post-conviction review unless the failure to raise them was the result of ineffective assistance of counsel or, perhaps, unless they constituted fundamental error. Although Brown refers to these instructions as "fundamentally erroneous" in the caption to the relevant section of her brief, the narrative portion of that section makes no effort to demonstrate fundamental error. We find such claims, even if available under the fundamental error doctrine, waived for failure to comply with Ind.Appellate Rule 8.3(A)(7).
[17] The conflict of interest present in the sole case cited by Brown involved two lawyers jointly engaged to represent three co-defendants at separate trials. Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). Such a conflict is, of course, very different from the one Brown asserts. | 01-03-2023 | 03-02-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340151/ | 660 S.E.2d 876 (2008)
ANDERSON
v.
The STATE.
No. A08A0698.
Court of Appeals of Georgia.
April 9, 2008.
*877 Albert Anderson, pro se.
Daniel J. Craig, Dist. Atty., for appellee.
BERNES, Judge.
A Richmond County grand jury indicted Albert Anderson on three counts of forgery in the first degree. Anderson pled guilty and was sentenced on each count to six years (two to serve and the remainder probated), with the sentences to run concurrently. He now appeals pro se from the trial court's denial of his motion to modify his sentence. For the reasons discussed below, we affirm.
Anderson was arrested and held in custody in Muscogee County from September 2005 to June 2006, at which point he pled guilty and received a probated sentence for several crimes committed in that county. Thereafter, Anderson was transferred to Richmond County pursuant to a hold that had been placed on him based on outstanding warrants for forgery. Anderson was then held in custody in Richmond County until he entered his guilty plea and was sentenced on the three counts of forgery.
After Anderson was sentenced in Richmond County, he brought several motions attempting to have the trial court modify his sentence in order to credit him for his time served in confinement in Muscogee County. The trial court entered an order denying all of the motions, holding that the court lacked jurisdiction over the computation of credit for time served. Anderson now appeals from that order, arguing that the trial court had jurisdiction and should have modified his sentence.
Without considering the merits of [Anderson's] argument, we hold that this issue is not properly before us. Although under OCGA § 17-10-11(a) a convict should be given credit for time spent in confinement awaiting trial, the amount of credit is to be computed by the convict's pre-sentence custodian, and the duty to award the credit for time served prior to trial is upon the Department of Corrections. OCGA § 17-10-12. The trial court is therefore not involved in this matter. If aggrieved by the calculations in awarding credit, [Anderson] should have sought relief from the Department of Corrections. [The remedy for] [d]issatisfaction with that relief . . . would be in a mandamus or injunction action against the Commissioner of the Department of Corrections.
(Citations, punctuation and footnotes omitted.) Cutter v. State, 275 Ga.App. 888, 890(2), 622 S.E.2d 96 (2005). See also Smashey v. State, 282 Ga.App. 293, 294, 638 S.E.2d 431 (2006).
We would consider Anderson's argument if "the trial court in its written sentencing order [had given] gratuitous misdirection to the correctional custodians." Cutter, 275 Ga. App. at 890-891(2), 622 S.E.2d 96. The remedy in such cases is a remand instructing the trial court to strike the offending language from the sentencing order. Id. at 891(2), 622 S.E.2d 96. Here, however, the trial court's sentencing order stated that Anderson was to receive "credit [for] time served," giving no further direction. "As this generic statement was undisput[ably] correct, we have no reason to direct the trial court to strike any language." Id.
Judgment affirmed.
ANDREWS, P.J., and RUFFIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340140/ | 660 S.E.2d 609 (2008)
ORIX FINANCIAL SERVICES, INC., formerly known as Orix Credit Alliance, Inc., Plaintiff,
v.
RASPBERRY LOGGING, INC., Stephanie McCraney, n/k/a Stephanie Knockett, Defendants.
No. COA07-1051.
Court of Appeals of North Carolina.
May 20, 2008.
Smith Debnam Narron Wyche Saintsing & Myers, L.L.P. by Adam M. Gottsegen, Raleigh, for plaintiff-appellant.
Chesnutt, Clemmons & Peacock, P.A. by Gary H. Clemmons, New Bern, for defendant-appellee.
STROUD, Judge.
Plaintiff filed a "Motion to Enforce Foreign Judgment" in North Carolina based upon a judgment rendered in the United States District Court for the Southern District of New York. The trial court denied plaintiff's motion and dismissed the case with prejudice. Plaintiff appeals. The issues before this Court are whether the trial court erred in (1) denying plaintiff's motion to enforce the foreign judgment, (2) considering parol evidence, and (3) concluding that defendant Stephanie Knockett did not consent to jurisdiction in New York nor did she have minimum contacts with New York. For the following reasons, we affirm.
I. Background
The trial court made extensive findings of fact, only three of which were assigned as error by plaintiff, on the basis that these three findings of fact, numbers 6, 29, and 32, were based upon parol evidence which should not have been considered. Based upon its findings of fact the trial court concluded as law, inter alia, that "Knockett has successfully rebutted the presumption that the North Carolina Courts should grant full faith and credit to the New York Judgment. The United States District Court for the Southern District of New York did not have in personam jurisdiction over Knockett."
Based upon its findings of fact and conclusions of law, the trial court denied plaintiff's "Motion for Enforcement of the Foreign Judgment" and dismissed the action with prejudice. Plaintiff appeals. The issues before this Court are whether the trial court erred in (1) denying plaintiff's motion to enforce the foreign judgment, (2) considering parol evidence, and (3) concluding that defendant Knockett did not consent to jurisdiction in New York nor did she have minimum contacts with New York.
II. Motion to Enforce Judgment
Plaintiff first contends "the trial court erred in denying plaintiff's motion to enforce its foreign judgment when defendant Knockett signed a guaranty agreement with a conspicuous consent to jurisdiction or forum selection clause." For the following reasons, we disagree.
"The judgment debtor may file a motion for relief from, or notice of defense to, the foreign judgment on . . . any . . . ground for which relief from a judgment of this State would be allowed." N.C. Gen.Stat. § 1C-1705(a) (2005).
If a motion for enforcement is filed, a hearing will be held and the trial court will determine if the foreign judgment is entitled to full faith and credit. The burden of proof on the issue of full faith and credit is on the judgment creditor, and the hearing will be conducted in accordance with the Rules of Civil Procedure. The introduction into evidence of a copy of the foreign judgment, authenticated pursuant to Rule 44 of the Rules of Civil Procedure, establishes a presumption that the judgment is entitled to full faith and credit. This presumption can be rebutted by the judgment debtor upon a showing that the rendering court did not have subject matter jurisdiction, did not have jurisdiction over the parties, that the judgment was obtained by fraud or collusion, that the defendant did not have notice of the proceedings, or that the claim on which the judgment is based is contrary to the public policies of North Carolina.
Lust v. Fountain of Life, Inc., 110 N.C.App. 298, 300-01, 429 S.E.2d 435, 437 (1993) (internal citations and internal quotation marks omitted) (emphasis added); see Southern Athletic/Bike v. House of Sports, Inc., 53 N.C.App. 804, 805, 281 S.E.2d 698, 699 (1981) (concluding that a judgment that lacks personal jurisdiction over the defendant is void); cert. denied, 304 N.C. 729, 288 S.E.2d 381 (1982).
"The appellant must assign error to each conclusion it believes is not supported *611 by the evidence. N.C.R.App. P. 10. Failure to do so constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts." Fran's Pecans, Inc. v. Greene, 134 N.C.App. 110, 112, 516 S.E.2d 647, 649 (1999).
The trial court concluded as law that "Knockett has successfully rebutted the presumption that the North Carolina Courts should grant full faith and credit to the New York Judgment. The United States District Court for the Southern District of New York did not have in personam jurisdiction over Knockett." As plaintiff did not assign error to this conclusion of law, plaintiff has waived the right to challenge this conclusion. See id. Therefore, we conclude that the trial court did not err in denying plaintiff's motion to enforce the foreign judgment because the New York court rendering the judgment against Knockett did not have personal jurisdiction over her. See Lust at 300-01, 429 S.E.2d at 437; see also Southern/Athletic Bike at 805, 281 S.E.2d at 699.
III. Parol Evidence
Plaintiff next contends "the trial court erred by considering defendant Knockett's parol evidence at the time the guaranty agreement was executed." Plaintiff specifically contends that "[f]indings of fact numbers 6, 29, and 32 . . . contain the admission of oral evidence that contradicts the terms of the agreement."
However, we need not consider whether the trial court erred in considering evidence that may have contradicted the terms of the contract as the trial court found that the New York court rendering judgment against defendant Knockett did not have personal jurisdiction over her and plaintiff did not contest this conclusion, see Fran's Pecans, Inc. at 112, 516 S.E.2d at 649; without personal jurisdiction over defendant Knockett the New York judgment will not be enforced, and thus the actual terms of the contract are irrelevant. See Lust at 300-01, 429 S.E.2d at 437; see also Southern/Athletic Bike at 805, 281 S.E.2d at 699.
IV. Consent and Minimum Contacts
Plaintiff also argues that "the trial court erred by concluding that defendant Knockett did not consent to jurisdiction in the State of New York and that defendant Knockett did not have to defend an action there on the basis of minimum contacts[.]" This argument is based upon plaintiff's third assignment of error, to conclusion of law number 18. Plaintiff assigned error to this conclusion of law on the "grounds that it is not supported by competent evidence of record[.]" However, again, we will not review the trial court's conclusion on issues of consent and minimum contacts, as plaintiff did not assign error to the trial court's conclusion that the New York court rendering judgment against defendant Knockett did not have personal jurisdiction over her.
V. Conclusion
As the trial court determined that the New York judgment was not enforceable against defendant Knockett because of a lack of personal jurisdiction over her, and plaintiff failed to challenge this conclusion of law, we affirm the trial court's decision to deny plaintiff's motion to enforce the foreign judgment.
AFFIRMED.
Judges TYSON and GEER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340848/ | 180 Ga. App. 812 (1986)
350 S.E.2d 821
WHITEHEAD et al.
v.
COGAR.
73351.
Court of Appeals of Georgia.
Decided November 12, 1986.
J. Madden Hatcher, Jr., for appellants.
L. B. Kent, for appellee.
DEEN, Presiding Judge.
Plaintiff/appellee Cogar was employed as a carpenter by a contractor working on property located on Bishop Drive, a residential street in Columbus, Georgia. At the beginning of the work day, he had parked his automobile on the shoulder of the two-lane road upon which the property abutted, and his employer had parked his pick-up truck a few feet behind Cogar's At the end of the day's work Cogar went to the rear of his own vehicle to put his tools inside.
At the same time appellant Whitehead was driving his father's automobile along Bishop Road, where the speed limit was 30 miles per hour, at a speed of approximately 45-55 miles per hour, according *813 to the evidence presented at trial. He was traveling in the same direction in which the parked vehicles were headed, and the shoulder on which they were parked was to his right. Whitehead was driving in the left lane rather than the right lane, however. As he approached the top of a little rise near where Cogar's and his employer's vehicles were parked, he saw an oncoming car headed straight towards him. He swerved into the right lane, apparently lost control of his vehicle, and slid or skidded into the rear of the contractor's truck. The latter was shoved forward by the impact and struck Cogar, who was pinned against his own car and sustained severe and disabling injuries.
In the ensuing personal injury action a jury awarded Cogar $100,000 in damages. Whitehead moved for a new trial on the basis of an allegedly improper jury instruction quoting a statute, OCGA § 40-6-45, which prohibits a vehicle's being driven on the left side of the road specifically, inter alia, when it is approaching the crest of a grade. Whitehead argued that this statute was inapplicable to the fact situation of the instant case because appellee, as a pedestrian, was not a member of the class the statute was designed to protect. The motion was denied, and on appeal Whitehead enumerates as error the denial of his motion for new trial and the giving of this same jury charge. Held:
1. On appellate review a challenged jury charge must be considered as a whole, rather than in isolated segments. In a decision rendered a century ago, Chief Justice Logan Bleckley of Georgia's Supreme Court made the classic statement on this subject: "A charge, torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall." Brown v. Matthews, 79 Ga. 1, 7 (4 S.E. 13) (1887). In the instant case, according to the trial transcript which is a part of the record, the court charged not only the Code section to which appellant excepts (OCGA § 40-6-45), but also other Code sections (e.g., §§ 40-6-40; 40-6-180) dealing with permissible speeds in given situations and with other rules prescribing the proper use of public roads. The court also charged on burden of proof, evidentiary standard, and other matters appropriate to the issues raised and the evidence presented. Moreover, appellant has failed to show what harm he suffered as the result of the giving of this particular jury instruction. To warrant reversal, the alleged error must be harmful. Dill v. State, 222 Ga. 793 (152 SE2d 741) (1966); McKenney v. State, 163 Ga. App. 545 (295 SE2d 217) (1982); Best Concrete Prods. Co. v. Medusa Corp., 157 Ga. App. 97 (276 SE2d 147) (1981). See also Sprayberry v. Snow, 190 Ga. 723, 728 (10 SE2d 179) (1940); Jones v. Dixie Drive It Yourself System, 97 Ga. App. 669, 671 (104 SE2d 497) *814 (1958). The enumeration is without merit.
2. Inasmuch as the motion for new trial was premised solely on the challenged jury instruction which we have held not to be improper, above, this enumeration is also without merit.
Judgment affirmed. Benham and Beasley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340850/ | 180 Ga. App. 746 (1986)
350 S.E.2d 582
GRANT
v.
THE STATE.
72955.
Court of Appeals of Georgia.
Decided October 23, 1986.
Rehearing Denied November 5, 1986.
J. M. Raffauf, for appellant.
Robert E. Wilson, District Attorney, James W. Richter, Barbara B. Conroy, Assistant District Attorneys, for appellee.
DEEN, Presiding Judge.
At 3:15 a. m. on December 28, 1984, DeKalb County police attempted to stop a motorcycle driven by the appellant, Wayne Douglas Grant. Grant lost control of the motorcycle and went down, after which he was arrested for speeding, improper passing, attempting to elude, and operating with an improper class of license.
On January 4, 1985, the DeKalb County police discovered that the motorcycle driven by Grant had been stolen, when the owner reported it as missing. (The owner had left town on December 27, 1984.) On February 6, 1985, a warrant was sworn out against Grant, charging him with theft by receiving stolen property, and Grant was eventually arrested on that charge in June 1985.
On January 11, 1985, prior to the formal charge against Grant for theft but after the police were aware of the basis for that charge, the traffic offenses were heard in the Recorder's Court of DeKalb County, at which time Grant was found guilty of speeding, operating with an improper license, and attempting to elude.
On August 8, 1985, Grant was indicted for theft by receiving stolen property, in response to which he filed a plea of former jeopardy. On October 14, 1985, the assistant district attorney submitted a nolle prosequi order, indicating that prosecution was barred under OCGA § 16-1-7 (b), which was signed by the superior court and entered on October 23, 1985. However, on February 3, 1986, Grant was reindicted. He subsequently filed a plea of former jeopardy, multiple prosecution, collateral estoppel, and res judicata. (At the hearing on that motion, the trial court explained that he had signed the nolle prosequi order by mistake, thinking that it was another case.) From the trial court's ultimate denial of the plea of former jeopardy, etc., this appeal followed. Held:
*747 1. The appellant contends that his reindictment and prosecution for theft by receiving stolen property violates both the federal constitutional and state statutory bars to double jeopardy. However, the theft in this case did not arise from the same conduct for which he was prosecuted in the Recorder's Court. The only connection between the theft charge and the traffic offenses in this case was the fact that Grant committed the traffic offenses with the stolen vehicle. As stated in Smith v. State, 173 Ga. App. 728, 730 (327 SE2d 839) (1985), "[w]e reject any contention that when one steals a vehicle, every act however unrelated and independent which he commits while in possession of that vehicle is, by virtue of that single fact, of the same conduct and same continuing transaction as the theft of the vehicle." Accordingly, we find no violation of the federal constitutional bar against double jeopardy and no impermissible multiple or successive prosecution under OCGA §§ 16-1-7 (b) or 16-1-8 (b).
2. Grant also contends that the entry of the nolle prosequi order, indicating that prosecution was barred, estopped the state from reindicting and prosecuting him for the theft offense. Entry of a nolle prosequi to an indictment before it has been submitted to a jury has never been a sufficient ground to sustain a plea in bar to a reindictment for the same offense. Bowens v. State, 157 Ga. App. 334 (277 SE2d 326) (1981); Doyal v. State, 70 Ga. App. 134 (1883). Specification of the reason for entering the nolle prosequi in this case does not provide a sufficient ground for demolition of this ancient rule.
3. In asserting that the trial court erred in not securing Grant's presence at the hearing on the plea in bar, Grant misplaces his reliance upon Wilson v. State, 212 Ga. 73 (90 SE2d 557) (1955), Chance v. State, 156 Ga. 428 (119 S.E. 303) (1923), and Tiller v. State, 96 Ga. 430 (23 S.E. 825) (1895). Those cases declare a defendant's right to be present at all stages of his trial, and not pre-trial motion hearings.
Judgment affirmed. Benham and Beasley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1340846/ | 350 S.E.2d 63 (1986)
STATE of North Carolina
v.
Ernest Lee MARTIN.
No. 749PA85.
Supreme Court of North Carolina.
November 18, 1986.
Lacy H. Thornburg, Atty. Gen. by Steven F. Bryant, Asst. Atty. Gen., Raleigh, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender by Louis D. Bilionis, Asst. Appellate Defender, Raleigh, for defendant-appellant.
BROWNING, Justice.
Defendant was convicted of first-degree murder in the perpetration of a felony and was sentenced by Cowper, J. to life imprisonment at the 20 June 1977 Criminal Session of Superior Court, Wayne County. On 6 July 1984 defendant, appearing pro se, filed a Motion for Appropriate Relief in Superior Court, Wayne County alleging inter *64 alia, ineffective assistance of counsel. Resident Superior Court Judge R. Michael Bruce appointed counsel to represent defendant. Defendant filed an Amended Motion for Appropriate Relief on 17 September 1984. This motion was heard by Lane, J. at the 9 November 1984 Criminal Session of Superior Court, Wayne County. After making findings of fact and conclusions of law, Judge Lane entered an order denying relief on 20 December 1984.
Defendant bases his Motion for Appropriate Relief on the failure of his trial counsel to communicate plea offers made by the district attorney before and during defendant's trial for murder and robbery. Specifically, defendant claims that the district attorney, Donald Jacobs, offered defendant, through his trial counsel, Herbert Hulse, Sr., a ten year sentence in exchange for a guilty plea by defendant to a lesser charge. Defendant alleges that Hulse never communicated this offer to him at any time and that Hulse's failure to communicate the alleged plea offer constitutes ineffective assistance of counsel. In conclusion, defendant contends that the superior court's findings of fact did not support a denial of his Motion for Appropriate Relief but rather compel a conclusion that appropriate relief is warranted in this case.
The standard for determining whether there has been a violation of a criminal defendant's sixth amendment right to effective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, the Supreme Court set forth a two-prong test to be used in analyzing ineffective assistance of counsel claims. Under this test the defendant must show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defendant to such a degree as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The Strickland test was specifically adopted by the Supreme Court of North Carolina in State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).
In State v. Simmons, 65 N.C.App. 294, 309 S.E.2d 493 (1983) the North Carolina Court of Appeals held that, absent a showing of extenuating circumstances, failure to inform a client of a plea bargain offer constitutes ineffective assistance of counsel. In Simmons, affidavits were filed by the assistant district attorney prosecuting the case, counsel representing the defendant, and counsel representing a codefendant acknowledging that a plea had in fact been offered by the assistant district attorney. Counsel for the defendant erroneously believed that the plea offer was conditioned on acceptance by the codefendant and failed to inform his client of the offer after the codefendant refused to accept the plea. Affidavits filed by the other parties present at the meeting indicated that the offer was not conditional on acceptance by both defendants but was rather an unconditional offer. Based upon these affidavits, the court ruled that the defendant's Sixth Amendment right to effective assistance of counsel had been violated.
In the case sub judice, defendant's Motion for Appropriate Relief is based upon N.C.G.S. § 15A-1415(b)(3) and (b)(6), contending that his conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina in that he was denied effective assistance of counsel. N.C.G.S. § 15A-1420(c) sets forth the procedural rules to be used in hearings on Motions for Appropriate Relief. Pursuant to N.C.G.S. § 15A-1420(c)(5), "[i]f an evidentiary hearing is held, the moving party has the burden of proving by a preponderance of the evidence every fact essential to support the motion." Therefore, in this case defendant had the burden during the evidentiary hearing of proving by a preponderance of the evidence that a definite plea offer was made by the district attorney to Mr. Hulse.
In State v. Stevens, 305 N.C. 712, 291 S.E.2d 585 (1982), this Court held that in reviewing orders denying a defendant's Motion for Appropriate Relief, findings of fact made by the trial judge are binding *65 upon the petitioner if they are supported by evidence. This Court in Stevens further stated that this rule would apply even though the evidence presented at the hearing was conflicting and notwithstanding the defendant's testimony at the hearing to the contrary. State v. Stevens, 305 N.C. at 720, 291 S.E.2d at 591; State v. Baker, 312 N.C. 34, 40, 320 S.E.2d 670, 675 (1984); State v. Bush, 307 N.C. 152, 168, 297 S.E.2d 563, 573 (1982).
In his order denying defendant's motion, Judge Lane made numerous findings of fact. Specifically as to the existence of a plea offer, Judge Lane found:
16. That the District Attorney for the State does not recall whether or not if he communicated an offer to the Defendant's attorney for a plea bargain;
17. That the Attorney for the Defendant does not recall any such offer, and did not communicate such an offer;
Lastly, it should be noted that Judge Lane made no finding of fact that there was any direct communication of a definite plea offer between Mr. Jacobs and Mr. Hulse.
After a careful review of the motion hearing transcript, we also find no evidence that there was any direct offer of a definite plea between Mr. Jacobs and Mr. Hulse. Specifically the motion hearing transcript includes sworn testimony by Mr. Hulse that he never received a plea offer from Mr. Jacobs. At the motion hearing Mr. Hulse testified about the alleged offer of a plea bargain as follows:
Mr. Jacobs, I, uh, was never offered by anybody at anytime to my recollection a proposal to plead Ernest Martin guilty in exchange for asentence of ten years. I know I never received any such offer from you. I know you and I never discussed it, uh, from that standpoint. There might have been some vague discussions about a plea of guilty and leaving the punishment up to the Judge....
Additionally, the transcript shows that Mr. Hulse reaffirmed this statement on several other occasions during direct and cross examination. Finally, District Attorney Jacobs stated during the hearing that, "I searched my memory and I cannot definitely say one way or another whether or not I offered any plea, whether or not I didn't offer any plea. I just don't remember." Therefore, the factual situation in the case sub judice is in sharp contrast to that in Simmons, as here there is no evidence that a definitive plea offer was ever made between the district attorney and the defense counsel.
We do not find it unusual that Mr. Jacobs might fail, in 1984, to remember the events of a case which happened some seven years earlier. Where, as in this case, defendant had knowledge of the alleged wrong immediately after trial and failed to timely raise the issue, it is not unreasonable to surmise that memories would be faded and that defendant would be unable to carry the required burden of proof.
After a careful examination of the evidence, as preserved in the motion hearing record, we cannot find that defendant has satisfied his burden of proof by proving by a preponderance of the evidence that a definite plea offer was made by the district attorney to Mr. Hulse. Additionally, as there is evidence to support the findings of fact made by Judge Lane, we are compelled to uphold his order denying relief. Although the record presents conflicting evidence, there is no direct evidence that a definitive plea offer was ever made between District Attorney Jacobs and Mr. Hulse. The record clearly shows that Mr. Hulse, under oath, unequivocally denied that any such offer was made and that the district attorney, Mr. Jacobs, does not recall whether any such offer was made. In light of these facts, and the record as a whole, we find that Judge Lane did not abuse his discretion in denying defendant's Motion for Appropriate Relief.
NO ERROR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341077/ | 279 S.C. 126 (1983)
302 S.E.2d 366
Carl E. ALLEY, Respondent,
v.
Mildred C. STRICKLAND, Marcus Lee Strickland, Henry L. Strickland, Lavada S. Strickland, Fred Sutherland, James Sutherland, Eva Reid, Willie Ruth Lawson, Venita Bailey, Lucille S. Loftis, Danny Loftis, Susan Loftis, Angela Loftis, Jackie Shirley, Linda Carey, Willie Moore, Jimmie Moore, Eva Poole, Eleanor Harrison, Bennie Moore, Jesse Moore, and all children and grandchildren of S.L. Strickland, individually, and as representatives of the classes to which they belong as possible heirs of S.L. Strickland, and all persons entitled to claim under and through them or any of them known and unknown, in esse and unborn; also, all other persons unknown claiming any right, title, interest in or lien upon the real estate described in the Complaint herein; any unknown adults being a class designated as Joe Doe and any unknown minors who are fourteen (14) years of age or over or persons under a disability or persons in military service being a class designated as Richard Roe, and any unknown infants who are under fourteen (14) years of age or persons under a disability being as a class designated as Jack Pie, of whom Henry L. Strickland, Fred Sutherland, James Sutherland, Eva Reid, Willie Ruth Lawson, Lucille S. Loftis and Willie Moore are, Appellants.
21920
Supreme Court of South Carolina.
May 9, 1983.
*127 Marvin R. Watson, of Greenwood and J. Kendall Few, Greenville, for appellants.
Robert L. Waldrep, Jr., Anderson, for respondent.
May 9, 1983.
Per Curiam:
This case involves the construction of a will. The testator, S.L. Strickland, died in 1946 leaving successive life estates in a parcel of land to his wife and upon her death to his son, S.A. Strickland. The remainder was left to the "heirs" of the son. The lower court held the son adopted by S.A. Strickland in 1952 was an "heir" and was therefore entitled to a portion of the remainder. We agree and affirm.
The sole issue in this case is whether the adopted son is precluded from receiving the remainder because he is not the biological child of S.A. Strickland. In South Carolina an adopted child is "considered a natural child of the adopting parents for all inheritance purposes ...." Code of Laws of South Carolina § 15-45-130 (1976). The appellants argue the adopted son cannot benefit from this statute because it became effective after both the execution of the will and his adoption and he is therefore not an "heir."
"Heirs" are those who would take under the statutes of descent and distribution upon the intestate death of the ancestor in question. Landrum v. Branyon, 161 S.C. 235, 159 S.E. 546 (1931); Simes, Handbook on the Law of Future Interests, § 107 (2d Ed. 1966); 26A C.J.S. Descent and Distribution § 19 (1956). "Heirs" are not determined until the death of the ancestor in question. Simes, supra; Restatement of the Law to Property, § 305 (1940). The ancestor in question here is S.A. Strickland, the life tenant, who died in 1964. Therefore, his "heirs" would be determined from the statutes of descent and distribution in effect at his death in 1964. Code § 15-45-130 was in effect at S.A. Strickland's death, making his adopted son his "heir."
The appellants cite Turner v. Turner, 260 S.C. 439, 196 S.E. (2d) 498 (1973), in support of their argument against the *128 adopted son. But in Turner the testatrix used the phrase "heirs of his body" to limit the remainder. In this case, the testator used only the word "heirs." In Turner, we held that an adopted child could not take when the testator limited the remainder to "heirs of the body." However, in Limehouse v. Limehouse, 256 S.C. 255, 182 S.E. (2d) 58 (1971), the Court indicated a different result would probably be reached where the word "heirs" is used. We now hold that adopted children are included when a remainder is limited solely to "heirs."
The trial judge ruled the adopted son should receive his appropriate share (one-half) of the remainder. For the reasons stated above, the decision is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341072/ | 165 Ga. App. 773 (1983)
302 S.E.2d 626
JOHNSON
v.
THE STATE.
65783.
Court of Appeals of Georgia.
Decided March 14, 1983.
F. Robert Raley, for appellant.
Clarence H. Clay, Jr., Solicitor, David M. Baxter, Assistant Solicitor, for appellee.
DEEN, Presiding Judge.
Appellant in this case left his pickup truck standing in the right-hand traffic lane of a Macon thoroughfare during afternoon rush hour while he conversed with a friend in the latter's front yard. An officer proceeding on routine patrol in the opposite direction observed the truck and noted that traffic was having to change lanes *774 in order to pass it; he decided, however, not to investigate it or report it until completion of his current round, but to check the site on his return patrol. Apparently only minutes after this occurrence, another officer routinely patrolling in the other direction came up behind the same truck and, turning on his flashing blue lights, stopped to investigate whether a motorist might need assistance. Finding no one in or near the truck, he was preparing to fill out a tow-away order when he became aware of two persons entering the truck. According to his testimony at trial, he blew his horn to attract their attention but received no acknowledgment. The truck started forward, pulled into a left-turn lane, and sat awaiting a green light. The officer pulled close behind and, through his open window, shouted an instruction to the driver to pull over. The driver shouted back that he needed to go to the post office and that the officer would have to follow him there if he wanted to speak with him. The officer turned on his siren in addition to the blue lights, and the truck's driver, after proceeding for approximately two blocks, pulled over.
The officer approached the vehicle on foot and, according to his own testimony, which defendant disputed, asked to see a driver's license but defendant refused to comply. Then, according to undisputed testimony, the driver began shouting at the officer and refused to exit the truck on the latter's command. The officer managed to get a handcuff on the driver's nearer wrist despite the latter's apparent attempt to get out the opposite door, through which his passenger had fled. A passing motorist who had noted the struggle between the slightly built officer and the rather large driver stopped to offer assistance but, according to his trial testimony, decided to leave when he saw a police car (the same one whose driver had earlier observed the parked truck) approaching the scene. Residents of nearby houses testified that they heard the shouting and observed movements that could have indicated a struggle between the officer and his adversary. After appellant was subdued he was turned over to city traffic authorities, but his case was subsequently transferred to the State Court of Bibb County for trial, where he was found guilty on charges of obstructing a police officer, fleeing and attempting to elude an officer, and operating a motor vehicle without a valid driver's license.
Appellant unsuccessfully moved for a new trial on the general grounds and on the basis of the court's alleged intimations of opinion regarding the evidence and allegedly ineffective assistance of counsel. On appeal he enumerates as error these same grounds, further alleging that the trial court erred in denying his motions for a directed verdict of acquittal and for a new trial. Held:
1. We find no merit in appellant's enumerations concerning *775 court and counsel. Scrutiny of the trial transcript reveals that the demeanor of the trial judge was impeccable: he was attentive to the questions and comments of counsel and the responses of the witnesses, alert to actual and potential improprieties, and impartial in his reprimands to both sides when their conduct verged on the improper. The record reveals nothing that would trigger the provisions of OCGA § 17-8-55 (Code Ann. § 81-1104). See, e.g., Mays v. State, 237 Ga. 907 (230 SE2d 282) (1976); Pierce v. State, 212 Ga. 88 (90 SE2d 417) (1955); Hendricks v. State, 157 Ga. App. 715 (278 SE2d 453) (1981); Hamilton v. State, 91 Ga. App. 295 (85 SE2d 496) (1954).
As for the conduct of appellant's trial counsel, the record discloses no failure to conform to the standards generally accepted as amounting to effective representation. The constitution and laws neither of this state nor of the United States guarantee errorless representation. The standard is reasonably effective assistance; an adverse result at trial is no measure of effectiveness. Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974); Guthrie v. State, 160 Ga. App. 824 (287 SE2d 673) (1981). In the instant case appellant's counsel examined the witnesses competently; he summarized the evidence accurately in his closing statement and argued the favorable inferences that might reasonably be drawn therefrom; and his failure to object repeatedly to the judge's comments and rulings (as appellant contends he should have done) was proper in that the judge did nothing to which objection was appropriate.
2. Also without merit are appellant's enumerations regarding the sufficiency of evidence and the denial of his motions for a directed verdict and for a new trial. A directed verdict is appropriate only when "there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal ..." OCGA § 17-9-1 (a) (Code Ann. § 27-1802). Although the denial of a motion for a directed verdict of acquittal is reviewable on appeal, Bethay v. State, 235 Ga. 371 (219 SE2d 743) (1975), it is a basis for reversal only when the evidence demands a verdict of not guilty. Sims v. State, 242 Ga. 256 (248 SE2d 651) (1978); Cleveland v. State, 155 Ga. App. 267 (270 SE2d 687) (1980); Battle v. State, 155 Ga. App. 541 (271 SE2d 679) (1980).
In the instant case there were a number of conflicts in the evidence regarding material issues of fact. For example, there was conflicting testimony as to whether the arresting officer asked to see appellant's driver's license. Subsection (a) of OCGA § 40-5-29 (Code Ann. § 68B-210) requires that a driver have his license "in his immediate possession" whenever he operates a vehicle, and subsection (b) mandates that a refusal to display the license upon demand of a law enforcement officer "not only shall constitute a *776 violation of this subsection but shall also give rise to a presumption of a violation of subsection (a) ..." Although, as appellant argues, the production of a valid license at trial operated to defeat the statutory presumption, McCook v. State, 145 Ga. App. 3 (243 SE2d 289) (1978), the charge was proper and the conflicting evidence required submission to the jury. Smith v. State, 158 Ga. App. 663 (281 SE2d 631) (1981). There were also conflicts in the testimony regarding the other two charges: e.g., whether the truck's engine was running, whether the appellant and the officer exchanged blows, whether the officer blew his horn and appellant heard it, at what point the officer turned on his siren, and how long the truck remained standing in the traffic lane. The trial court did not err in denying the motion for a directed verdict.
Likewise, the court did not err in denying the motion for a new trial. The evidence was sufficient to support the verdict of guilty on all counts, and the other grounds alleged in the motion for new trial were also without merit, as noted in Division 1.
Judgment affirmed. Banke and Carley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341069/ | 302 S.E.2d 490 (1983)
BRACEY ADVERTISING COMPANY, INC.
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION and North Carolina Board of Transportation.
No. 8210SC526.
Court of Appeals of North Carolina.
May 17, 1983.
*491 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas H. Davis, Jr., Raleigh, for respondents-appellants.
McLean, Stacy, Henry & McLean by H.E. Stacy, Jr., and William S. McLean, Lumberton, for petitioner-appellee.
BRASWELL, Judge.
The facts relate to outdoor advertising signs on interstate highways. The law involves the subject of nonconforming use. The only question presented for review, as phrased by the respondent appellants, is: "Did the trial court err in ruling that as of October 15, 1972, the petitioner's sign structures were a nonconforming use such that petitioner had a vested right to build the subject outdoor advertising signs?" We find the trial judge ruled correctly.
Over the years Bracey Advertising Company, Inc. (hereafter called Bracey) has conducted its business of outdoor advertising on signs erected on poles along highways in Robeson County and elsewhere. A new segment of Interstate Highway 95 in Robeson County between Lumberton and the North Carolina-South Carolina State Line was opened to traffic on 15 December 1972. Previously, Bracey had contracts with existing customers who leased outdoor advertising signs along U.S. Highway 301, which ran parallel to the new and unopened segment of I-95. Bracey's clients desired to continue their advertising by contracting for new signs along the new segment of I-95. Certain preparations were made by Bracey for 19 new signs along I-95 before 15 October 1972. When the respondents learned of Bracey's activity, the Board of Transportation approved a resolution on 8 June 1979 directing Bracey to remove its outdoor advertising within 30 days and for the Department of Transportation to take whatever legal action was necessary to seek compliance with the order. It was Bracey's view that the resolution and order were erroneous, that the respondents were estopped, and that Bracey's prior activity vested it with the status of nonconforming use. Bracey petitioned for judicial review of the 8 June 1979 administrative order.
After an evidentiary hearing, the trial judge made extensive findings of fact and adjudged that Bracey's signs "constituted a non-conforming use and [Bracey's] rights therein were vested as of October 15, 1972. Respondents may not retroactively abrogate such rights." The judge also permanently restrained the respondents from enforcing the Board's order of 8 June 1979 as against Bracey.
Our review in this appeal is controlled by G.S. 136-134.1. See Advertising Co. v. Bradshaw, Sec. of Transportation, 48 N.C. App. 10, 268 S.E.2d 816, disc. rev. denied, 301 N.C. 400, 273 S.E.2d 446 (1980). G.S. 136-134.1 provides that the court may affirm, reverse or modify the decision if the decision is in violation of constitutional provisions, not made in accordance with D.O.T. regulations, or affected by other error of law. The basic facts are not in dispute. Respondents bring forward no exceptions to the trial judge's findings of fact. The respondents argue that the judgment is reversible because of errors of law: (1) the trial judge should not apply decisions relating to nonconforming use in the zoning laws to a situation controlled exclusively by the Outdoor Advertising Control Act; and (2) even if zoning case law should be applied, that the offending signs are unlawful and ought to be removed because Bracey had knowledge of the pendency of the Act when it performed its activity, that it knew the Act would go into effect when federal funds became available, that Bracey was put on notice that its sign activity might be curtailed in the future, and that Bracey raced to beat the clock and lost. We disagree on both arguments.
North Carolina's Outdoor Advertising Control Act was enacted in 1967. In its declaration of policy, G.S. 136-127 declares that "outdoor advertising is a legitimate commercial use of private property adjacent to roads and highways," and then declares a *492 policy of regulation and control of same. In G.S. 136-128(2a) the article recites that a "`Nonconforming sign' shall mean a sign which was lawfully erected but which does not comply with the provisions of State law or State rules and regulations passed at a later date or which later fails to comply with State law or State rules or regulations due to changed conditions. Illegally erected or maintained signs are not nonconforming signs."
Prior litigation established 15 October 1972 as the effective date for the enforcement of North Carolina's Outdoor Advertising Control Act. Advertising Co. v. Dept. of Transportation, 35 N.C.App. 226, 241 S.E.2d 146, disc. rev. denied, 295 N.C. 89, 244 S.E.2d 257 (1978). Another decision, Days Inn v. Board of Transportation, 24 N.C.App. 636, 640, 211 S.E.2d 864, 867, cert. denied, 287 N.C. 258, 214 S.E.2d 429 (1975), held that the Act "did not become effective on 17 July 1972."
What did Bracey do on or before 15 October 1972? Bracey's activity, fully supported in the record, follows: Commencing in 1971 and before, Bracey made searches for likely sign sites on I-95 in the area in question. Before 1 June 1972, Bracey had oral leases with landowners for the 19 sign locations [note: only 17 sign sites were in controversy at trial according to the parties' statements in the record] on the unopened segment of I-95. Beginning 15 September 1972 the oral leases were reduced to writing. Prior to 1 June 1972 Bracey had oral agreements with customers for advertising to be located on the 19 signs, and beginning 18 August 1972 these agreements were reduced to writing.
In 1971 Bracey incurred expenses relating to the search for sign sites including travel and salary of James L. Bracey, an officer and employee. Bracey would go to or near the unopened segment of highway, discover the person in possession, conduct a search of courthouse records to establish landowners, and would thereafter meet and negotiate with landowners. Bracey also incurred expenses in making contact with its advertising customers and securing contracts with them. Bracey erected sign support poles on or before 15 October 1972.
Applications for permits for the erection of the signs in question were made by Bracey to Robeson County, and prior to 15 October 1972 Robeson County issued building permits for the 19 signs. For these permits Bracey incurred an expense of $95.00, which was paid prior to 15 October 1972.
Other expenses incurred prior to 15 October 1972 were: cost of poles at 19 locations, $1,654.77; cost of concrete to implant poles, $627.00; rent, $1,100.00; time of James L. Bracey re leasing, securing permits and advertising contracts, approximately $1,200.00; labor for transporting and implanting the poles, $6,820.00; overhead expenses, $1,200.00; with a total expense incurred (including $95.00 for building permits) prior to 15 October 1972 of $12,696.77.
Between 15 October 1972 and March 1973 Bracey incurred expenses of $12,886.18 for completing the 19 signs. Bracey had not added facings and advertising messages to the signs as of 15 October 1972. The project had not been completed, and there was no traveling public on this segment of the highway to see any advertising signs until 15 December 1972. The project was not completed and accepted by the State Highway Commission until approximately 28 June 1973 to 28 July 1973.
What did the State Highway Commission (the predecessor of respondents) do prior to and soon after 15 October 1972? On 5 October 1972 the State Highway Commission revised its ordinance to hold that the effective date for the enforcement of standards controlling outdoor advertising was 15 October 1972. On 13 October 1972 the District Engineer of the State Highway Commission and his Assistant conducted an inventory of the highway segment in question and found numerous poles in place, but found no completed sign structures. On 16 October 1972 another inventory by the same persons found no change from the condition of the inventory of 13 October 1972. On 13 November 1972 three sign facings were found on poles in the questioned area.
*493 A meeting of division engineers of the respondents was held on 27 September 1972. The memorandum calling the meeting was dated 13 September 1972. (Exhibit F of the pre-trial order.) It says: "The date of October 15, 1972, has been tentatively established as the effective date for implementation of our billboard permit program." (Emphasis added.)
At the 27 September 1972 meeting the District Engineers and Assistants were given a printed procedure which shows that they were to prepare "to be mailed on 6 October 1972" to each known sign owner a package which would include: "(a) Mimeographed letter of notification of permit requirement, (b) Outdoor Advertising Manual, (c) Sufficient applications for permits for each sign within your area." (Exhibit H of the pre-trial order.) On the subject of enforcement of permit requirements, the procedure stated:
"If an application for a permit to maintain an existing sign is not received by November 15, 1972, notification by certified mail should be given the sign owner that the sign must be removed or a permit obtained. (A form letter is provided for this purpose). If the owner fails to act within say three weeks, you should take action to have the sign removed and line through the sign on your inventory form."
On 17 October 1972 Bracey received by hand delivery a letter dated 9 October 1972, along with applications for permits and a manual. In part, it stated that, "Effective October 15, 1972, permits are required to erect new sign structures in controlled areas and to maintain existing outdoor advertising signs." The letter gave a 30-day period within which to apply for permits or to remove signs.
On 1 December 1972 Bracey received formal notification from respondents that the 3 outdoor advertising structures discovered on 13 November 1972 were illegal and must be removed in 30 days. Thereafter a series of court petitions and orders occurred in various proceedings between the parties which culminated with the 8 June 1979 order of the respondents and the initiation of this case.
We recognize that in Advertising Co. v. Dept. of Transportation, supra, 35 N.C.App. at 230, 241 S.E.2d at 148, our Court said: "Those persons or parties, including petitioner [who is the same petitioner here], who erected outdoor advertising devices on or after 15 October 1972 without complying with the established standards did so at their peril." However, the statute recognizes that nonconforming signs due to changed conditions are lawful. In acknowledgement that the Department would be faced with nonconforming advertising, G.S. 136-131 provides a means of State removal by "purchase, gift, or condemnation."
The principles of law of nonconforming use that have been developed by our courts in the area of zoning law are applicable here. Typical of those decisions is Town of Hillsborough v. Smith, 276 N.C. 48, 55, 170 S.E.2d 904, 909 (1969), which expresses the rules as follows:
"... [O]ne who, in good faith and in reliance upon a permit lawfully issued to him, makes expenditures or incurs contractual obligations, substantial in amount, incidental to or as part of the acquisition of the building site or the construction or equipment of the proposed building for the proposed use authorized by the permit, may not be deprived of his right to continue such construction and use by the revocation of such permit, whether the revocation be by the enactment of an otherwise valid zoning ordinance or by other means, and this is true irrespective of the fact that such expenditures and actions by the holder of the permit do not result in any visible change in the condition of the land."
In Hillsborough the defendant had acquired an option on a piece of land to build a dry cleaning plant. Defendant got a building permit, exercised its option, signed a $15,000.00 contract to build and ordered plant equipment. The town enacted a zoning ordinance 5 days later, restricting the area which included the site of the dry *494 cleaning plant to residential use. Although the town revoked the permit, the defendant continued to build the plant. The Supreme Court upheld defendant's right to go forward, complete the construction, and use the property in accordance with the permit.
In In re Campsites Unlimited, 287 N.C. 493, 215 S.E.2d 73 (1975), the question was whether Campsites had a vested right to continue its development after the passage of a zoning ordinance restricting development, when there was no prior ordinance requiring a permit to develop its property. In upholding Campsites' use of the property, the court compared case law in which building permits were a prerequisite in order to make any use lawful with the situation before it where there was no ordinance in effect which required a permit before development could be begun lawfully. The court allowed Campsites to proceed with its construction and development by pointing out that a party may acquire a vested right without a permit where a permit is not required at the time of the good faith expenditure.
Here, Bracey obtained the only required permit, the one from Robeson County, prior to 15 October 1972. The ordinance, resolution, manual, or directive of the respondents did not require any permit prior to 15 October 1972.
We feel that the findings of fact of the trial judge supported by the evidence brings Bracey within the provisions of Warner v. W & O, Inc., 263 N.C. 37, 43, 138 S.E.2d 782, 786-87 (1964): "[t]he law accords protection to nonconforming users who, relying on the authorization given them, have made substantial expenditures in an honest belief that the project would not violate declared public policy." It was not until 5 October 1972 that the ordinance was adopted declaring 15 October 1972 as the effective date of enforcement. Even as late as 13 September 1972, the memorandum of respondent, mentioned earlier above, referred to 15 October 1972 as "tentative." Also, the letter of notice and materials delivered to Bracey on 17 October 1972 allowed 30 days for applications for permits and even then gave alternative instructions should the applications not be received by respondents by 15 November 1972.
We do not feel, as apparently does appellant, that the facts show that respondent failed to act in good faith. See Keiger v. Board of Adjustment, 281 N.C. 715, 190 S.E.2d 175 (1972). Bracey began its activities of site acquisition, began incurring expenses, began the placement of sign poles, and obtained the required county permits without actual knowledge of the 15 October 1972 date. It did not act hurriedly to beat a deadline. The ordinance setting the 15 October 1972 effective date was not adopted until 5 October 1972. Bracey had made a substantial beginning in good faith. It had earlier made substantial expenditures in reliance upon the nonexistence of any law requiring a sign permit from the respondents and in reliance of having obtained the required county permits.
The State's public policy to proscribe outdoor advertising sign activity did not become policy until 15 October 1972. Mere knowledge that at some future time an outdoor advertising ordinance would be enacted is not sufficient to prohibit Bracey's activity prior to 15 October 1972 because all advertisers who did complete their signs prior to 15 October were not violating any ordinance. Had Bracey completed its sign facing prior to 15 October, apparently no lawsuit would have resulted. Bracey has successfully brought itself within the meaning of, and compliance with, the principles of law of the Hillsborough, Warner and Keiger cases.
Affirmed.
WEBB and WHICHARD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341073/ | 302 S.E.2d 194 (1983)
STATE of North Carolina
v.
Donald Wayne DELLINGER.
No. 430A82.
Supreme Court of North Carolina.
May 3, 1983.
*196 Rufus L. Edmisten, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the state.
Rudisill & Brackett, P.A. by J. Steven Brackett, Hickory, for defendant-appellant.
EXUM, Justice.
In this appeal defendant's assignments of error relate to the Speedy Trial Act, a motion for change of venue, admission of evidence and sufficiency of the evidence. We find no merit in any of the assignments and uphold the judgment of the trial court.
The state's evidence tends to show:
On 22 January 1970 the victim, John LaFayette Marlowe, age 69, was living alone in a house in a rural section of Catawba County. In the early evening of that day he left a friend's garage, intending to go to his home several hundred feet away. Early the next morning, Marlowe's dead body was found in a corn field near his house. Multiple head injuries caused his death.
On 17 August 1981, Fred Clifford Sigmon, who had been charged with Marlowe's murder, entered into a plea bargain with the state and agreed to testify with respect to the murder. Defendant was thereafter indicted, and at his trial Sigmon testified as follows: He became acquainted with defendant two or three weeks before 22 January 1970. They began drinking together. Sigmon heard that Marlowe had a large sum of money. Sigmon and defendant decided to rob Marlowe, but defendant promised there would be no violence. Soon after dark on 22 January 1970 they went to Marlowe's home. No one was there. They entered the house but could not find any money. Defendant left the house before Sigmon. When Sigmon left the house defendant "had that man [Marlowe] on the ground beating the hell out of him." Defendant struck Marlowe on his head a number of times with a gun. When Sigmon asked defendant to stop beating Marlowe, defendant threatened to kill Sigmon. After defendant stopped beating Marlowe, defendant and Sigmon went to Hickory. Defendant gave Sigmon $250 or $260 of the $600 defendant said he took from Marlowe.
Defendant offered no evidence.
I.
Defendant's assignments of error one, two, five and six relate to defendant's contentions that the state failed to comply with the Speedy Trial Act, codified in article 35 of Chapter 15A of the General Statutes. G.S. 15A-701(al) provides in pertinent part:
(T)he trial of a defendant charged with a criminal offense who is arrested, served with criminal process, waives an indictment or is indicted, on or after October 1, 1978, and before October 1, 1983, shall begin within the time limits specified below:
(1) Within 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last
....
G.S. 15A-701(b) provides in pertinent part:
The following periods shall be excluded in computing the time within which the trial of a criminal offense must begin:
(1) Any period of delay resulting from other proceedings concerning the defendant including, but not limited to, delays resulting from:
....
d. Hearings on any pretrial motions or the granting or denial of such motions.
The period of delay under this subdivision must include all delay from the time a motion or other event occurs that begins the delay until the time a judge makes a final ruling on the motion or the event causing the delay is finally resolved ....
Defendant was indicted on 31 August 1981. On the same day defendant, then an inmate at the Federal Correctional Center *197 in Butner, N.C.,[2] pursuant to the Interstate Agreement on Detainers Act, G.S. 15A-761 to -767, filed a written request for final disposition of the charges against him relating to Marlowe's murder. According to Judge Johnson's 11 January 1982 order, discussed below, on 2 September 1981 the district attorney began proceedings to have defendant delivered temporarily to this state's custody for trial.[3] Defendant invoked his thirty-day waiting period under the detainer statutes, and on 18 September 1981 he began to file numerous motions. He made motions for a writ of coram nobis, for a change of venue, to dismiss the indictment on various grounds, and for discovery. He filed his motion for change of venue, based on allegations of prejudicial pretrial publicity, on 18 September 1981.
On 22 October 1981 federal authorities offered temporary custody of defendant to the state, and on 15 December 1981 the Catawba County Sheriff took physical custody of him. On 16 December 1981 defendant appeared before Judge Mills in superior court and Mr. Brackett was appointed to represent him. Judge Mills considered what times might be excludable under the Speedy Trial Act, but no order by Judge Mills relating to the Speedy Trial Act appears in the record on appeal.[4] Judge Mills continued the case until 11 January 1982.
On 11 January 1982 defendant's pretrial motions and the state's motion to exclude time from the 120-day Speedy Trial Act provision came on for hearing before Judge Johnson. Judge Johnson denied defendant's motions for change of venue, to dismiss the indictment, and for coram nobis, and allowed defendant's motions to proceed as an indigent, for a bill of particulars, and for discovery. Judge Johnson allowed the state's motion to exclude, among other periods, the time between the filing of defendant's motion for change of venue on 18 September 1981 and its determination on 11 January 1982, and he continued the trial to 18 January 1982.
The case could not be reached for trial at the 18 January 1982 session due to the trial of other cases and the district attorney moved for a continuance. Judge Johnson ordered the case continued until 15 February 1982 and the trial began on that date. On 15 February 1982 defendant orally moved to dismiss the indictment for the state's failure to comply with the Speedy Trial Act.
Defendant argues: (1) Judge Mills erred in failing to enter a written order following a hearing which he conducted on 16 December 1981 and at which he determined that 104 days had then elapsed in computing the time in which defendant had to be tried pursuant to the Speedy Trial Act; and (2) Judge Johnson erred in concluding that the time between the filing of defendant's motion for change of venue and its determination was excludable from the 120-day Speedy Trial Act provision, thus effectively overruling the earlier "order" of Judge Mills. We find no merit in these arguments.
It is well established in this jurisdiction that it is the duty of the appellant to see that the record on appeal is properly made up and transmitted. State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262 (1965). It is also settled that the record imports verity and the court is bound on appeal by the record as certified. State v. Williams, 280 N.C. 132, 184 S.E.2d 875 (1971); State v. Fields, 279 N.C. 460, 183 S.E.2d 666 (1971).
A careful review of the record on appeal and the transcript of the hearings before Judge Mills and Judge Johnson does not *198 support defendant's argument that Judge Mills actually ruled that in computing the time in which defendant had to be tried, 104 days had elapsed as of 16 December 1981. There is some indication in the hearing transcript that Judge Mills contemplated such a ruling, but there is nothing to indicate that he ever so ruled. Indeed a full hearing was held later before Judge Johnson on this very point. We are bound by the record and transcript as certified. This disposes of defendant's arguments that Judge Mills erred in failing to file a written order evidencing his ruling because so far as we can know, he never made the ruling. It also disposes of defendant's argument that Judge Johnson overruled Judge Mills.
Judge Johnson concluded that various periods of time, including the period between the filing of defendant's motion for change of venue on 18 September 1981 and its determination on 11 January 1982 (115 days) was excludable from the 120-day Speedy Trial Act period. This ruling was correct. State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981).
Thus 168 days elapsed between return of the indictment, 31 August 1981, and trial, 15 February 1982. When 115 days during which the motion for change of venue was pending, not an unreasonable time under the circumstances here, is excluded, defendant was tried well within the 120-day speedy trial period.
We deem it unnecessary to determine whether Judge Johnson erred in excluding other periods of time from the 120-day period.
II.
By his third assignment of error, defendant contends that the trial court erred in denying his pro se motion to dismiss the bill of indictment on the grounds of prejudicial publicity by the sheriff's department, insufficiency of the indictment to charge a crime, and insufficiency of evidence presented to the grand jury.
In his brief, defendant's counsel concedes that an examination of the bill of indictment by him reveals no fatal defects. The brief contains no further argument with respect to the contention set forth in this assignment. Thus, the question raised by this assignment of error is deemed abandoned under Rule 28(a) of the North Carolina Rules of Appellate Procedure.
Nevertheless, we have carefully reviewed defendant's motion covered by his second assignment of error and conclude that it has no merit.
III.
By his fourth assignment of error, defendant contends the trial court erred in denying his motion for a change of venue. We find no merit in this assignment.
G.S. 15A-957 provides in pertinent part:
Motion for change of venue.If, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:
(1) Transfer the proceeding to another county in the judicial district or to another county in an adjoining judicial district, or
(2) Order a special venire under the terms of G.S. 15A-958.
A motion for change of venue is addressed to the trial court's discretion and its ruling will not be disturbed on appeal absent an abuse of that discretion. State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 918, 101 S. Ct. 41, 65 L. Ed. 2d 1181 (1980). "The burden of showing `so great a prejudice' by reason of pretrial publicity that a defendant cannot receive a fair trial is on defendant." State v. Oliver, 302 N.C. at 37, 274 S.E.2d at 190; accord, State v. Faircloth, 297 N.C. 100, 253 S.E.2d 890, cert. denied, 444 U.S. 874, 100 S. Ct. 156, 62 L. Ed. 2d 102 (1979).
The record indicates that defendant relied on two newspaper articles and one television newscast in support of his motion for *199 change of venue. The newspaper articles were published in late August and early September 1981 and the television broadcast appears to have been on 18 August 1981 on the 11 p.m. news. The trial took place in mid-February 1982, six months later. The newspaper articles and the TV broadcast were substantially factual and not inflammatory. The transcript does not contain the voir dire examination of prospective jurors; hence there is no showing that any juror had even read the newspaper articles or heard the broadcast.
We hold that defendant failed in the trial court to show "so great a prejudice" created by reason of this publicity that he could not receive a fair trial in Catawba County. It follows that he has shown no abuse of discretion in the trial court's denial of his motion for change of venue.
IV.
By his assignments of error numbers 7 and 8, defendant contends the trial court erred in admitting evidence relating to a rifle bolt and in denying his motion for a mistrial after the evidence was admitted. We find no merit in these assignments.
The evidence tended to show that the rifle bolt complained of was found at or near the site where Marlowe's body was found. Captain Price of the Catawba County Sheriff's Department testified that the bolt, along with certain other items, were found in the snow near the body; that the bolt was placed in an envelope, and another officer's initials were written on the envelope; that the bolt was sent to the SBI laboratory in Raleigh for examination; and that it was later returned to the sheriff's department where it was kept in a locked compartment until the date of trial. On cross-examination, Captain Price stated that he did not send or take the envelope containing the bolt to Raleigh, that he did not know what was done with it in Raleigh, that he did not personally receive the envelope when it was returned to the sheriff's department, and that he had not had continuous possession of the envelope since its return from Raleigh. Captain Price did testify that he saw the bolt at the scene, that the bolt "appears to be the same one" which he observed at the scene, and that it "does ... look like the same one." Over defendant's objection the court admitted the bolt into evidence.
Defendant argues that the bolt should not have been admitted for the reason that the state failed to show a proper chain of custody. We perceive no error in its admission. There was no evidence connecting the bolt with defendant or any weapon owned or possessed by him. The bolt's significance was its location near the body of the deceased, not characteristics intrinsic to the bolt itself. Its location tended to corroborate Sigmon's testimony that the fatal attack took place outside the house.
The bolt's location had already been well established, without objection by defendant, by Captain Price's description of its location illustrated by photographs of the bolt taken at the scene. Finally, the bolt was sufficiently identified by Captain Price as being the one he observed at the scene so that a chain of custody foundation was not in any event required for its admissibility. State v. Hunt, 305 N.C. 238, 247, 287 S.E.2d 818, 824 (1982); State v. Silhan, 302 N.C. 223, 250, 275 S.E.2d 450, 471 (1981); State v. Moore, 301 N.C. 262, 272, 271 S.E.2d 242, 248 (1980); 1 Brandis on N.C. Evidence sec. 117 n. 2 (2d rev. ed. of Stansbury's N.C. Evidence 1982) (hereinafter "Brandis").
Since the court did not commit error in admitting evidence relating to the bolt, there was no error in denying defendant's motion for a mistrial based on the admission of that evidence.
V.
Defendant argues that he was also entitled to have his motion for a mistrial allowed for the reason that the court erroneously allowed Captain Price to testify with respect to his appearance before the Grand Jury. He further argues that since G.S. 15A-623(e) provides that "Grand Jury proceedings are secret and ... all persons *200 present during its sessions shall keep its secrets and refrain from disclosing anything which transpires during any of its sessions," the court violated the public policy of this state in allowing Captain Price's testimony.
The witness testified that he went before the Grand Jury on or about 31 August 1981 in connection with the case at hand, that he could identify state's exhibit 16 as an indictment for first degree murder returned by the Grand Jury on 31 August 1981, and that he served the indictment on defendant on 15 December 1981.
We find no merit in defendant's argument. It appears that the sole purpose in asking Captain Price about his Grand Jury appearance and his service of the indictment was to establish the dates thereof and to show that Fred Sigmon was the first person arrested for the murder in question. Captain Price said nothing about his testimony before or any other "proceedings" of the Grand Jury which must under the statute be kept secret. Except for the exact date of his appearance before the Grand Jury, Captain Price's testimony at trial involved matters of public record.
VI.
By his ninth assignment of error, defendant contends the trial court erred in allowing the district attorney "to examine the State's principal witness concerning his prior record and lack of record for crimes of violence."
Fred Sigmon, defendant's partner in the planned robbery, was the state's principal witness. At the close of his direct examination the following questions and answers appear:
Q. Now Mr. Sigmon, what have you ever been convicted for?
MR. BRACKETT: Objection.
COURT: Overruled. [EXCEPTION NO. 14]
A. I have been convicted of back a long time ago of breaking and entering.
Q. You recall what year that was.
A. No, I do not. Back in the early 60s.
Q. What else?
A. Well, I was, that was one incident and then I was arrested and don't know how long ago, it has been for participating in a safe robbery but since 1969, I have not been into any matters or things at all.
Q. Were you convicted of participating in the safe robbery?
A. Yes.
Q. What year was that.
A. No, I was not convicted for it. I am sorry.
Q. Have you been convicted of anything other than the breaking and entering that you mentioned?
A. No, except public drunk, that is all.
Q. You ever been convicted of any crimes of violence?
A. No, sir.
Defendant now complains of the admission of all of this testimony.
Defendant objected to the question, "Now Mr. Sigmon, what have you been convicted for?" His objection raises the evidentiary question of whether the state may enhance the credibility of its witnesses by showing on their direct examination that they have no criminal record, or that their criminal record is relatively insignificant. We think it is permissible for the state, or for that matter the defendant, to do so. "In whatever way the credit of the witness may be impaired, it may be restored or strengthened by ... evidence tending to insure confidence in his veracity and in the truthfulness of his testimony." Jones v. Jones, 80 N.C. 246, 250 (1879), quoted in 1 Brandis sec. 50, at 188; see, generally, 1 Brandis sec. 50. Since a witness may be impeached by cross-examination about prior criminal convictions, 1 Brandis secs. 111-12, we think it is permissible for the party calling the witness to examine him on the absence of such convictions in order to enhance his credibility. The trial judge, therefore, properly overruled defendant's objection.
Defendant raises a second evidentiary question when he argues that Sigmon's *201 lack of convictions for crimes of violence was impermissibly offered to prove that it was more likely that defendant, and not Sigmon, murdered Marlowe, as Sigmon testified. Defendant specifically asserts "that evidence of the character of a person who is not a party cannot be introduced to prove that he did or did not do a particular thing, even if he is a witness." 1 Brandis sec. 105 Defendant did not object, however, to the question about Sigmon's prior convictions for crimes of violence. Thus, he may not complain of the elicited response on appeal. "When there is no objection to the admission of evidence, the question of its competency is foreclosed on appeal." State v. Stepney, 280 N.C. 306, 316, 185 S.E.2d 844, 851 (1972); N.C.R.App.P. 10(b)(1); 1 Brandis sec. 27. Had defendant objected to the question, his objection would have been waived in any event by defendant's own extensive cross-examination of Sigmon on his prior criminal record and other specific acts of misconduct. See State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976).
VII.
By his tenth assignment, defendant contends the trial court erred in permitting the district attorney to ask a leading question "on the crucial element of identification." There is no merit in this assignment.
This assignment relates to the testimony of John Rudisill, a neighbor of the victim. Rudisill testified: He lived about one-half mile from Marlowe. Late in the day in question he saw an automobile parked near a small road a short distance from his house. Sometime later he heard Marlowe call out, "Oh, Lordy, Oh, Lordy, don't do that." Soon thereafter he saw two men running through the woods to the parked car. Rudisill blocked the road with his truck. The two men who had entered the parked car rode up to where he had the road blocked. One of the men, whom Rudisill identified as defendant, told Rudisill to "move that damn truck." As Rudisill was moving his truck, defendant stood on the fender, pointed a pistol at Rudisill's ear and snapped it two or three times. Defendant took the keys to Rudisill's truck from him and drove away with them.
On cross-examination, defense counsel questioned Rudisill about defendant's appearance on the night in questionhow he was dressed and whether he was clean-shaven or had a beard. Rudisill testified that defendant was clean-shaven "like he is today." He then testified that the police showed him some pictures of defendant with long hair and a beard but he "could not identify him then. He had the long hair and beard." On redirect examination by the district attorney, the witness was asked:
The reason you could not pick Mr. Dellinger out sometime ago was when you were shown the pictures, he had a beard and long hair, is that not right.
Over objection, the witness answered "yes."
Of course the question was a leading one but we can perceive no prejudice to defendant for the reason that just before he answered this question Rudisill had stated positively on cross-examination that he could not identify defendant from the photographs because "[h]e had the long hair and beard." It is incumbent upon an appellant to show not only error but that the error prejudiced him. State v. Brown, 271 N.C. 250, 156 S.E.2d 272 (1967).
VIII.
By his eleventh assignment of error defendant contends the trial court erred in admitting testimony of Faye Swink about a trip she allegedly made with defendant to Shelby, North Carolina. This assignment has no merit.
Defendant complains that the court, over his objection, permitted Faye Swink to testify that after 23 January she accompanied defendant to Shelby, North Carolina, where they checked in at a motel. Defendant had a gun with him. While the two of them were facing a mirror, defendant said "I done killed one damn man and I will blow your damn head off." Defendant then shot the mirror and "blew it all to pieces." He *202 argues the evidence was irrelevant because the witness did not say in what year the event occurred and the evidence insofar as it showed he committed other criminal offenses was an attack on his character, impermissible because he did not take the stand or otherwise put his character in issue.
We reject both of defendant's arguments. The transcript discloses that before giving the testimony summarized above, Ms. Swink testified that she met defendant in the late sixties. She was "living with or staying with" defendant on 22 January 1970. On this night Fred Sigmon was with defendant when he picked her up at a grill. While defendant was at the grill she saw him wash his hands. Defendant said "he had to get the damn blood off of his hands." Thereafter she accompanied defendant to a drive-in where defendant stated that "I killed the damn man." Defendant had a handful of money "all wadded up" with him. She and defendant spent the remainder of that night together. It was then, after the date 22 January 1970 had been referred to several times, that the witness was asked about a trip to Shelby after "the 23rd of January." Considered in the context of the testimony of Ms. Swink that preceded the challenged testimony, we think it clear that she was referring to January 1970.
As to the argument that the testimony reflected adversely on defendant's character in that it tended to show the commission of another offense, such as assault or destruction of property, we think the evidence was admissible to show defendant's quo animo. See State v. May, 292 N.C. 644, 235 S.E.2d 178, cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288 (1977). "Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused. [Citations omitted.]" State v. McClain, 240 N.C. 171, 175, 81 S.E.2d 364, 366 (1954). Here the state had the burden of showing that defendant intentionally and with malice killed Marlowe. This evidence was probative and admissible on the issue of the existence of these elements.
IX.
Defendant's final assignment of error is that the trial court erred in denying his motion to dismiss the case at the close of all evidence for insufficient evidence. Defendant's counsel concedes that there is no merit in this assignment and we agree. The evidence was more than sufficient to show every element of the offense with which defendant was charged and for which he was tried and convicted.
We conclude that defendant received a fair trial, free from prejudicial error.
NO ERROR.
FRYE, J., did not participate in the consideration or decision of this case.
NOTES
[2] Defendant was serving a twenty-year sentence following his conviction in United States District Court in 1970 of bank robbery.
[3] The record does not indicate what these proceedings were. Perhaps the district attorney used the procedure prescribed by G.S. 15A-771, a statute captioned, "Securing attendance of defendants confined in federal prison."
[4] According to Judge Johnson's 11 January 1982 order discussed infra in text, Judge Mills "excluded a portion of the time from the Speedy Trial Act" but there is no indication in the record on appeal what portions of time Judge Mills excluded or for what reason. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341396/ | 495 S.E.2d 289 (1998)
269 Ga. 67
BROWN
v.
The STATE.
No. S97A1592.
Supreme Court of Georgia.
February 9, 1998.
Stephen R. Yekel, Savannah, for Robert Dennis Brown.
Spencer Lawton, Jr., Dist. Atty., Jon Hope, Asst. Dist. Atty., Savannah, Patricia Beth Attaway, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.
BENHAM, Chief Justice.
Robert Dennis Brown brings this appeal from his convictions of murder, armed robbery, possession of a firearm during commission of a crime, and obstruction of an officer *290 by giving a false name.[1] The evidence presented at trial by the State showed that Brown's co-defendant, Christopher Washington, arranged to buy marijuana from Kwesi Haven while Haven and Tolli Mosley, the victim, ate breakfast at a restaurant. Haven and Mosley left to pick up the marijuana and Mosley's gun, and made arrangements to meet Washington. The four men eventually went to a rural area to complete the transaction. Because someone was watching from a nearby home, Haven got in Washington's car and Brown got in Mosley's car. Haven then heard Mosley yell, saw that he appeared to be struggling, and heard a gunshot. Washington then displayed a pistol and demanded the marijuana. Haven surrendered the marijuana, heard another shot, got out of the car, and ran into some bushes, from which vantage point he saw Brown get into Washington's car just before Washington drove away. Haven then went to Mosley's car, where he found Mosley bleeding from gunshot wounds. He took Mosley's gun, and another which he found on the floor of the car with Mosley's, and hid them in bushes from which they were later retrieved by police officers. Neither of those was the murder weapon. Mosley had been shot three times and died from a wound to his chest. Haven, once he found out Mosley had died, told the police about the drug deal and gave Washington's name. He identified Washington's and Brown's photographs in separate photo spreads. Brown's fingerprints were found on the passenger-side window of Mosley's car. When he was first questioned by a police officer, Brown gave the name "Jerrod Ware."
On appeal, Brown contends that the trial court erred in denying his motion for a directed verdict of acquittal; in refusing to charge on voluntary manslaughter, involuntary manslaughter, and mutual combat; and in charging on conspiracy. For the reasons that follow, we find no merit in Brown's arguments and affirm his convictions.
1. "It is well-settled in Georgia that there is no error in denying a defendant's motion for a directed verdict of acquittal where the evidence is sufficient to authorize a rational jury to find a defendant guilty beyond a reasonable doubt. [Cits.]" Blackwell v. State, 264 Ga. 517, 448 S.E.2d 359 (1994). The evidence set out above was sufficient to authorize a rational trier of fact to find Brown guilty beyond a reasonable doubt of murder, armed robbery, possession of a firearm during commission of a felony, and giving a false name. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Johnson v. State, 266 Ga. 775, 470 S.E.2d 637 (1996); Turner v. State, 267 Ga. 149(1), 476 S.E.2d 252 (1996); Brown v. State, 224 Ga.App. 42, 479 S.E.2d 454 (1996). Thus, there was no error in denying Brown's motion for directed verdict. Blackwell, supra.
2. In his second enumeration of error, Brown complains of the trial court's failure to give charges on voluntary manslaughter, involuntary manslaughter, and mutual combat. The only one of those charges which was requested by Brown was on felony-grade involuntary manslaughter, causing death "without any intention to do so by the commission of an unlawful act other than a felony." OCGA § 16-5-3(a). Brown does not identify in his brief what "unlawful act other than a felony" which would be shown by the evidence in this case, and our review of the evidence reveals none: Mosley *291 was shot three times at close range, either in the course of an armed robbery or an aggravated assault, both of which are felonies. Since there was no evidence that Mosley's death was caused by any unlawful act other than a felony, there was no error in refusing to charge on involuntary manslaughter. Smith v. State, 267 Ga. 502(4), 480 S.E.2d 838 (1997).
"Absent a written request for a charge on a lesser included offense, made at or before the close of the evidence, the failure to so charge is not error. [Cit.]" Howe v. State, 250 Ga. 811(2), 301 S.E.2d 280 (1983). Since Brown did not request a charge on voluntary manslaughter, the trial court did not err in failing to give that charge. Likewise, since Brown failed to request a charge on mutual combat, there was no error in the trial court's failure to give that charge. Holcomb v. State, 268 Ga. 100(6), 485 S.E.2d 192 (1997).
3. Brown's final argument on appeal is that the trial court erred in charging the jury on conspiracy because there was no evidence of a conspiracy between Brown and Washington.
In order to establish a conspiracy, the "state need only prove that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective." [Cit.]. A conspiracy may be inferred from "the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances." [Cit.].... "When the evidence tends to show a conspiracy, a charge upon the subject is not error even if not alleged in the indictment." [Cit.]. Indeed, "the trial court has a duty, even in the absence of a request, to charge the jury the law as to every substantial and vital issue in the case...." [Cit.].
Agnew v. State, 267 Ga. 589(2), 481 S.E.2d 516 (1997). The evidence that Brown and Washington acted together in arranging a drug transaction, that each of them was armed and used his weapon (Washington to rob Haven and Brown to kill Mosley), and that they departed together after committing armed robbery and murder, permits an inference that they had a mutual understanding to pursue a criminal undertaking. Thus, under the rule stated in Agnew, supra, the trial court did not err in charging the jury on conspiracy.
Judgment affirmed.
All the Justices concur.
NOTES
[1] The crimes were committed on July 28, 1995, and Brown was indicted on May 22, 1996, for malice murder, felony murder, armed robbery, possession of a firearm during commission of a felony (murder), two counts of aggravated assault, possession of a firearm during commission of a felony (aggravated assault), and giving a false name. A trial conducted on June 10-13, 1996, resulted in convictions for malice murder, armed robbery, two counts of possession of a firearm during commission of a felony, aggravated assault, and giving a false name. Brown was acquitted of one count of aggravated assault and no verdict was returned on the felony murder count. He was sentenced to life imprisonment for the murder, 20 years (consecutive) for armed robbery, five years (concurrent) for possession of a firearm during commission of a felony, and 12 months (concurrent) for giving a false name. No sentence was imposed for the aggravated assault and the second count of possession of a firearm during commission of a felony. Brown's motion for new trial, filed July 12, 1996, was denied April 8, 1997, and his notice of appeal was filed May 7, 1997. The appeal was docketed in this court on June 25, 1997, and was submitted for decision on the briefs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341328/ | 495 S.E.2d 748 (1998)
Jessica D. FENZ, a minor, by her Guardian ad litem, John B. GLADDEN, and Sally A. Fenz, Plaintiffs,
v.
John R. DAVIS, Defendant.
No. COA97-461.
Court of Appeals of North Carolina.
February 17, 1998.
*749 Joynes Marcari, P.A. by Donald W. Marcari, Kitty Hawk, for plaintiff-appellants.
Dunn, Dunn, Stoller & Pittman, L.L.P. by Andrew D. Jones, New Bern, for defendant-appellee.
JOHN C. MARTIN, Judge.
Plaintiffs filed this action to recover damages for injuries allegedly sustained by the minor plaintiff, Jessica Fenz, when the van in which she was a passenger was struck from the rear by a vehicle driven by defendant. Defendant admitted that he was negligent and the case proceeded to trial on the issue of damages before Judge Ragan at the 13 May 1996 civil session.
Briefly summarized, the evidence tended to show that Jessica, who was three years old at the time of the collision, was seated on the rear bench seat of the van with her two sisters; plaintiff Sally Fenz, her mother, was *750 seated on the floor in front of the bench seat. None of the passengers in the rear of the van were restrained with seatbelts or child safety seats. Upon impact, Jessica's head was thrust forward and struck her mother's head. A CT scan and x-rays disclosed that Jessica had a bruise around her right eye, a small bruise to the frontal lobe of her brain, and a fracture of the bone above her right eye. She was hospitalized for observation for twenty-three hours. A neuropsychologist testified that Jessica had sustained permanent impairments in her frontal lobe functions. Plaintiff Sally Fenz testified that her daughter had required speech therapy and suffered from a variety of developmental and emotional difficulties, including loss of sleep, depression, and difficulty in school as a result of her injuries. It was stipulated that Jessica's medical bills totaled $6,391.35.
The jury returned a verdict on 16 May 1996 awarding Sally Fenz $6,391.35 for Jessica's medical expenses and awarding Jessica $1,500.00 for her personal injuries. Judge Ragan entered a judgment upon the verdict on 30 May 1996. In apt time, plaintiffs moved for a new trial pursuant to G.S. § 1A-1, Rule 59. The motion was heard by Judge Parker at the 19 August 1996 civil session. Judge Parker denied the motion and plaintiffs appeal.
I.
The notice of appeal in this case reads as follows:
Plaintiff, Jessica D. Fenz, a minor by her Guardian ad litem, John B. Gladden, hereby gives notice of appeal to the Court of Appeals of North Carolina from the order entered in open court on August 19, 1996 in the Superior Court of Dare County, said order being signed by the Honorable J. Richard Parker on August 22, 1996, and filed with the Clerk of Court for Dare County on August 22, 1996, the court denying plaintiff's Rule 59 motion to set aside the verdict and grant a new trial.
N.C.R.App.P. 3(d) requires that the notice of appeal specify the party taking the appeal and designate the judgment or order from which the appeal is taken. A notice of appeal from an order denying a motion for a new trial which does not also specifically appeal the underlying judgment does not present the underlying judgment for review. Von Ramm v. Von Ramm, 99 N.C.App. 153, 156, 392 S.E.2d 422, 424 (1990) (citing Chaparral Supply v. Bell, 76 N.C.App. 119, 331 S.E.2d 735 (1985)). "Without proper notice of appeal, this Court acquires no jurisdiction." Brooks v. Gooden, 69 N.C.App. 701, 707, 318 S.E.2d 348, 352 (1984). The notice of appeal filed in this case did not give proper notice of appeal from the underlying judgment entered upon the jury verdict and gives this Court jurisdiction only to review the minor child's appeal of Judge Parker's order denying plaintiffs' motion for a new trial. Von Ramm, supra. To the extent the record on appeal purports to assign error to the trial proceedings and to appeal from the judgment entered upon the jury verdict, such appeal must be dismissed.
II.
With respect to the appeal from Judge Parker's order denying plaintiffs' Rule 59 motion for a new trial, we first note that notice of appeal was given on 12 September 1996, and the court reporter certified that the transcript was delivered to plaintiffs on 6 December 1996. N.C.R.App.P. 11 provides for settlement of the proposed record on appeal, or service thereof on the appellee, within thirty-five days after the reporter's certification of delivery. The proposed record in this case was served on appellee's counsel on 25 March 1997, one hundred and nine days after the reporter's certification. The record on appeal does not disclose that any extensions of time were granted by the trial court. The Rules of Appellate Procedure are mandatory and failure to comply with them subjects an appeal to dismissal. Wiseman v. Wiseman, 68 N.C.App. 252, 314 S.E.2d 566 (1984). The burden is upon the appellant to show that the proposed record has been served and settled in compliance with the rules. McLeod v. Faust, 92 N.C.App. 370, 374 S.E.2d 417 (1988). Nothing appears in the record before us to explain the delay in settling the record in this case. Nevertheless, in the exercise of our discretionary *751 power under N.C.R.App.P. 2, we will consider the appeal.
Appellate review of an order of a trial court granting or denying a new trial pursuant to G.S. § 1A-1, Rule 59 is limited to the question of whether the record discloses a manifest abuse of discretion or that the ruling was clearly erroneous. Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982); Pinckney v. Van Damme, 116 N.C.App. 139, 447 S.E.2d 825 (1994). "`[A]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge's ruling probably amounted to a substantial miscarriage of justice.'" Burgess v. Vestal, 99 N.C.App. 545, 550, 393 S.E.2d 324, 327, disc. review denied, 327 N.C. 632, 399 S.E.2d 324 (1990) (quoting Britt v. Allen, 291 N.C. 630, 231 S.E.2d 607 (1977)).
Plaintiffs' motion alleged as grounds for relief jury misconduct, G.S. § 1A-1, Rule 59(a)(2); manifest disregard by the jury of the court's instructions, G.S. § 1A-1, Rule 59(a)(5); and inadequate damages appearing to have been given under the influence of passion and prejudice, G.S. § 1A-1, Rule 59(a)(6). In support of the motion, plaintiffs offered the affidavit of a juror, who stated that some of the jurors, including himself, were of the opinion that the minor plaintiff's parents were partly at fault for the severity of her injuries because the minor plaintiff was not in a child safety seat. The juror stated:
I considered all the evidence presented at the trial in determining the damage award in addition to my belief that the parent's (sic) were contributorily negligent in the above stated manner and I believed that a smaller monetary award for the minor child than was sought by either the plaintiffs or the defendant was appropriate.
As a general rule, a juror may not testify as to any matter which occurred during the jury's deliberation, or to the effect which anything may have had upon his mind or emotions, or that of any other juror, as influencing the verdict, or to the mental processes by which the juror determined to assent to or dissent from the verdict. N.C.Gen.Stat. § 8C-1, Rule 606(b). However, Rule 606(b) "permits testimony by a juror as to whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Pinckney at 148, 447 S.E.2d at 831.
[E]xtraneous information is information dealing with the [parties] or the case which is being tried, which information reaches a juror without being introduced in evidence. It does not include information which a juror has gained in his experience which does not deal with the [parties] or the case being tried.
State v. Rosier, 322 N.C. 826, 832, 370 S.E.2d 359, 363 (1988).
The juror's affidavit in this case does not disclose that any extraneous information about the parties or the case was brought to the attention of the jurors. Information concerning the manner in which the child and her mother were seated in the van was put in evidence by plaintiffs; the effect of that evidence upon the minds, emotions, or mental processes of the jurors, based on their life experiences, is not a proper subject for juror testimony under G.S. § 8C-1, Rule 606(b). See Berrier v. Thrift, 107 N.C.App. 356, 420 S.E.2d 206 (1992), disc. review denied, 333 N.C. 254, 424 S.E.2d 918 (1993). Therefore, the juror affidavit provides no basis for a showing of juror misconduct, that the jury disregarded any instructions of the court, or that the damage award was the result of passion or prejudice.
Moreover, it does not appear the jury misunderstood the court's instructions; the award for compensatory damages for medical expenses incurred by Sally Fenz for treatment of the minor plaintiff's injuries was precisely the amount to which the parties had stipulated. Finally, we reject plaintiff's contention that the damages were so clearly inadequate as to have been the product of bias, prejudice, or compromise. Although plaintiff's neuropsychologist opined that the effects of the injury were permanent, his testimony was vigorously cross-examined and he acknowledged that he had seen her only twice and that some of the indicia of permanent *752 injury present upon his first examination had disappeared by the time of the second examination. The jury was free to accept or reject plaintiff's evidence regarding the severity or permanency of Jessica's injuries. See Smith v. Beasley, 298 N.C. 798, 259 S.E.2d 907 (1979).
In summary, we hold plaintiff has not carried her heavy burden of showing a manifest abuse of discretion on Judge Parker's part in his refusal to grant a new trial on the issue of damages in this case. His order denying plaintiffs' Rule 59 motion is affirmed.
Dismissed in part; affirmed in part.
JOHN and SMITH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341324/ | 495 S.E.2d 176 (1998)
STATE of North Carolina
v.
Michael J. RAYNOR, Defendant.
No. COA97-98.
Court of Appeals of North Carolina.
January 6, 1998.
*177 Attorney General Michael F. Easley by Assistant Attorney General John J. Aldridge, III, for the State.
Joseph E. Stroud, Jr., Jacksonville, for defendant-appellant.
TIMMONS-GOODSON, Judge.
Defendant Michael J. Raynor was indicted for robbery with a dangerous weapon, first degree kidnapping, felonious possession of stolen goods, and possession of a firearm by a felon on 28 May 1996. This matter came on for hearing before Judge James E. Ragan, III and a duly empaneled jury during the 26 August 1996 criminal session of Onslow County Superior Court.
The State's evidence tended to show that on 20 January 1996, when Frank Mordica, Jr. responded to a ringing doorbell at his residence in Jacksonville, North Carolina, two men shoved a 9 millimeter handgun into Mordica's face and ordered him back into the house. The two men followed Mordica into the house, and demanded money. Mordica told the men that his wallet was in the bedroom, and in response, the men put the gun to the back of Mordica's head and held onto his pants as they moved Mordica to his bedroom to get the wallet. Once in the bedroom, Mordica took all of the cash from his wallet (approximately $50.00), and gave it to the men. The men, then, instructed Mordica to sit on the bed. The shorter of the two men held the gun on Mordica, while the taller of the two men proceeded to tear cords from the electrical equipment. Next, the men escorted Mordica at gunpoint into the kitchen area of the residence, with the taller man holding the gun. After reaching the kitchen, the men took Mordica's car keys. The taller man, again gave the gun to the shorter man, and attempted to tie Mordica to *178 a kitchen chair. Mordica, however, fought and was able to overcome the shorter man, who held the gun, and took the weapon from him. During the struggle, the taller man jumped on Mordica's back, but Mordica was able to push him off. One round was discharged from the gun during the scuffle, but did not hit anyone.
The two men were able to extricate themselves from the fray and fled the residence. Thereafter, Mordica called the Jacksonville Police Department and reported the incident. When the police arrived, Mordica gave the officers a description of the robbers. They both had worn black jackets and bandanas. The taller of the two men wore a yellow bandanna, while the shorter man wore a blue bandana over his face. The taller man had a light complexion and a scraggly beard. Mordica subsequently remembered that the shorter man had come to his home, on a previous occasion, with a mutual friend. Mordica remembered that this person had been introduced to him as Devon Jones.
Reginald Waters testified that about one or two weeks before 20 January 1996, his 9 millimeter handgun had been stolen from his Jacksonville residence. He identified the gun which Mordica had taken from his assailants as the gun stolen from his home.
Devon Jones testified that he was one of the assailants who entered Mordica's home on 20 January 1996. Jones further testified that he and defendant decided to rob someone after deciding to go to a party, but discovering that neither of them had any money. The two ultimately decided to go to Mordica's house and rob him. Jones had seen the gun used to rob Mordica in the glove compartment of defendant's car, and later made a statement to the police that defendant had told him that the gun was stolen from the Laurindale area of Jacksonville.
The jury found defendant guilty of robbery with a dangerous weapon, first degree kidnapping, felonious possession of stolen goods, and possession of a firearm by a felon. As a result, Judge Ragan sentenced defendant to a minimum of 77 months and a maximum of 102 months imprisonment for robbery with a dangerous weapon, a minimum of 100 months and a maximum of 129 months imprisonment for first degree kidnapping, a minimum of 8 months and a maximum of 12 months imprisonment for possession of a stolen firearm and a minimum of 15 months and a maximum of 23 months imprisonment for the offense of possession of a firearm by a felon. Defendant appeals.
Defendant presents four arguments on appeal, challenging the trial court's submission of and the instruction on the charge of kidnapping, the submission of the charge of felonious possession of stolen property, and the admission of certain State's evidence and exclusion of his proffered evidence. For the reasons discussed herein, we hold that defendant received a fair trial, free from prejudicial error.
Defendant first argues that the trial court committed plain error in instructing the jury on a theory of kidnapping not alleged in the bill of indictment. We cannot agree.
If at trial, a defendant fails to object to a jury instruction, that instruction is reviewable on a plain error standard on appeal. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). The plain error standard requires a defendant to make a showing that absent the erroneous instruction, a jury would not have found him guilty of the offense charged. Id.
In the instant case, defendant was indicted for the charge of first degree kidnapping in case number 96CRS3600. This indictment alleged that defendant "unlawfully, willfully and feloniously did kidnap Frank Mordica, Jr., ... by unlawfully restraining him without his consent and for the purpose of facilitating the commission of a felony: robbery with a dangerous weapon." However, the trial court instructed the jury as follows:
Now, I charge that for you to find the defendant guilty of first degree kidnapping, the state must prove five things beyond a reasonable doubt: First, that the defendant unlawfully restrained a person, that is, restricted his freedom of movement, or removed a person from one place to another; second, that the person did not consent to this restraint or removal; third, *179 that the defendant restrained or removed that person for the purpose of facilitating his commission of robbery with a firearm; fourth, that this restraint or removal was a separate, complete act, independent of and apart from the robbery with a dangerous weapon; and fifth, that the person was not released by the defendant in a safe place.
Defendant contends that this instruction was plain error in that it allowed the jury to convict him on a theory not stated in the indictment. In support this argument, defendant cites State v. Tucker, 317 N.C. 532, 346 S.E.2d 417 (1986).
In Tucker, the North Carolina Supreme Court held that the trial court erred in instructing the jury on a theory of kidnapping not charged in the indictment. The indictment in Tucker alleged that the defendant "unlawfully, willfully, and feloniously did kidnap [the victim], ... by unlawfully removing her from one place to another, without her consent, and for the purpose of facilitating the commission of the felonies of First Degree Rape and First Degree Sexual Offense." Id. at 537, 346 S.E.2d at 420. The trial court instructed the jury that they could find the defendant guilty of first degree kidnapping if they found, in pertinent part, "`that the defendant unlawfully restrained [the victim], that is, restricted [her] freedom of movement by force and threat of force.'" Id. (alterations in original). As the indictment in Tucker only allowed for a conviction on the theory of kidnapping by removing the victim from one place to another, while the charge to the jury permitted conviction on an entirely different theory not mentioned in the indictmentrestraint, our Supreme Court found that the trial court had committed plain error. Such is not the case in the instant action.
In the case sub judice, defendant's indictment alleged a theory of kidnapping based upon restraint of the victim. The jury instructions given by the trial court permitted conviction on the theory of kidnapping by restraint or removal. Tucker is, therefore, not controlling in the present case.
Our Supreme Court has established that a disjunctive instruction which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986). If, alternatively, the trial court instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied. State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990); State v. Johnston, 123 N.C.App. 292, 473 S.E.2d 25 (1996), disc. review denied, 344 N.C. 737, 478 S.E.2d 10 (1996). In State v. Fulcher, our Supreme Court stated, "unlawful removal from one place to another must involve unlawful restraint, [hence,] in any kidnapping case the State may confine the charge against the defendant to kidnapping by unlawful restraint." State v. Fulcher, 34 N.C.App. 233, 242, 237 S.E.2d 909, 915 (1977), aff'd, 294 N.C. 503, 243 S.E.2d 338 (1978).
In this case, the facts tend to show that defendant and another forcibly entered the residence of Frank Mordica, Jr., shouting and pointing a gun at him, while demanding his money. The two men, then, while holding onto Mordica's pants and holding a gun to the back of his head, forced Mordica to a bedroom in the rear of the house where his wallet was located. Upon reaching the bedroom, defendant and his accomplice took all of Mordica's money. Thereafter, the two perpetrators instructed Mordica to sit on the bed, while defendant tore cords from electrical equipment and his accomplice held a gun on Mordica. The two then directed Mordica, at gun point, into the kitchen where they took Mordica's car keys. At this point, defendant attempted to tie Mordica to a kitchen chair with electrical cords. Mordica, however, fought and was able to overcome defendant's accomplice and took the gun from him. The two perpetrators then fled Mordica's home. We hold that there was no error in the trial court's instruction that defendant could be found guilty of first degree kidnapping based upon "restraint or removal" as the evidence at trial supports conviction under *180 both the removal and restraint theories of kidnapping.
Defendant next contends that the trial court erred in submitting the charge of kidnapping to the jury, and in failing to submit the charge of attempted kidnapping. First, defendant argues that there was not sufficient evidence of the element of restraint to submit the charge of kidnapping. Instead, he contends that the evidence showed only an unsuccessful attempt to restrain the victim, so as to support an instruction on attempted kidnapping. Again, we cannot agree.
Our Supreme Court has noted that restraint or removal is inherently an element of some felonies, such as armed robbery and rape, and therefore, the restraint, confinement or removal required of the crime of kidnapping, has to be something more than that restraint inherently necessary for the commission of these other felonies. State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981); Fulcher, 294 N.C. 503, 243 S.E.2d 338. Restraint may be accomplished by restricting one's freedom of movement by confinement, or by restricting by force, threat, fraud, without confinement. State v. Moore, 77 N.C.App. 553, 335 S.E.2d 535 (1985), aff'd, 317 N.C. 144, 343 S.E.2d 430 (1986) (per curiam). Again, this Court noted in Fulcher, "unlawful removal from one place to another must involve unlawful restraint." Fulcher, 34 N.C.App. at 242, 237 S.E.2d at 915.
The facts in this case are to be distinguished from those of Irwin, wherein the Supreme Court found that the victim's removal to the back of a drug store to obtain drugs was an inherent and integral part of the attempted armed robbery. See Irwin, 304 N.C. 93, 282 S.E.2d 439. Accordingly, under the principals of Fulcher, the Court found that the defendant's removal of his victim was "a mere technical asportation and insufficient to support conviction for a separate kidnapping offense." Irwin, 304 N.C. at 103, 282 S.E.2d at 446.
Herein, the evidence tends to show that more than a "mere technical asportation" occurred (1) when defendant and his accomplice restrained and moved Mordica from the front door of his residence to a back bedroom, so that they could take the money contained in Mordica's wallet; and (2) when they then restrained and moved Mordica to the kitchen, where the two took Mordica's keys and attempted to tie up their victim. As concluded in our analysis of defendant's previous argument, there is plenary evidence that tends to show that defendant restrained his victim for the purpose of committing armed robbery. Moreover, the facts in the instant case tend to show that the restraint utilized herein was more than that inherently necessary for the commission of armed robbery.
Defendant further contends that there is no evidence that Mordica was not released in a safe place, so as to raise the charge to first degree kidnapping. See N.C.Gen.Stat. § 14-39 (1993) (providing, inter alia, that second degree kidnapping is elevated to first degree kidnapping if the person kidnapped was not released by the defendant in a safe place). This provision of section 14-39 implies some willful action on the part of the defendant to ensure that his victim is released in a safe place. State v. Jerrett, 309 N.C. 239, 262, 307 S.E.2d 339, 351 (1983).
In the case presently before us, defendant and his accomplice were overpowered by Mordica when they attempted to tie him up with electrical cords. After Mordica wrestled the gun from defendant's accomplice, the two perpetrators fled Mordica's residence. On these facts, there is no evidence of any willful action on defendant's part to release Mordica, much less ensure that Mordica was released in a place of safety.
As there was sufficient evidence to show that defendant restrained his victim for the purpose of committing armed robbery and failed to release him in a safe place, an instruction for first degree kidnapping was supported by the evidence, while an instruction for attempted kidnapping was not. Hence, this argument fails.
Defendant next argues that the trial court erred in submitting the charge of felonious possession of stolen property to the jury. Defendant contends that there was no *181 evidence that he knew or had reasonable grounds to believe the gun in his possession was stolen. We do not agree.
In order for a defendant to be convicted of the crime of possession of stolen property, the State must prove the following:
(1) possession of personal property
(2) valued at more than $400.00 (now $1,000.00)
(3) which has been stolen
(4) [with] the possessor knowing or having reasonable grounds to believe the property to have been stolen, and
(5) the possessor acting with a dishonest purpose.
State v. Davis, 302 N.C. 370, 373, 275 S.E.2d 491, 493 (1981). If the stolen property is a firearm, then the value of the property is irrelevant. State v. Taylor, 311 N.C. 380, 317 S.E.2d 369 (1984). While defendant contends otherwise, there is sufficient evidence to show that he knew or had reasonable grounds to believe that the gun in his possession was stolen, so as to support an instruction on the charge of felonious possession of stolen property.
In this case, defendant's co-conspirator, Devon Jones, testified at trial that he was with defendant at the time of the 20 January 1996 robbery; that he had previously seen the stolen gun, used in the commission of the robbery, in the glove compartment of defendant's vehicle; and that defendant had told him that the gun was stolen from the Laurindale area of Jacksonville. Moreover, the owner of the gun, Reginald Waters, testified that he lived on the Shamrock side of Laurindale; that the gun had been stolen from him sometime during the second week of January 1996; and that he had identified the gun, taken from the robber by Mordica, as being his. In light of these facts, we conclude that the trial court did not err in submitting the charge of felonious possession of stolen property to the jury.
Finally, defendant contends that the trial court's errors in admitting inadmissible evidence and excluding his proffered evidence on cross-examination resulted in cumulative prejudice to defendant and created a hostile trial environment, thereby resulting in impermissible prejudice to defendant and rendering his trial unfair. A thorough review of the record discloses no such errors, and accordingly, this argument is summarily overruled.
In light of all of the foregoing, we hold that defendant enjoyed a fair trial, free from prejudicial error.
No error.
LEWIS and WALKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341329/ | 495 S.E.2d 77 (1997)
229 Ga. App. 848
ROSE
v.
FIGGIE INTERNATIONAL, INC.
FIGGIE INTERNATIONAL, INC.
v.
ROSE.
Nos. A97A1495, A97A1496.
Court of Appeals of Georgia.
December 5, 1997.
Reconsideration Denied December 16, 1997.
Certiorari Denied March 6, 1998.
*79 Calabro & Jennette, Michael M. Calabro, Larry, Jennette, Jr., Atlanta, for appellant.
Smith, Howard & Ajax, Frederick W. Ajax, Jr., Michael D. St. Amand, James T. Brieske, Atlanta, for appellee.
Dawson & Huddleston, Patrick A. Dawson, Marietta, amicus curiae.
*78 BEASLEY, Judge.
This is a product liability action arising from an incident in which a nozzle assembly of a fire extinguisher spontaneously exploded and separated from the canister. It caused a cloud of chemicals to disperse in Margaret Rose's apartment, allegedly harming Rose. She sued the manufacturer of the fire extinguisher, Figgie International, Inc., whose motion in limine was granted so as to exclude evidence of similar spontaneous explosions of the same model extinguisher and to exclude evidence of Figgie's subsequent recall of the *80 extinguisher for a manufacturing defect that caused spontaneous explosions. At Rose's request, the court also excluded evidence of psychiatric and psychological evaluations of Rose, which diagnosed Rose as suffering from psychiatric disorders that caused her to create or exaggerate her physical symptoms. In this interlocutory appeal we hold that the trial court erred in granting both motions in limine.
Case No. A97A1495
Since 1980, Figgie has designed, manufactured, marketed, and sold a fire extinguisher known as the American LaFrance Model P-250MA. Figgie admits that in some of the fire extinguishers it manufactured between August and October 1985, the threads on the collar or spud of the extinguishers were slightly out of tolerance, meaning the diameter of the hole into which the valve was screwed was larger than it should have been. This manufacturing defect would sometimes result in the nozzle assembly spontaneously exploding and separating from the canister, the contents of which were under 190 psi of pressure. Figgie's representative testified that unless an extinguisher was improperly cross-threaded when being recharged, or had been struck sideways with sufficient force to damage the valve, the defective threading was the only reasonable explanation for a spontaneous explosion and valve separation.
Figgie's records show that by May 1990 it had received notice of over 50 incidents of spontaneous valve separation explosions involving this model. Later that month Captain Irvine of the DeKalb County Fire Department notified Figgie that four extinguishers of this model had recently exploded in DeKalb County. Figgie made no public announcements or warnings at that time.
During the night of September 4, 1990, as Rose and her children slept in their DeKalb County apartment, the nozzle assembly on their Figgie fire extinguisher model P-250MA spontaneously exploded and separated from the canister. Rose inhaled the chemicals released by the explosion while she evacuated her children from the apartment and made phone calls to get help. She alleges she suffered permanent lung damage as a result. The day following the incident, a maintenance employee of the apartment complex disposed of the exploded extinguisher without the knowledge or consent of Rose or Figgie.[1]
In May 1991, Figgie issued a notice recalling its model P-250MA extinguishers manufactured during the August through October 1985 time period and specified the serial numbers, including the serial number of Rose's extinguisher. The basis for the recall, which references Rose's and the four other explosions in DeKalb County, was the valve threading defect.
Rose sued Figgie, asserting strict liability, negligent manufacture, breach of warranty, and failure to warn. She also sought punitive damages. Figgie moved to exclude evidence of the 50 other incidents of spontaneous explosions and of the recall notice. Ruling to exclude other-incident evidence, the court explained orally that without the extinguisher Rose could not establish that the other extinguishers were substantially similar, for she could not prove that hers had the same manufacturing defect as the others which exploded. At the hearing on the motion to reconsider the ruling, the court reiterated that "without the instrumentality, I don't see how you can bring any substantially similar or any other incident in. There is nothing to compare it to.... You don't have the instrumentality to compare to any other incident." Accordingly, the court also excluded evidence regarding the recall notice. Rose appeals from these two rulings.
1. Decisions to exclude evidence of similar incidents are "reviewed for abuse of the trial court's discretion. [Cits.]" Whitley v. Gwinnett County, 221 Ga.App. 18, 20(3), 470 S.E.2d 724 (1996). But where the record indicates that the court based its decision *81 on a misapprehension of the law, reversal is appropriate. Phillips v. Drake, 215 Ga.App. 210, 211(1), 449 S.E.2d 879 (1994). See Flagg v. State, 187 Ga.App. 297, 299(2), 370 S.E.2d 46 (1988) (sentencing reversed where court misapprehended the law). This is also true where the court misapprehends the facts. Ga. Building Svcs. v. Perry, 193 Ga.App. 288, 290(1)(a), 387 S.E.2d 898 (1989) (exclusion of evidence reversed). We find the trial court based its decision on a misapprehension that the law requires the availability of the instrumentality in question to establish it had the same manufacturing defect.
(a) The court correctly held Rose must first establish that her extinguisher had the manufacturing defect at issue. Without that fact, it would be unnecessary to decide whether the 50 incidents involving other extinguishers with the defect were substantially similar. "In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity. Without a showing of substantial similarity, the evidence is irrelevant as a matter of law." (Citations and punctuation omitted.) General Motors Corp. v. Moseley, 213 Ga.App. 875, 877(1), 447 S.E.2d 302 (1994), See Mack Trucks v. Conkle, 263 Ga. 539, 544(3), 436 S.E.2d 635 (1993); Skil Corp. v. Lugsdin, 168 Ga.App. 754, 755(1), 309 S.E.2d 921 (1983). Regarding punitive damages, "evidence that appellant knew from complaints of similar incidents that the probable consequence of a certain defect would be to inflict injury was relevant to the question of malice or wanton misconduct. [Cits.]" Skil Corp., supra, 168 Ga.App. at 755, 309 S.E.2d 921. Also, "the manufacturer's knowledge of dangerous propensities is relevant to its duty to adequately warn of same. [Cits.]" Id.
The court found the absence of Rose's extinguisher precluded a showing that it had the same manufacturing defect as the other extinguishers. But "[i]t has often been held that the existence of a manufacturing defect in a products liability case may be inferred from circumstantial evidence." Firestone Tire, etc., Co. v. King, 145 Ga.App. 840, 842(1), 244 S.E.2d 905 (1978). See Folsom v. Sears, Roebuck & Co., 174 Ga.App. 46, 47, 329 S.E.2d 217 (1985). Because a product may be destroyed as a result of an incident, circumstantial evidence is particularly appropriate in product liability cases to show the manufacturing defect. For example, in King the tire blowout had destroyed the area containing the allegedly defective material so it could not be observed physically. The court reasoned that "[t]o rule that this prevented [King] 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." Id.
Similarly, in Skil Corp., a saw's blade guard did not close, injuring the plaintiff Lugsdin. Through no fault of either litigant, the saw became unavailable for inspection. Citing the evidence that the saw was new and had not been tampered with or altered, and the expert testimony that there was no other reasonable explanation for failure of the blade guard other than a defect in the saw's spring mechanism, we concluded that "[c]ircumstantial evidence may be used to establish the existence of a manufacturing defect at the time the product left the manufacturer, even where the product is consumed or destroyed in the use that resulted in the plaintiff's injury. Based upon the evidence recited above ..., there was sufficient evidence from which the jury could infer that the saw was defective when sold by the appellant-manufacturer." (Citations omitted.) 168 Ga.App. at 756-757, 309 S.E.2d 921
Thus, even without the extinguisher, Rose could use circumstantial evidence to prove it had the same threading defect as the extinguishers in the other incidents. See Central of Ga. R. Co. v. Butts, 211 Ga.App. 619, 620(1), 440 S.E.2d 218 (1993) (train car with allegedly defective window had been sold for scrap; circumstantial evidence admitted to show defect); Firestone Tire, etc., Co. v. Hall, 152 Ga.App. 560, 562-563(1), 263 S.E.2d 449 (1979) (absent the allegedly defective tire, the jury could infer from circumstantial *82 evidence that "there was no other reasonable explanation for the blowout other than a defect in the tire"); Glynn Plymouth v. Davis, 120 Ga.App. 475, 481(1), 170 S.E.2d 848 (1969) (though car unavailable, "wholly circumstantial" evidence admissible to show defective brake drums), aff'd. 226 Ga. 221, 173 S.E.2d 691 (1970); Central of Ga. R. Co. v. Keating, 45 Ga.App. 811, 814(3), 165 S.E. 873 (1932) (bridge portion destroyed in accident; other portions of bridge admissible to show wood was in rotten condition), rev'd on other grounds, 177 Ga. 345, 170 S.E. 493 (1933).
(b) Circumstantial evidence relevant to prove a manufacturing defect may include evidence of the existence of the defect in goods produced at the same plant at around the same time. Citing Browning v. Paccar, Inc., 214 Ga.App. 496, 498(1)(a), 448 S.E.2d 260 (1994), Goss v. Total Chipping, 220 Ga. App. 643, 645(1)(a), 469 S.E.2d 855 (1996), explained that such "cases involve dangerous defects in manufacturing or producing mass-produced items. A defect in one such item in its design or manufacture would necessarily occur in thousands of identical products. In such cases, proving that the defect existed in other products and caused accidents in the past is highly relevant to proving the facts of the case on trial." See Carsten v. Wilkes Supermarket of Gwinnett County, 181 Ga. App. 834, 835(1), 353 S.E.2d 922 (1987) (evidence of no complaints regarding turkeys processed at same plant at same time may show no negligence); Atlanta Coca-Cola Bottling Co. v. Burke, 109 Ga.App. 53, 58-59(1), 134 S.E.2d 909 (1964) (evidence of another Coke bottle with foreign substance admissible if shown to come unchanged from same plant); E.T. Comer Co. v. Joyner, 32 Ga.App. 661, 124 S.E. 356 (1924) (evidence of other bad salt from same storehouse admitted to show defect); Standard Cotton Mills v. Cheatham, 125 Ga. 649, 652-653(3), 54 S.E. 650 (1906) (evidence of other misaligned machines in same plant admitted to show this machine was misaligned); Central of Ga. R. Co. v. Bernstein, 113 Ga. 175, 38 S.E. 394 (1901) (evidence of other negligent blasts from same time period at same site admissible). See generally Annot., "Admissibility, in action against manufacturer, packer, or bottler for personal injury due to defective or injurious condition of article, of evidence that like products were free from, or were subject to, defective or injurious conditions," 127 A.L.R. 1194 (1940) (a "systematic method of manufacture" will likely produce same defect at other times).
Other jurisdictions agree.[2] For example Embs v. Pepsi-Cola Bottling, etc., 528 S.W.2d 703, 706 (Ky.App.1975), recites: "`Some circumstantial evidence is very strong, as when you find a trout in the milk.' There are some accidents, as where a beverage bottle explodes in the course of normal handling, as to which there is common experience that they do not ordinarily occur without a defect; and this permits the inference of a defect. This is particularly true when there is evidence in the case of the antecedent explosion of other bottles of the same product." (Citations omitted.)
(c) Figgie nevertheless argues that similar incidents are only admissible in cases alleging a design defect, and not in cases alleging *83 a manufacturing defect, as here. A design defect necessarily results in all products having the defect, whereas a manufacturing defect will only occur in those products which were improperly manufactured following design. But because a manufacturing defect involves the use of a systematic process, evidence that some goods produced during a certain time through a certain process had a defect is probative to show that other goods produced during that same time through the same process may also have the defect. See Goss, supra, 220 Ga.App. at 645, 469 S.E.2d 855; Browning, supra, 214 Ga.App. at 498, 448 S.E.2d 260. See also Davidson Oil Country Supply Co. v. Klockner, Inc., 908 F.2d 1238, 1245-1246 (5th Cir.1990) (similar incidents admissible in both design and manufacturing defects cases).
(d) Figgie next argues that Firestone Tire, etc., Co. v. King, supra, 145 Ga.App. at 843(3), 244 S.E.2d 905, prohibited the use of other incidents to demonstrate the existence of the manufacturing defect. King did not so hold. The manufacturer in King argued that the court should have granted a mistrial when a witness referred to other tire failures. The opinion does not reflect why the manufacturer considered such testimony improper. It may have been because no similarity foundation had been laid, or some other reason. Without addressing whether the testimony was wrongful, we simply held that where the trial court instructed the jury to disregard as unresponsive the testimony objected to, the court acted within its discretion in denying a mistrial.
(e) A jury could infer from the circumstantial evidence that Rose's extinguisher had the same threading defect as the extinguishers involved in the other 50 spontaneous explosions. Between 1980 and 1990 Figgie had manufactured approximately 900,000 fire extinguishers. Figgie admitted that during a specific three-month period in 1985 it manufactured 18,000 P-250MA extinguishers, some of which contained a threading defect that would cause the nozzle assemblies from these extinguishers to spontaneously explode and separate from their canisters. Such explosions, in addition to explosions caused by improper recharging, in fact occurred over 50 times. Four were in DeKalb County. Figgie eventually recalled all P-250MA extinguishers manufactured during this three-month period, identifying them by serial number. The P-250MA extinguisher which spontaneously exploded in Rose's DeKalb County apartment was identified by its serial number as manufactured by Figgie during the specific three-month period and as a product included in the recall notice. Even without the extinguisher, such circumstantial evidence is sufficient to establish Rose's extinguisher had the threading defect.
(f) Figgie points out, as the cause of the explosion, that in Rose's original complaint she alleged that on the day preceding the incident the apartment maintenance man had improperly recharged her extinguisher. Citing Strozier v. Simmons U.S.A. Corp., 192 Ga.App. 601, 602-603, 385 S.E.2d 677 (1989), Figgie argues that Rose, having failed to withdraw these allegations, is bound by them as admissions and may not attempt to prove otherwise. Figgie asserts that because an improper recharge immediately prior to the incident would virtually destroy the inference that a manufacturing defect caused the explosion, this disproves the existence of the defect in Rose's extinguisher and differentiates this explosion from the 50 other incidents.
Following substantial discovery Rose in fact had withdrawn the allegations of recharge, as conceded by Figgie's counsel at oral argument. Even though these allegations may be used as evidence against Rose, they are not conclusive, and she is free to refute or explain them. Strozier, supra, 192 Ga.App. at 603, 385 S.E.2d 677. In deposition she explained that these allegations resulted from a miscommunication with her counsel and that the extinguisher had not been moved or touched since a maintenance man checked it in 1986.
(g) The circumstantial evidence being sufficient to demonstrate a threading defect in Rose's extinguisher, the next inquiry is whether the other 50 incidents were substantially similar to the incident in question so as to be admissible to prove notice and punitive damages. Moseley, supra, 213 Ga. *84 App. at 877, 447 S.E.2d 302. In the 50 incidents, the nozzle assembly spontaneously exploded and separated in a passive environment and were not preceded by a recharging or a striking of the nozzle. These extinguishers had the threading problem and were manufactured at the same plant during the same time as Rose's. Such demonstrates substantial similarity.
2. Rose contends that the evidence of the product recall is similarly relevant. We agree. "The recall letter is admissible as long as there is first introduced some independent proof that the particular product in question suffered from the same defect. The recall letter alone is insufficient to create a jury issue of the presence of such a defect in the product. But, it is relevant on the question whether the defect was present when the [extinguisher] left the manufacturer." Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 287(2), 260 S.E.2d 20 (1979). See Browning, supra, 214 Ga.App. at 497-498(1), 448 S.E.2d 260 (lack of recall admissible to show no design defect). See also Hessen v. Jaguar Cars, 915 F.2d 641, 648-649 (11th Cir.1990) (car destroyed by fire; recall of bad fuel hose in similar cars admitted); Nevels v. Ford Motor Co., 439 F.2d 251, 258 (5th Cir. 1971) (recall for defective steering mechanism of same model car admitted). Compare Uniroyal Goodrich Tire Co. v. Ford, 218 Ga.App. 248, 258-259(5)(a), 461 S.E.2d 877 (1995) (recall not admitted because concerned a different tire), rev'd on other grounds 267 Ga. 226, 476 S.E.2d 565 (1996).
In sum, the trial court erroneously ruled that without the extinguisher there was no independent evidence that Rose's extinguisher suffered from the same defect. Other circumstantial evidence reflects that Rose's extinguisher had the threading defect. The court also erred in excluding the evidence regarding recall.
Case No. A97A1496
Figgie cross-appealed the ruling of the trial court excluding the testimony of Dr. David M. Davis, a psychiatrist, and Dr. W. James Powell, a psychologist, who would testify Rose has psychiatric disorders that explain the cause and extent of her alleged respiratory ailments. The ruling exceeded the court's discretion and requires reversal.
Soon after the explosion, Dr. Cook, a pulmonologist, began treating Rose for respiratory problems. Despite a medical history of an apneic spell, seasonal hayfever and allergies, a punctured or damaged lung, and shortness of breath, she told Dr. Cook she had never experienced any type of respiratory problems previously. He has since treated her for chronic obstruction bronchitis, or a bronchospastic disorder, which in his first deposition he could not say to a reasonable medical certainty was caused by her inhalation of the airborne material arising from the explosion incident. He testified in a later deposition that based on the lack of any prior respiratory problems, he believed to a reasonable medical certainty the explosion caused her pulmonary disorders.
The court ordered Rose to undergo an exam from a pulmonologist (Dr. Wellman) hired by Figgie. Dr. Wellman detected audible wheezes in her lungs and determined she had an obstructive airways disease. But he also determined that she made an "extremely minimal" effort to cooperate with his instructions and to exhale maximally. He concluded that "she was trying to make me think that she was actually sicker than she really is." He further opined that her lung problems were not related to the explosion.
Dr. Burton, a county medical examiner, reviewed Rose's medical records and the contents of the fire extinguisher and opined that Rose's ongoing lung problems were not related to the explosion. Rather, he felt her problems were more consistent with a sporadic asthmatic-type bronchitis, commonly associated with seasonal allergies. He also noted various references in her medical records to "functional overlay," which refers to medical problems without an organic cause but having most likely an emotional or mental cause.
Figgie then deposed Dr. Mazzeo, a neurologist who between 1992 and 1994 treated Rose four times for headaches arising from an auto accident. In addition to her headaches, Rose complained she was depressed and anxious, and Dr. Mazzeo prescribed antidepressant *85 medicine. But his examinations did not reveal any physical neurological abnormalities to explain her headaches. He diagnosed her headaches as arising from a psychiatric disorder known as somatoform, which he defined as a mental condition that causes the patient to experience physical symptoms out of proportion to any physical insult or ailment. He also noted that she craved the physician-patient interaction, and that she relished the sick role. He repeatedly recommended that she receive psychiatric treatment, which she steadfastly refused. Dr. Mazzeo personally observed no respiratory difficulties, and he did not learn that she had any respiratory complaints until the fourth visit. When asked if the somatization disorder would make Rose more likely to continue with pulmonary complaints beyond those a mentally-unimpaired person would experience, he testified this was likely, but that he would require further evaluation to apply it to her respiratory complaints.
Soon thereafter Figgie moved the court, pursuant to OCGA § 9-11-35, to compel Rose to submit to a psychiatric examination to determine whether her mental condition was causing her pulmonary complaints. Figgie submitted the affidavit of psychiatrist Dr. Davis, who deposed that based on his review of the medical records and depositions, Rose suffered from one or more psychiatric disorders related to the claims asserted in this suit. Figgie also pointed to Rose's testimony in her interrogatory responses and deposition that she had experienced mental depression since the time of the explosion, and that she was seeking recovery for mental distress. Finding that the mental condition of Rose was in controversy and that good cause existed, the court ordered her to submit to a mental examination by Dr. Davis over two days.
Based on an extensive psychiatric evaluation and a full battery of psychological tests, as well as his trained medical observations of the lack of any pulmonary distress, Dr. Davis, assisted by psychologist Dr. Powell, determined that Rose suffered from a psychiatric clinical disorder of malingering or somatoform and from a psychiatric narcissistic personality disorder with anti-social features and histrionic traits. All of these mental disorders are listed in the Diagnosis and Statistical Manual of Mental Disorders, Fourth Edition. Excerpts of the book were attached to Dr. Davis' affidavit.
Dr. Davis deposed that because of these disorders (a) Rose was intentionally producing false or grossly exaggerated physical symptoms motivated by financial compensation of the lawsuit, (b) she often exaggerated or manufactured information to overcome feelings of inferiority and to inflate her own self importance, and (c) she frequently took advantage of others to achieve her own ends. He concluded that her physical complaints were psychiatric in nature and not related to the explosion.
Figgie subsequently deposed Rose's neighbor, who testified that immediately following the explosion Rose told her that she intended to feign a respiratory illness.
Arguing that the psychiatric evidence went solely to her credibility, a matter reserved exclusively for the province of the jury, Rose moved in limine to exclude the testimony of Drs. Davis and Powell. Granting this motion, the court referred to the evidence as "an opinion that essentially says little more than she is a malingerer," which "has nothing to do with this case." Figgie appeals this order.
3. (a) "The credibility of a witness is a matter to be determined by the jury...." OCGA § 24-9-80. Georgia does not allow witnesses to opine that a party or victim is lying or telling the truth, for under this statute credibility "is a matter solely within the province of the jury. An expert witness may not testify as to his opinion of the victim's truthfulness." (Citations and punctuation omitted.) Campbell v. State, 221 Ga.App. 135, 137, 470 S.E.2d 524 (1996) See Gorski v. State, 201 Ga.App. 122, 123(2), 410 S.E.2d 338 (1991) (psychologist's opinion that victim's testimony not credible is inadmissible); Jennette v. State, 197 Ga.App. 580, 581-583(3), 398 S.E.2d 734 (1990) (expert testimony about "lying child syndrome" is inadmissible).
Drs. Davis and Powell do not opine that Rose is lying or not credible. Rather, they diagnose her as suffering from recognized *86 psychiatric disorders that have caused her to have or complain of physical symptoms out of proportion to any injuries she may have experienced. These disorders may explain the testimony of other physicians that her respiratory ailments are sporadic and lack an organic basis, and, if linked to the explosion, have continued over a much longer period of time than would normally be expected. This relates directly to the issue of causation. Did the emissions of the exploding fire extinguisher cause the injuries of which plaintiff complains?
Such evidence would also relate to damages. Having indicated that she was suffering from depression as a result of the explosion, Rose made her mental condition relevant. The extent of that depression and of her physical ailments as exacerbated by her psychiatric disorders is relevant in determining the amount of damages. The evidence is admissible pursuant to OCGA § 24-9-67. The court erred in finding the evidence "had nothing to do with this case."
(b) Rose nevertheless argues that the trial court should not have ordered the psychiatric exam in the first place. Not having appealed from that order or enumerated that order as error, Rose has "waived this issue on appeal." Wilson v. City of Atlanta, 223 Ga.App. 144, 145, n. 1, 476 S.E.2d 892 (1996). Furthermore, the trial court did not err in finding that Rose's mental condition was an issue and that there was good cause to order the psychiatric exam. The testimony of one of Rose's own treating physicians (Dr. Mazzeo) that Rose suffered from a mental disorder of somatoform that had caused or exacerbated headaches after an earlier auto collision and that might similarly cause or exacerbate her pulmonary ailments, made Rose's mental condition a relevant issue in the case and constituted substantial grounds for ordering the psychiatric exam. Also, Rose herself testified her mental depression related back to the explosion.
(c) Rose next argues that Dr. Davis' opinion that Rose is malingering is nothing more than an inadmissible opinion that she is lying. This argument fails for several reasons. First, Dr. Davis testified without contradiction that malingering is a recognized psychiatric clinical disorder. We have previously acknowledged evidence that malingering is a mental condition. Knudsen v. Duffee-Freeman, Inc., 95 Ga.App. 872, 876(2), 99 S.E.2d 370 (1957).
Second, he diagnosed its presence in her and also diagnosed her with a psychiatric narcissistic personality disorder with anti-social features and histrionic traits. Moreover, he has a background in pulmonary diseases but observed no pulmonary distress in Rose.
OCGA § 24-9-67 provides that the "opinions of experts on any question of science, skill, trade, or like questions shall always be admissible." Even if the testimony goes to the ultimate issue to be decided by the jury, expert opinion "is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. [Cits.]" Smith v. State, 247 Ga. 612, 619, 277 S.E.2d 678 (1981). Based on the uncontradicted evidence of record, the extensive diagnoses of the psychiatric disorders at issue and their impact on Rose's medical symptoms are beyond the ken of average laymen. They explain the cause and extent of the alleged injuries.
We have consistently allowed experts to testify as to malingering. "Whether appellant was feigning injury was a relevant query, and expert testimony relative thereto was properly admitted over a relevancy objection. [Cits.]" Wildstein v. Gray, 146 Ga. App. 222, 223(2), 246 S.E.2d 130 (1978). Asserting malingering as a defense in a workers' compensation action, the employer in David Jordan Logging Co. v. Sales, 203 Ga. App. 410, 411(2), 416 S.E.2d 803 (1992), had a doctor testify "he found no physical reason for the claimant's continued complaints, that some of the claimant's complaints were due to a hysterical reaction to the injury and that psychological factors could be a cause of his continued complaints." David Jordan Logging held that the ALJ improperly refused to hear evidence concerning a motive for the malingering.
Physician testimony as to whether the victim was malingering was also allowed in Drake v. Shurbutt, 129 Ga.App. 754, 755(1), 201 S.E.2d 184 (1973); Sinclair Oil Corp. v. *87 Hendrix, 119 Ga.App. 770, 771-772(2), 168 S.E.2d 862 (1969); General Gas Corp. v. Whitner, 110 Ga.App. 878, 879(4), 140 S.E.2d 227 (1965); Roberson v. Lumbermens Mut. Cas. Co., 92 Ga.App. 572, 573, 89 S.E.2d 270 (1955); Tifton Brick, etc., Co. v. Meadow, 92 Ga.App. 328, 332-333(5), 88 S.E.2d 569 (1955); Daniel v. Ford Motor Co., 88 Ga.App. 58, 60, 76 S.E.2d 66 (1953); and Ga. R., etc., Co. v. Howell, 28 Ga.App. 798, 803-804(7), 113 S.E. 101 (1922).[3]
Experts may also "express an opinion as to whether medical or other objective evidence in the case is consistent with the victim's story." (Citations and punctuation omitted.) Knight v. State, 207 Ga.App. 846, 847(1), 429 S.E.2d 326 (1993) This is not considered a direct opinion as to whether the victim is lying. Hall v. State, 201 Ga.App. 626, 627(2), 411 S.E.2d 777 (1991).
The trial court abused its discretion in ruling that the expert testimony as to Rose's malingering and other psychiatric disorders was irrelevant and inadmissible.
Judgment reversed in Case Nos. A97A1495 and A97A1496.
McMURRAY, P.J., concurs.
SMITH, J., concurs in the judgment only.
NOTES
[1] Figgie's representative initially claimed that the extinguisher was possibly returned to Figgie and discarded. In a subsequent deposition he testified that upon further review it appeared that Figgie had never received the extinguisher. Rose's daughter testified that she saw the maintenance man remove the extinguisher, which testimony Rose confirmed.
[2] See C.A. Assoc. v. Dow Chem. Co., 918 F.2d 1485, 1489 (10th Cir.1990) ("Both federal and state courts routinely permit introduction of substantially similar acts or occurrences in product liability actions to demonstrate the existence of a defect"); McGonigal v. Gearhart Indus., 851 F.2d 774, 778 (5th Cir.1988) (evidence that another grenade had exploded prematurely relevant to show this grenade was negligently manufactured); Nevels v. Ford Motor Co., 439 F.2d 251, 258 (5th Cir.1971) (admitted evidence of other loose steering mechanisms in 1967 Mustangs manufactured at same plant to show manufacturing defect); Rhodes v. Michelin Tire Corp., 542 F. Supp. 60, 62 (E.D.Ky.1982) ("few things could be more relevant in a products action than the occurrence or the non-occurrence of other accidents or failures under similar circumstances"); Gen. Motors Corp. v. Van Marter, 447 So. 2d 1291, 1293 (Ala.1984) (evidence of wiring malfunction in similar car admissible); Dura Corp. v. Harned, 703 P.2d 396, 410-411 (Alaska 1985) (admitted other exploding air tanks); Bass v. Cincinnati, Inc., 180 Ill.App.3d 1076, 129 Ill. Dec. 781, 783, 536 N.E.2d 831, 833 (1989) ("It is common sense that the higher the number of accidents involving a product the more likely it is that the product is" defective); Brown v. North American Mfg. Co., 176 Mont. 98, 576 P.2d 711, 716 (1978) (similar accidents show door defectively designed). But see Ford Motor Co. v. Phelps, 239 Va. 272, 389 S.E.2d 454, 457 (1990) (evidence of other 1981 Grenadas that stalled admissible only to show notice and not as corroboration of defect).
[3] Psychiatric evidence of malingering is also allowed in criminal cases to determine the defendant's competency or sanity. McMichen v. State, 265 Ga. 598, 606(9)(b), 458 S.E.2d 833 (1995); Taylor v. State, 261 Ga. 287, 289(1), 404 S.E.2d 255 (1991); Brown v. State, 261 Ga. 66, 69 (2)(a), 401 S.E.2d 492 (1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341336/ | 495 S.E.2d 146 (1997)
230 Ga. App. 32
DARBY
v.
The STATE.
No. A97A2571.
Court of Appeals of Georgia.
December 18, 1997.
Certiorari Denied May 1, 1998.
*147 Wallace C. Clayton, Amelia G. Pray, Austell, for appellant.
Thomas J. Charron, District Attorney, Maria B. Golick, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.
BLACKBURN, Judge.
Pursuant to a voluntary plea agreement regarding his conviction for theft by taking, Jerry Lee Darby was required to pay child support directly to his ex-wife, Gilda Lavendar Darby, as a special condition of his probation. Darby appeals the trial court's refusal to strike this special condition, contending that the condition is illegal and void. For the reasons discussed below, we affirm the trial court's denial of Darby's motion.
In determining probation conditions, "[t]he trial judge is expressly authorized by OCGA § 17-10-1(a) to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. OCGA § 42-8-35 sets forth 12 conditions which may be imposed on probation. This list, however, is not exclusive. A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved." (Citations and punctuation omitted.) Tuttle v. State, 215 Ga.App. 396, 397(2), 450 S.E.2d 863 (1994).
On November 19, 1992, Darby was indicted for the offense of theft by taking of monies belonging to Lockheed Georgia Employee's Federal Credit Union. On March 9, 1993, after paying restitution to Lockheed, Darby entered a plea of guilty to the crime pursuant to a negotiated plea agreement with the State. The trial court accepted the terms of this plea agreement, and Darby was sentenced to ten years of probation, with the special condition that he "pay [his ex-wife] Gilda Lavendar Darby the sum of two hundred ($200.00) by money order each and every Friday by 6 pm without fail for child support." The trial court also ordered that "for the payment of monies and for the protection of the public, [Darby] is to remain under the [court's] order of 10 years probation for the FULL term. The instant probation *148 is not to be terminated or relaxed in any fashion."
1. In his first enumeration of error, Darby contends that the special condition of his probation requiring child support payments was illegal and void because it was unreasonable and fails to serve a legitimate purpose. We disagree.
OCGA § 42-8-35 enumerates 12 different conditions of probation which generally may be imposed on probationers in every case. By enumerating these conditions, the legislature has provided the courts with probation conditions which bear a reasonable relation to any crime and further serve to promote the rehabilitation of prisoners and the protection of society, the two main goals of probation. Ballenger v. State, 210 Ga.App. 627, 629(2), 436 S.E.2d 793 (1993). OCGA § 42-8-35(10) explicitly states that the court may require that the probationer shall "[s]upport his legal dependents to the best of his ability." Because such a requirement ensures both that a probationer respects and fulfills his parental duties and that his children receive adequate support, it serves to foster the probationer's rehabilitation as an upstanding citizen and protects society's interest in the proper development of children. The condition that Darby pay $200 a week to his ex-wife is simply a specifically tailored exercise of the trial court's power to mandate that he support his legal dependents generally; therefore, Darby's contention that such condition was unreasonable and failed to serve a legitimate purpose is directly contrary to OCGA § 42-8-35 on its face and must be rejected.
2. In his second enumeration of error, Darby contends that the special condition of his probation requiring child support payments was illegal and void because he was not charged with child abandonment. In light of our holding in Division 1 of this opinion, we reject Darby's claim that payment of child support may be made a condition of probation only in cases of child abandonment.
3. In his third enumeration of error, Darby contends that the special condition of probation was illegal and void because he was required to make payments directly to his ex-wife rather than to an entity authorized by law to receive such payments pursuant to OCGA § 17-10-1. However, Darby failed to raise this issue in his motion to strike or at the corresponding hearing. "Therefore, there is no ruling by the trial court with regard to this issue. Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court." (Punctuation omitted.) Colley v. State, 225 Ga.App. 198, 201(3), 483 S.E.2d 355 (1997).
4. In his fourth enumeration of error, Darby contends that the terms of his probation were illegal and void because he was placed on reporting probation for a period exceeding two years in contravention of OCGA § 17-10-1(a)(2). However, as Darby knowingly and voluntarily entered into the negotiated plea agreement and accepted this condition of his probation in open court, he has waived the right to challenge this issue on appeal. Allen v. State, 258 Ga. 424, 425(3), 369 S.E.2d 909 (1988). Moreover, even if Darby had not waived this issue, OCGA § 17-10-1(a)(2) provides that "in those cases involving the collection of fines, restitution, or other funds, the period of supervision shall remain in effect for so long as any such obligation is outstanding, or until termination of the sentence, whichever first occurs." Accordingly, Darby's contention that the continuation of his probation supervision was improper must be rejected.
Judgment affirmed.
POPE, P.J., and JOHNSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341392/ | 495 S.E.2d 583 (1998)
230 Ga. App. 105
JOHNSON et al.
v.
METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
No. A97A1799.
Court of Appeals of Georgia.
January 8, 1998.
McArthur & McArthur, John J. McArthur, Athens, for appellants.
Miriam D. Lancaster, Atlanta, for appellee.
*584 JOHNSON, Judge.
Jimmy Johnson and his wife, Willie Johnson, sued Metropolitan Atlanta Rapid Transit Authority ("MARTA") for personal injuries sustained by Jimmy Johnson and for loss of consortium. The action arose from the stabbing of Jimmy Johnson by an unidentified assailant at a MARTA rail station and alleged that MARTA failed to provide adequate security to control the crowd waiting to enter the station and failed to provide sufficient trains for the crowd. The trial court granted MARTA's motion for summary judgment, and the Johnsons appeal. For reasons which follow, we affirm.
Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). "A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]" Id.
Viewed in that light, the record shows the following: Following a tractor pull event at the Georgia Dome on January 8, 1994, Jimmy Johnson, his son, a neighbor and the neighbor's son were waiting in a crowd of patrons outside the faregates of MARTA's Omni rail station to board a train. As Jimmy Johnson waited, he felt "something warm" on his back, touched his back with his hand and realized he was bleeding and had been cut. Johnson had no advance warning that he was in danger of criminal attack. Johnson alerted a MARTA police officer stationed in the faregate area who came to his aid. Neither Johnson nor anyone else could identify who stabbed him. The officer took a report and attempted to locate a suspect, but no identification or arrest was made.
In order to establish a cause of action for MARTA's negligent failure to provide adequate security and trains, the Johnsons must show that MARTA owed a duty to Jimmy Johnson to make such provisions, that MARTA breached that duty, and that the breach was the proximate cause of the injury alleged. See Robertson v. MARTA, 199 Ga. App. 681, 405 S.E.2d 745 (1991). "It is well established that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence." (Citations and punctuation omitted.) Id. at 682, 405 S.E.2d 745. In the case before us, we need not address Jimmy Johnson's status outside the faregates because his cause of action fails even under the strictest "extraordinary diligence" standard of care set forth in OCGA § 46-9-132 for passengers of common carriers.
"[A] common carrier is not required to take measures to protect its passengers from the intentional misconduct of third persons until something occurs to put the carrier on notice that such conduct might be reasonably anticipated. [Cit.] To establish reasonable foreseeability, more than the mere possibility of an occurrence must be shown, since otherwise a common carrier would be made an insurer, with absolute liability to all passengers. [Cit.]" Southeastern Stages v. Stringer, 263 Ga. 641, 643, 437 S.E.2d 315 (1993).
1. The Johnsons first allege that Jimmy Johnson's assault was foreseeable because MARTA was on notice that additional officers were needed to maintain control of the crowd. Jimmy Johnson testified that the officer who assisted him after the stabbing stated that he told MARTA more security was needed because of the number of people expected as a result of special events. According to the officer, his co-workers and supervisors were aware of problems and crowds associated with special events like the tractor pull.
However, the record indicates that security measures were in place at the Omni station. MARTA regularly assigns additional *585 officers at various locations on the rail system when special events occur which increase the patronage of a particular station or stations, and it had done so on this occasion. On the date of Jimmy Johnson's stabbing, five officers, in addition to the regular officers on duty, were assigned to the Omni station to provide additional staffing for the tractor pull crowd. Moreover, there was deposition testimony that indicates the atmosphere in the station on the day of the incident was chaotic and would have been so even if MARTA had 50 officers there. The Johnsons failed to provide any evidence showing that MARTA's security measures fell below reasonable security standards and failed to conform to the standard of care required of MARTA. See generally Reid v. Augusta-Richmond County Coliseum Auth., 203 Ga.App. 235, 237(1), 416 S.E.2d 776 (1992).
The Johnsons also allege that Jimmy Johnson's assault was foreseeable to MARTA based on a statistical summary of crimes reported at the Omni station from January 1, 1990 to January 8, 1994. However, it is undisputed that no prior violent crimes had occurred at the Omni station in the preceding three years during special events. Thus, there is no evidence in the record to show that MARTA had knowledge that the crowd conditions were likely to result in an assault upon a passenger.
Moreover, it cannot be inferred from a silent record that MARTA negligently failed to maintain an adequate number of trains to transport passengers. The Johnsons' statements, taken in the light most favorable to them, are merely conclusions and are not supported by any evidence in the record. "Allegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment. [Cits.]" Peterson v. Midas Realty Corp., 160 Ga.App. 333, 335, 287 S.E.2d 61 (1981). Since Jimmy Johnson failed to point to specific evidence giving rise to a triable issue on the matter of providing adequate security and a sufficient number of trains, the trial court properly granted summary judgment to MARTA. See generally Walker v. MARTA, 226 Ga.App. 793, 796(1), 487 S.E.2d 498 (1997) (physical precedent only).
2. Since Jimmy Johnson's appeal fails, affirmance of the trial court's grant of summary judgment is also appropriate for Willie Johnson's derivative claim for loss of consortium. See generally Henderson v. Hercules, Inc., 253 Ga. 685, 324 S.E.2d 453 (1985).
Judgment affirmed.
POPE, P.J., and HAROLD R. BANKE, Senior Appellate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341637/ | 536 S.E.2d 221 (2000)
244 Ga. App. 550
BARICH
v.
CRACKER BARREL OLD COUNTRY STORE, INC.
No. A00A0726.
Court of Appeals of Georgia.
June 22, 2000.
*223 David J. Reed, Roswell, for appellant.
Richter, Head & Shinall, Steven L. Head, Thomas J. Pavloff, Atlanta, for appellee.
*222 RUFFIN, Judge.
Mathilda Barich appeals from the trial court's grant of summary judgment in favor of defendant Cracker Barrel Old Country Store in this slip and fall case. Because there is no competent evidence that Cracker Barrel had actual or constructive knowledge of the alleged hazard, we affirm.
Barich went to eat dinner at a Cracker Barrel restaurant along with her daughter, Cheryl Menosky, her son-in-law, Tom Menosky, and her granddaughter, Katie. Hostess Tina Merrill led the family to a table. Merrill was followed by Cheryl and Katie, then Barich, and then Tom. As Barich walked toward the table, a waitress crossed in front of her "to go over to the kitchen or wherever they take their dirty dishes." After the waitress passed, Barich slipped and fell on the floor.
Neither Barich, Cheryl, nor Tom noticed any foreign substance on the floor before Barich fell. Afterward, however, all three saw butter on the bottom of Barich's shoe. Cheryl also saw butter on Barich's leg. Tom testified that he saw a "smear mark" of butter on the floor where Barich had fallen.
According to Barich, the waitress who had passed in front of her came "running over" right after the fall and said, "it's my fault, something must have fell off my tray." The waitress then cleaned the butter off of Barich. At her deposition, Barich was asked the following questions:
Q. Did [the waitress] ever say to you that something specific fell off her tray?
A. Well, the only thing I know is when she was cleaning me she said it was butter. That's all I recall.
Q. When she was cleaning you after you had fallen?
A. Yes.
Q. Did the waitress ever tell you that butter had fallen off her tray? Or did she say, as you stated earlier, something must have fallen off my tray?
A. She said something fell off her tray.
Q. I want you to be very specific if you can remember this. Did she say something fell off her tray or something must have fallen off her tray?
A. I just don't recall how she phrased it.
Cheryl testified that the waitress "had come over and apologized several times and said that the butter must have fallen off from her plate when she was cleaning up." Tom testified that he did not recall the waitress making such statement. Neither Barich, Cheryl, nor Tom knew the name of the waitress. Cheryl and Tom were able to describe her only as a white female, and Barich added that she was in her twenties and had light brown hair.
To recover for injuries sustained in a slip and fall case, the plaintiff must prove: "(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier."[1] With respect to the first element, a defendant moving for summary judgment discharges its burden by "pointing out by reference to the record that there is an absence of evidence to support the [plaintiff's] case."[2] Summary judgment is appropriate in a slip and fall case, however, "only when the evidence is plain, palpable, and undisputed, i.e., where reasonable minds cannot differ on the conclusion to be reached."[3]
1. Barich contends that Cracker Barrel had actual knowledge of the hazard because the unidentified waitress said that something *224 must have fallen from her tray. We disagree.
First, the alleged remark of the waitress is inadmissible hearsay, and we may not consider it. We have held that:
[e]vidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment. Hearsay is never admissible and has no probative value unless it comes within a recognized exception to the rule.[4]
In keeping with this principle, we have prohibited slip and fall plaintiffs from trying to create an issue of fact as to the proprietor's knowledge of a hazard by pointing to alleged statements of unknown employees who "cannot be identified, located, summoned and cross-examined."[5] This is because "evidence imputing superior knowledge only at the suggestion of a statement allegedly made by a mystery person is completely unreliable. It is the very essence of hearsay."[6] Barich cannot identify the waitress who allegedly made the statement and can describe her in only vague terms. Moreover, she makes no showing that she has ever tried to locate or identify the woman, through formal discovery or otherwise.
Relying on Watson v. Kroger Co.,[7] Barich argues that she has adequately identified the waitress. But Watson is distinguishable. There, the plaintiff's grandson testified that "after the fall, a produce department employee told him that they had been meaning to clean up the area where [the plaintiff] fell."[8] The grandson was able to identify the employee as a black male wearing an apron and working in the produce department. The store manager testified that only one employee was working in the produce department that day; he identified that employee; and the employee was deposed. Thus, although the grandson did not know the name of the speaker, the speaker was nevertheless identified such that the reliability of his alleged out-of-court statement could be tested.
Even if the statement of the unidentified waitress were admissible, it does not show Cracker Barrel's actual knowledge of the hazard. According to Barich and Cheryl, the waitress said that "something must have fell off my tray."[9] She did not state affirmatively that she knew she had dropped butter from her tray; she apparently simply inferred from the fact that Barich fell that "something" must have fallen from the tray. But "[a]n inference cannot be based on mere conjecture or possibility."[10] The fact that a restaurant employee, as opposed to the plaintiff, apparently made this inference does not make it any less conjectural. The waitress' *225 statement shows speculation, not actual knowledge.
2. Barich also contends that Cracker Barrel had constructive knowledge of the hazard. Barich may show constructive knowledge by pointing to evidence that a Cracker Barrel employee "was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard."[11] Barich fails to present evidence of constructive knowledge.
She argues that both the hostess and the unidentified waitress were in the immediate vicinity when she fell. As Cracker Barrel points out, however, there is no evidence that either employee could easily have noticed and removed the butter. Barich claims that the waitress dropped butter on the floor only moments before she slipped and fell. Under this theory, the butter had not yet fallen onto the floor when the hostesswho was leading the partycrossed the area, so she could not have noticed it.[12] And, assuming we consider the testimony of the nameless waitress, her alleged statement indicates thatif she dropped the butter at allshe had only just done so and did not realize it until after Barich fell.
Because Barich failed to present evidence that Cracker Barrel had actual or constructive knowledge of the alleged hazard, the trial court properly granted summary judgment in favor of Cracker Barrel.
Judgment affirmed.
ANDREWS, P.J., and ELLINGTON, J., concur.
NOTES
[1] Robinson v. Kroger Co., 268 Ga. 735, 748-749(2)(b), 493 S.E.2d 403 (1997).
[2] (Punctuation omitted.) Hardee's Food Systems v. Green, 232 Ga.App. 864-865, 502 S.E.2d 738 (1998).
[3] Sharfuddin v. Drug Emporium, 230 Ga.App. 679, 680(1), 498 S.E.2d 748 (1998).
[4] (Punctuation omitted.) Green, supra at 866(1), 502 S.E.2d 738.
[5] Johnston v. Grand Union Co., 189 Ga.App. 270, 271(1), 375 S.E.2d 249 (1988) (alleged statement of unidentified "red-haired" employee that there was "something wrong" with door that unexpectedly closed on plaintiff and that "if the door wasn't fixed, someone was going to get hurt" was hearsay); see also Green, supra at 865-866, 502 S.E.2d 738 (alleged statement by unidentified restaurant employee that another employee had been mopping up spilled grease or soda in area where plaintiff fell was hearsay and could not show actual knowledge by restaurant); Hagan v. Goody's Family Clothing, 227 Ga.App. 585, 586, 490 S.E.2d 107 (1997) (plaintiff's testimony that unidentified store employee told him, after he fell, that a child had vomited on the floor was inadmissible hearsay).
[6] Johnston, supra at 272(1), 375 S.E.2d 249.
[7] 231 Ga.App. 741, 500 S.E.2d 631 (1998).
[8] Id. at 742(1), 500 S.E.2d 631.
[9] Barich initially testified that the waitress said that something "must have" fallen off her tray. When pressed as to whether the waitress said something must have fallen off her tray or something had, in fact, fallen off her tray, Barich said she could not recall how the waitress "phrased it." According to Cheryl, the waitress said something "must have" fallen from the tray. In light of Barich's admitted lack of memory, the only positive evidence in the record concerning the waitress' statement is that she used the words "must have."
[10] Sharfuddin, supra at 683(3)(a), 498 S.E.2d 748; see also Lovins v. Kroger Co., 236 Ga.App. 585-586(1)(a), 512 S.E.2d 2 (1999) (no inference of actual knowledge could be made where plaintiff slipped on spinach dip and employee testified that she had set out spinach dip on table and saw no customers pass through the area).
[11] (Punctuation omitted.) Ray v. Restaurant Mgmt. Svcs., 230 Ga.App. 145, 495 S.E.2d 613 (1998).
[12] Barich does not claim that the butter was on the floor before the hostess walked by it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341638/ | 536 S.E.2d 299 (2000)
245 Ga. App. 198
SUWANNEE SWIFTY STORES, INC.
v.
NATIONSBANK, N.A.
No. A00A0701.
Court of Appeals of Georgia.
June 27, 2000.
Reconsideration Denied July 17, 2000.
Certiorari Denied January 19, 2001.
*300 Byrne, Moore & Davis, Francis X. Moore, William L. Rothschild, Atlanta, for appellant.
Troutman Sanders, Kaye W. Burwell, Herbert D. Shellhouse, Atlanta, for appellee.
BARNES, Judge.
A committee of unsecured creditors sued NationsBank, N.A., in Fulton Superior Court on behalf of Suwannee Swifty Stores, Inc., a convenience store chain that had filed for bankruptcy. The committee alleged that the bank abruptly ended its long-time practice of providing "daylight overdraft protection" in which it covered certain checks for a short time and that this abrupt change led to a cascading series of financial events that caused the company's demise. The committee's causes of action included breach of contract, breach of duty of good faith, and duress, among other things.
NationsBank removed the case to bankruptcy court and then moved for summary judgment. The bankruptcy court denied the motion, abstained from hearing the case, and remanded it to Fulton Superior Court for resolution. NationsBank again moved for summary judgment based on the waiver and release in an October 1996 contract, in which *301 Suwannee Swifty released any claims against the bank in exchange for the bank's agreement to forbear exercising its security rights against certain collateral. NationsBank also moved for summary judgment on a newly raised cause of action alleging that the contract constituted an impermissible preference under the Bankruptcy Code. The superior court granted summary judgment to NationsBank on both motions.
The committee argues on appeal that the trial court erred in granting summary judgment. For the reasons that follow, we affirm.
The October 1996 forbearance agreement acknowledged two promissory notes totaling approximately $6,450,000, on which Suwannee Swifty had defaulted. These notes were secured by certain collateral, and the bank agreed not to exercise its remedies against that collateral until January 28, 1997. In exchange for this forbearance, Suwannee Swifty waived any claims it had against the bank as follows: "Borrower releases and discharges Lender from any and all claims and causes of action, whether known or unknown and whether now existing or hereafter arising, which arise out of events which occurred prior to the date hereof."
In its order granting summary judgment on this ground, the trial court concluded that "even if factual issues remain about Nationsbank's alleged culpability in the alleged check kiting scheme" that the committee raised, the release resolved the case in the bank's favor.
[C]onstruing the evidence in a light favorable to the Plaintiff, Nationsbank offered the Plaintiff an arrangement to save itself. The Plaintiff accepted; and, under the arrangement, the Plaintiff and Nationsbank entered into loan agreements. Subsequently, on October 18, 1996, the Plaintiff and Nationsbank entered into a Forbearance Agreement regarding the outstanding loans, which contained a release of any and all claims against Nationsbank existing at that time. The claims in the Complaint existed at the time the Plaintiff signed the Forbearance Agreement containing the release. The release evidences that the Plaintiff chose to work out its financial problems rather than litigate potential claims against Nationsbank or reserve an opportunity to do so at a later time.
1. On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga.App. 802-803, 500 S.E.2d 591 (1998).
2. The committee first argues that the trial court erred by failing to discuss the earlier bankruptcy court order denying summary judgment. In El Chico Restaurants v. Transp. Ins. Co., 235 Ga.App. 427, 428-430(2), 509 S.E.2d 681 (1998), we held that a trial court erred in dismissing a complaint based on the plaintiffs' failure to obtain leave to add parties. A federal district court had previously granted permission to add parties before the case was transferred to state court, and the state court neither reconsidered nor acknowledged the district court's order.
However, while the bankruptcy court denied summary judgment to NationsBank, within the same order it then abstained from hearing the case and remanded it to the state court for resolution, recognizing that the issues involved matters of state law, not federal law.
We have recognized that "the second judge must conscientiously carry out his judicial function in any case in which he is presiding and he would not fulfill his sworn duty if he found a prior ruling to be erroneous and permitted it to control the case." Bradley v. Tattnall Bank, 170 Ga.App. 821, 824(1), 318 S.E.2d 657 (1984) (physical precedent only). Therefore the trial court did not err in ruling on NationsBank's motion for summary judgment.
3. The committee's second argument is that the trial court erred in granting summary judgment to the bank because a May 1997 bankruptcy court consent order superseded the October 1996 waiver and forbearance agreement. The May 1997 order, in addition to authorizing Suwannee Swifty's continued use of cash collateral under certain *302 conditions, gave the committee until August 31, 1997,
within which to investigate, negotiate, and if necessary, initiate and otherwise assert any and all claims as against Nationsbank..., by way of equitable subordination, offset defense, or affirmative recovery, or by claim or counterclaim or cause of action in any other jurisdiction or proceeding as may be initiated or prosecuted by the Debtor and/or the Committee, and that claims of the Estate against Nationsbank not filed by the Committee either in this Case or in another jurisdiction on or prior to August 31, 1997, shall be deemed waived....
The committee cites Peppers v. Siefferman, 153 Ga.App. 206, 265 S.E.2d 26 (1980), to support its argument that the consent order superseded the waiver. However, Peppers addressed whether a debtor's admission to owing a debt that had been discharged in bankruptcy superseded the discharge. Peppers is inapplicable to this case. The 1997 bankruptcy consent order in this case appears to be a routine agreement to allow Suwannee Swifty to continue its business operations within the constraints of its ongoing bankruptcy action, incorporating as it does three previous such orders. Further, that portion of the order allowing the committee a certain time frame within which to assert claims appears to focus on docket management rather than the merits of the committee's claims against the bank. We find no merit in the committee's argument that the consent order superseded the earlier waiver and forbearance agreement.
4. The committee contends that factual issues remain for a jury to decide whether Suwannee Swifty signed the 1996 waiver and forbearance agreement under duress sufficient to invalidate the waiver. See Kelley v. Gen. Motors Acceptance Corp., 145 Ga.App. 739, 740(2)(B), 244 S.E.2d 911 (1978). However, aside from stating that "[e]vidence [that NationsBank's conduct was legally wrong] fills the record" and citing its 16 pages of factual assertions regarding the entire history of the relationship between Suwannee Swifty and NationsBank, nowhere does the committee cite specific factual allegations on record that raise a genuine issue of material fact regarding its claim of duress that would void the 1996 waiver.
On the other hand, NationsBank submitted the affidavit of its vice president, who testified that he was personally involved in the negotiations with Suwannee Swifty's president over the 1996 waiver and forbearance agreement, which he signed on the bank's behalf. After detailing the financial details of the agreement, Dewitt testified that the final agreement, which was approved by Suwannee Swifty's board of directors,
was a product of ongoing negotiations between Nationsbank and Suwannee Swifty, which negotiations occurred on several different occasions. This bargained-for arrangement resulted in Nationsbank releasing collateral it had no obligation to release. At no time did any individual affiliated with Suwannee Swifty contend that Suwannee Swifty was forced by Nationsbank in any way to enter into the Forbearance Agreement.
"It is not duress to threaten to do what one has a legal right to do." (Punctuation omitted.) Gen. Motors Acceptance Corp. v. Bowen Motors, 167 Ga.App. 463, 467(1)(C), 306 S.E.2d 675 (1983). In this case, NationsBank had a legal right to insist on maintaining its liens on collateral securing its loans.
Business compulsion or economic duress involves the taking of undue or unjust advantage of a person's economic necessity or distress to coerce him into making a contract and is also recognized as a contractual defense. However, a duress claim of this nature must be based upon acts or conducts of the opposite party which are wrongful or unlawful.
(Citations and punctuation omitted.) Id. While the committee contends that NationsBank's earlier termination of an alleged check-kiting scheme was wrongful, making the loans that were the subject of the 1996 waiver and forbearance agreement also wrongful, the committee failed to present sufficient evidence raising a genuine issue in this regard to withstand summary judgment.
*303 One may not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement.
(Citations and punctuation omitted.) Miller, Stevenson & Steinichen v. Fayette County, 190 Ga.App. 777, 778(1), 380 S.E.2d 73 (1989).
Viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the committee, the trial court did not err in granting summary judgment to NationsBank. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).
5. Finally, the committee argues that the trial court erred in granting summary judgment to the bank on its newly added claims of improper preference and fraudulent conveyance. NationsBank responds that the committee waived its right to add new causes of action in the bankruptcy court consent order of May 30, 1997, and further argues that the bankruptcy court specifically denied the committee's motion to add these new claims.
On December 18, 1998, the bankruptcy court ruled that
[a]ny causes of action against Nationsbank... which were not asserted in actions filed by or on behalf of the committee ... on or before September 2, 1997, are deemed waived as provided in this court's order of May 30, 1997. The committee may amend or apply for permission to amend any complaint filed against Nationsbank on or before September 2, 1997 to the extent that the amendment relates to causes of action originally asserted in any such action, but may not amend to add new causes of action which existed as of May 30, 1997 and which were not asserted by September 2, 1997. A ruling on such amendment and its relation back shall be made by the court in which the case is pending based upon the substantive law and procedural rules applied by that court.
The trial court concluded that the committee had waived any right to add new causes of action in the May 1997 bankruptcy court consent order and that the committee's preference and fraudulent conveyance claims did not relate back to the initial claims.
OCGA § 9-11-15(c) provides that "[w]henever the claim ... asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth ... in the original pleading, the amendment relates back to the date of the original pleading." However, this Code section is not instructive here. "`(T)he aim of the relation back rule as to amendment contained in [OCGA § 9-11-15(c) ] is to ameliorate the impact of the statute of limitation.' Rich's v. Snyder, 134 Ga.App. 889, 892(3), 216 S.E.2d 648 [(1975) ]." Maelstrom Properties v. Holden, 158 Ga.App. 345, 346, 280 S.E.2d 383 (1981).
The issue in this case is not whether the new claims arise out of the transaction raised in the initial pleading, but whether they relate to a cause of action raised in the initial pleading. Claims of preference and fraudulent conveyance do not relate to the committee's initial causes of action, which included breach of contract, breach of duty of good faith, and duress, among others. We conclude that the trial court did not err in granting summary judgment to NationsBank on the committee's claims added by amendment.
Judgment affirmed.
BLACKBURN, P.J., and ELDRIDGE, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1341640/ | 536 S.E.2d 140 (2000)
207 W.Va. 716
Meliah Sue FARMER, Plaintiff Below, Appellant,
v.
Corina KNIGHT and Brenda Knight, Defendants Below, Appellees.
No. 26743.
Supreme Court of Appeals of West Virginia.
Submitted February 16, 2000.
Decided June 16, 2000.
Dissenting Opinion of Justice Starcher July 19, 2000.
*142 Michael A. Esposito, Esq., Esposito & Esposito, Logan, West Virginia, Attorney for Appellant.
Charles S. Piccirillo, Esq., Shaffer & Shaffer, Charleston, West Virginia, Attorney for Appellees.
PER CURIAM:
This case is before this Court upon appeal of a final order of the Circuit Court of Logan County entered on January 26, 1999. Following a trial on liability and damages for personal injuries resulting from an automobile accident, the circuit court denied the appellant and plaintiff below, Meliah Farmer, a new trial and refused to alter or amend the jury's verdict finding her 49% negligent. In this appeal, the appellant contends that the evidence does not support the jury's finding with regard to liability. She also contends that the damages awarded by the jury were insufficient and that the circuit court erred by overruling her objection to the appellees' closing argument. Finally, the appellant contends that a new trial should have been granted once it was discovered that some of the jurors may have attended high school with her.
This Court has before it the petition for appeal, the entire record, and the briefs and *143 argument of counsel. For the reasons set forth below, we affirm the final order of the circuit court.
I.
On January 15, 1992, Meliah Farmer (hereinafter "Farmer" or "appellant") telephoned her friend, Corina Knight (hereinafter "Knight" or "appellee"), and asked her for a ride home from the Pizza Hut where she was working. It had been snowing for the past few days, and although the main roads were clear, the secondary roads were ice and snow covered. Knight was driving a car owned by her mother, Brenda Knight, when she picked up Farmer. As Knight attempted to drive up the hill where Farmer's parents lived, the car began to slide. She stopped, backed the vehicle up, and attempted to go up the hill again. This time, the car slid off the road into the hillside causing Farmer to hit her head against the windshield.
Subsequently, Farmer sued Corina and Brenda Knight[1] claiming that she had suffered various bodily injuries, including a closed head injury, during the accident. Prior to trial, the appellees stipulated to medical expenses in the amount of $4,445.00 for treatment of the appellant's neck and back strain. However, the appellees did not stipulate to any past medical expenses for treatment of the alleged closed head injury.
At trial, the appellant failed to present any evidence concerning future medical treatment or future lost wages. Consequently, those claims for damages were dismissed at the close of the appellant's evidence. On September 24, 1997, the jury returned a verdict assessing 49% negligence on the part of the appellant and 51% negligence on the part of the appellees. The jury awarded the appellant $5,945.00 in total damages which included $4,445.00 in stipulated past medical expenses and $1,500.00 for past general damages, including pain and suffering, diminished ability to engage in normal activities, loss of enjoyment of life, and mental anguish. The jury awarded no damages for other past medical expenses, past lost wages, or future general damages. With the deduction for the appellant's comparative negligence, the net verdict was $3,031.95. The circuit court added prejudgment interest in the amount of $1,743 .38 and entered a total judgment of $4,775.33 by order dated January 20, 1998. Thereafter, the appellant moved for a new trial, or in the alternative, amendment of the judgment. The motion was denied by order entered on January 26, 1999. This appeal followed.
II.
As her first assignment of error, the appellant contends that the jury was clearly wrong in finding her 49% negligent. She maintains that the evidence did not support the jury's verdict. At trial, there was no dispute as to how the accident happened. Both Farmer and Knight testified that the car slid into the hillside on a second attempt to drive up the road to Farmer's parents' house. The issue for the jury to decide was whether Farmer participated in or concurred with the decision to drive up the hill. In this regard, Knight testified that Farmer never attempted to get out of the car after it slid the first time, nor did Farmer ask her not to try to drive up the hill again. Knight claimed that Farmer never said to stop the car or park at the bottom of the hill. To the contrary, Farmer testified that she told Knight to park the car at the bottom of the hill and they would walk up to her house. She said that Knight told her they could make it and did not give her time to get out of the car before starting up the hill a second time. However, Farmer conceded that she could have gotten out of the car before they tried to drive up the hill the first time.
This Court has often stated that "`"[w]hen a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it." *144 Point 4, Syllabus, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894.' Syllabus Point 2, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963)." Syllabus Point 5, Toler v. Hager, 205 W.Va. 468, 519 S.E.2d 166 (1999). In addition, we have held that "`"[i]t is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony is conflicting." Point 3, Syllabus, Long v. City of Weirton, [158] W.Va. [741], (1975) 214 S.E.2d 832.' Syllabus Point 2, Bourne v. Mooney, 163 W.Va. 144, 254 S.E.2d 819 (1979)." Syllabus Point 2, Toler. Furthermore, "`"`[w]here, in the trial of an action at law before a jury, the evidence is conflicting, it is the province of the jury to resolve the conflict, and its verdict thereon will not be disturbed unless believed to be plainly wrong.' Point 2, Syllabus, French v. Sinkford, 132 W.Va. 66 [54 S.E.2d 38]." Syllabus Point 6, Earl T. Browder, Inc. v. County Court, 145 W.Va. 696, 116 S.E.2d 867 (1960).' Syllabus Point 2, Rhodes v. National Homes Corp., 163 W.Va. 669, 263 S.E.2d 84 (1979)." Syllabus Point 3, Toler.
Based on the evidence that was presented in this case, the jury was given an instruction on assumption of the risk.[2] "The doctrine of assumed or incurred risk is based upon the existence of a factual situation in which the act of the defendant alone creates the danger and causes the injury and the plaintiff voluntarily exposes himself to the danger with full knowledge and appreciation of its existence." Hollen v. Linger, 151 W.Va. 255, 263, 151 S.E.2d 330, 335 (1966). Apparently, the jury believed that Farmer had in fact assumed some risk of injury and was almost at fault as much as Knight was for the accident. During her testimony, Farmer admitted that she was aware of the dangerous road conditions and that she had the opportunity to get out the car before Knight tried to drive up the hill the first time. Given this evidence, we do not find the jury's verdict finding that the appellant assumed the risk of injury plainly wrong.
The appellant also argues that the damages awarded by the jury were insufficient. As noted above, the parties stipulated to $4,445.00 in medical expenses for treatment of appellant's neck and back strain. An additional $1,500.00 for past general damages was awarded by the jury. Initially, the jury awarded $0 for past general damages. However, after receiving the verdict, the court instructed the members of the jury that they were required to determine a reasonable amount for pain and suffering because medical expenses had been granted. After further deliberations, the jury awarded $1,500.00 for pain and suffering. The appellant claims that the jury's verdict did not adequately compensate her for past pain and suffering, diminished ability to engage in normal activities, loss of enjoyment of life, mental anguish, and lost wages.
At trial, the appellant introduced evidence to show that she sustained a closed head injury during the accident. Specifically, the appellant presented the testimony of Dr. Jeffrey Harlow, a licensed psychologist. Dr. Harlow performed a neuropsychological assessment of the appellant and met with her on several occasions. Dr. Harlow testified that he believed that the appellant had suffered a closed head injury during the accident which caused neurophysiological dysfunction and depression.[3]
*145 The appellees disputed this evidence and argued that the appellant had only suffered minor injuries during the accident. They presented evidence which showed that the appellant was treated at Logan General Hospital on the night of the accident for a superficial laceration to the bridge of her nose. The emergency room records indicated that there was no loss of consciousness. The appellees also introduced evidence suggesting that the appellant's depression was related to family problems. Dr. John Hutton, a neuropsychiatrist who performed an independent examination of the appellant on behalf of the appellees, testified that the appellant's depression and borderline intellectual functioning were not caused by the automobile accident.
In Syllabus Point 1 of Combs v. Hahn, 205 W.Va. 102, 516 S.E.2d 506 (1999), this Court held that:
In a civil action for recovery of damages for personal injuries in which the jury returns a verdict for the plaintiff which is manifestly inadequate in amount and which, in that respect, is not supported by the evidence, a new trial must be granted to the plaintiff on the issue of damages on the ground of the inadequacy of the amount of the verdict. Syllabus point 3, Biddle v. Haddix, 154 W.Va. 748, 179 S.E.2d 215 (1971).
However, we have also held that "`[i]n an action for personal injuries, the damages are unliquidated and indeterminate in character, and the assessment of such damages is the peculiar and exclusive province of the jury.' Syllabus Point 3, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945)." Syllabus Point 4, Toler, supra. Moreover, "`[i]n an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant.' Syl. Pt. 1, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983)." Syllabus Point 1, Hewett v. Frye, 184 W.Va. 477, 401 S.E.2d 222 (1990).
After hearing all of the evidence concerning medical damages, the jury chose not to award any additional medical expenses other than those stipulated to by the parties prior to trial. Viewing the evidence most strongly in favor of the appellees, the evidence permits the conclusion obviously reached by the jury, i.e., that the appellant did not sustain a closed head injury. Likewise, the evidence supports the jury's decision awarding $0 for past lost wages. At trial, the appellant testified that she had only worked at Pizza Hut for two months prior to the accident. She had three children in the four years since the accident. There was also testimony that the appellant had suffered from depression because of family problems. From this evidence, the jury could have reasonably concluded that the appellant had not attempted to return to work for reasons unrelated to the automobile accident. Accordingly, we do not find that the damages awarded by the jury were manifestly inadequate.
The appellant's next assignment of error concerns certain remarks made by counsel for the appellees during closing argument. In particular, the appellant contends that the circuit court erred by refusing to allow her counsel to object to the following remarks made by counsel for the appellees:
I think she's been victimized by the system, by her boyfriend, by her family, by her attorney. This is a made up case with regard to the head injury.
While the circuit court refused the appellant's counsel permission to approach the bench when this statement was made, the objection was addressed after the arguments were completed and the jury was sent to the jury room for deliberations. Specifically, the court stated,
I just want to put on the record it was obvious what the objection was, and I noted it and I didn't see grounds for the objection. That's probably the strongest I've ever heard Mr. Piccirillo argue in a case, particularly in that direction, but I didn't see anything where I would have sustained an objection, but it was obvious what you were objecting to and I considered that.
The circuit court's decision to address the objection after closing arguments were completed is not unusual considering the fact that such objections are generally *146 disfavored.[4] In Syllabus Point 2 of State v. Bennett, 183 W.Va. 570, 396 S.E.2d 751 (1990), this Court stated that:
"`The discretion of the trial court in ruling on the propriety of argument by counsel before the jury will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted therefrom.' Syllabus point 3, State v. Boggs, 103 W.Va. 641, 138 S.E. 321 (1927)." Syl. Pt. 9, State v. Flint, 171 W.Va. 676, 301 S.E.2d 765 (1983).
We have also noted that "`[g]reat latitude is allowed counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury[.]' Syl. pt. 2, [in part,] State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978)." Syllabus Point 8, in part, Mackey v. Irisari, 191 W.Va. 355, 445 S.E.2d 742 (1994).
After a thorough review of the record in this case, we do not find that any prejudice or manifest injustice resulted from comments made by the appellees' counsel. As noted above, one of the primary issues in this case was whether the appellant suffered a closed head injury during the accident. The appellees vigorously contested this allegation, and the comments made by the appellees' counsel were obviously meant to convey the appellees' theory of the case. Under these circumstances, and considering the often subjective nature of the symptoms of such an injury, we do not believe that the circuit court abused its discretion by allowing the argument made by the appellees.
Finally, the appellant contends that the circuit court erred in failing to grant a new trial when "it was discovered after the trial that certain jurors failed to disclose facts during voir dire which would have indicated their inability to render a just and true verdict." The appellant's contentions in this regard are very vague and were not developed in her brief. Based on the final order, it appears that the appellant asserted that she may have attended high school with some of the jurors. There is no transcript of any hearing or any indication in the record regarding what evidence the appellant presented to the circuit court in support of her motion for a new trial on this basis. Accordingly, we decline to address this issue further. As we have previously noted, "[i]t is... well settled ... that casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue on appeal." State v. Lilly, 194 W.Va. 595, 605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995) (citation omitted).
Accordingly, for the reasons set forth above, the final order of the Circuit Court of Logan County entered on January 26, 1999, is affirmed.
Affirmed.
Justice McGRAW dissents.
STARCHER, Justice, dissenting.
(Filed July 19, 2000)
The facts in this case can be summed up quite simply: the defendant was driving her car in a careless, negligent fashion. The plaintiff, a passenger in the car, didn't vociferously object to the defendant's carelessness. More specifically, she didn't demand that the defendant immediately stop the car so she could get out.[1] Based upon this, the circuit judge let the jury decide if they thought the plaintiff was negligent. The jury decided the plaintiff was 49% negligent.
This is absurd. A person driving a car has a duty of due care to drive in a way that does not cause injury to passengers in the vehicle. A passenger does notrepeat, does not have a duty to play "backseat driver" and demand that the driver operate the car in a particular way, or jump out of the car if the driver does something that looks dangerous.
If a driver is speeding and is pulled over by a police officer, could his defense be that *147 "my passenger didn't tell me to slow down, so give her a ticket too?" The majority seems to indicate that the passenger should receive a speeding ticketusing the majority's logic, the passenger is just as culpable, simply because the passenger didn't get out of the car the instant she saw that the driver might exceed the speed limit.
I cannot accept the circuit court's actions in this case. The jury should never have been given a comparative negligence or assumption of the risk instruction.
Unfortunately, the majority opinion never reached this legal argument by the plaintiff. Instead, the majority opinion looked solely to the facts, and decided that the facts could support a finding by the jury of comparative negligenceand therefore, the jury's verdict should stand. I disagreethe problem is, the jury should never have been instructed on comparative negligence to start with. The majority opinion should have addressed that legal argument instead, and then reversed the verdict to allow a retrial without any type of comparative negligence instruction.
I therefore dissent.
NOTES
[1] The appellant alleged that Corina Knight was operating the vehicle pursuant to the Family Purpose Doctrine making Brenda Knight, her mother and owner of the vehicle, liable for any and all negligence of her daughter.
[2] The jury was instructed as follows:
Under the law of the State of West Virginia, some degree of negligence or fault may be attributed to a party for the happening of an accident where the evidence shows that the party had actual knowledge of a dangerous condition and voluntarily exposed herself to that dangerous condition, thus assuming the risk of the condition and her injury.
Therefore, if after considering all the evidence, you find by a preponderance of the evidence that a dangerous condition was created by the snow covered inclined roadway, that Meliah Farmer had actual knowledge of the snow covered roadway and the dangerous driving conditions created thereby and that she nonetheless voluntarily remained a passenger in the vehicle being operated by Corina Knight when she could have removed herself from the vehicle, then you may apportion some degree of negligence or fault to Meliah Farmer.
[3] Dr. Roger Biasas also testified by evidentiary deposition on behalf of the appellant. While Dr. Biasas' testimony was read to the jury during the trial, his testimony was not made a part of the trial transcript that was presented to this Court.
[4] See Rule 23.04 of the West Virginia Trial Court Rules.
[1] Under normal circumstances, a passenger in an automobile should never be held to be a contributor to the negligence of a driver. Admittedly, one can conjure up scenarios that might demand a different result. For example, if a passenger engaged in "horseplay" that included grabbing the steering wheel while the automobile was in operationthat passenger might be said to have contributed to a resulting accident. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2578664/ | 443 F. Supp. 2d 1154 (2006)
UNITED STATES of America, Plaintiff,
v.
Ricky T. McCOLLUM, Defendant, and
Wanda T. McCollum, Interested Person
No. 8:05CR256.
United States District Court, D. Nebraska.
August 9, 2006.
*1155 *1156 Thomas J. Kangior, Assistant United States Attorney, Omaha, NE, for Plaintiff.
Phillip G. Wright, Wright Law Firm, Omaha, NE, for Defendant.
Wanda L. McCollum, Plattsmouth, NE, Pro se.
MEMORANDUM AND ORDER
KOPF, District Judge.
This is a quirky case involving a criminal forfeiture. It presents the government's understandable desire to disrupt the use of guns and drugs and the equally understandable desire of a strong-willed, elderly woman to preserve the legitimate legacy of her deceased, but much loved husband.
Wanda L. McCollum, appearing pro se,[1] asserts that the government may not deprive her of a gun collection that she inherited from her husband even though it was possessed by her ne're-do-well son, a recently convicted felon who has agreed to the forfeiture. In addition to Mrs. McCollum's argument regarding the gun collection, she also claims to be a bona fide purchaser of some of the items sought to be forfeited that were not a part of the gun collection.
With the exception of two rifles, a receiver and all the ammunition, I rule in favor of Mrs. McCollum. I next explain why I have arrived at this decision.
I. BACKGROUND
Pursuant to 21 U.S.C. § 853(n) (criminal forfeiture and third-party interests), Mrs. McCollum filed a notarized "petition" on May 4, 2006. (Filing 75.)[2] An evidentiary hearing was held on June 15, 2006. Testimony was taken (filing 85 (witness list)) and exhibits were received. (Filing 86 (exhibit list).) A transcript (Tr.) was prepared. (Filing 89.) The parties have been given an opportunity to brief the matter. Mrs. McCollum has submitted a letter which I consider to be her brief. (Filing 91.)[3] The government has submitted a brief. (Filing 90.)
Mrs. McCollum also sent me another letter in response to the government's brief, but since I did not give her permission to submit a response to the government's submission, I will not consider it. I will send a copy of this second letter to the government's lawyers so they know what was sent to me.
Pursuant to 21 U.S.C. § 853(n)(5), I must also consider "the relevant portions *1157 of the record of the criminal case which resulted in the order of forfeiture." Having done so, the matter is now ripe for decision.
I first examine the case presented against Ricky T. McCollum (the defendant). After that, I examine the matter from the perspective of Wanda T. McCollum (Mrs. McCollum). Then, I consider the evidence presented by the government regarding Mrs. McCollum's claims.
A. The Case Against the Defendant
The defendant was charged with and pled guilty to selling a gun to a known drug user in violation of 18 U.S.C. §§ 922(d)(3) & 924(a)(2). (Filing 34 (Count I of Superseding Indictment) and Filing 63 (Plea Agreement).) Admitting the allegations of Count III of the superseding indictment, he also agreed that his interest in numerous weapons, a receiver and a lot of ammunition should be forfeited pursuant to 21 U.S.C. § 853.[4] Accordingly, I forfeited the defendant's claim to following property:
I. Ammunition, Qty: 1; MNF: other, Cal: 37
II. Ammunition, Qty: 19; MNF: Remington, Cal: 257
III. Rifle, Model: Hoban Rifle, Cal: 22, SN: 45
IV. Receiver, Model: Model 98, Cal: * *, SN: none
V. Shotgun, MNF: unknown. Receiver only, Model: unknown, Cal: * *, SN: none
VI. Ammunition, Assorted, Qty: 111; MNF: Remington, Cal: 12
VII. Shotgun, MNF: Ithaca Gun Co. Model: 51 Fetherlight, Cal: 12, SN: XXXXXXXXX
VIII. Ammunition, Qty: 188; MNF: unknown, Cal: 765
IX. Rifle, MNF: unknown, Model: McCollums, Cal: 270, SN: 003
X. Shotgun, MNF: unknown, Model: Hiawatha 130 Vr-F, Cal: 20, SN: none
XI. Shotgun, MNF: Savage, Model: 94 series M, Cal: 410, SN: C517713
XII. Shotgun, MNF: unknown, Model: SB-100B, Cal: 20, SN: B084872
XIII. Ammunition, Assorted Qty: 22; MNF: other, Cal: 257
XIV. Ammunition, Qty: 54; MNF: Remington, Cal: 7
XV. Ammunition, Qty: 1; MNF: Winchester-Western, Cal: 300
XVI. Ammunition, Qty: 6; MNF: Remington, Cal: 22-250
XVII. Ammunition, Qty: 6; MNF: Winchester-Western, Cal: 270/20
XVIII. Ammunition, Qty: 11; MNF: Winchester-Western, Cal: 308
XIX. Ammunition, Qty: 78; MNF: Federal, Cal: 30-06
XX. Ammunition, Qty: 6; MNF: Winchester-Western, Cal: 243
XXI. Ammunition, Qty: 51; MNF: Winchester-Western, Cal: 30-30
XXII. Ammunition, Qty: 11; MNF: unknown, Cal: 792
XXIII. Ammunition, Qty: 1; MNF: Winchester-Western, Cal: 220
XXIV. Ammunition, Qty: 142; MNF: Federal, Cal: 12
XXV. Ammunition, Qty: 8; MNF: unknown, Cal: 50
*1158 XXVI. Ammunition, Qty: 4; MNF: Remington, Cal: 44
XXVII. Shotgun, MNF: Harrington and Richardson, Model: 155, Cal: 45-70, SN: AM288419
XXVIII. Ammunition Components, Qty: 1720; MNF: Winchester-Western, Cal: * *
XXIX. Ammunition, Qty: 51; MNF: Federal, Cal: 12
XXX. Ammunition, Qty: 226; MNF: Remington, Cal: 12
XXXI. Ammunition, Qty: 400; MNF: other, Cal: 762
XXXII. Ammunition, Qty: 164; MNF: Winchester-Western, Cal: 12
XXXIII. Ammunition, Qty: 50; MNF: Winchester-Western, Cal: 16
XXXIV. Ammunition, Qty: 20; MNF: Winchester-Western, Cal: 20
XXXV. Ammunition, Qty: 9; MNF: Westerfield, Cal: 20
XXXVI. Ammunition, Qty: 6; MNF: Winchester-Western, Cal: 10
XXXVII. Ammunition, Assorted, Qty: 97; MNF: Remington, Cal: 22
XXXVIII. Rifle, MNF: Savage, Model: 170B, Cal: 30-30, SN: D262099
XXXIX. Rifle, MNF: Marlin Firearms Co., Model: Glenfield Model 10, Cal: 22, SN: unknown
XL. Ammunition, Qty: 28; MNF: Remington, Cal: 410
XLI. Shotgun, MNF: Laurona-Armas Eibar, S.A.L., Model: Double Barrel, Cal: ZZ, SN: 816421
XLII. Ammunition, Qty: 3; MNF: Remington, Cal: 10
XLIII. Ammunition, Qty: 10; MNF: Remington, Cal: 28
XLIV. Ammunition, Qty: 4; MNF: Fiocchi, Cal: 303
XLV. Shotgun, MNF: unknown, Model: JC Higgins 583.16, Cal: 12, SN: none
XLVI. Ammunition, Qty: 72; MNF: LC (Lake City), Cal: 30
XLVII. Ammunition, Qty: 14; MNF: Winchester-Western, Cal: 45
XLVIII. Ammunition, Qty: 22; MNF: PMC, Cal: 223
XLIX. Ammunition, Qty: 5; MNF: Winchester-Western, Cal: 44
L. Ammunition, Qty: 40; MNF: other, Cal: 6
LI. Ammunition, Qty: 50; MNF: United States Cartridge Co., Cal: 9
LII. Ammunition, Qty: 6; MNF: Winchester-Western, Cal: 380
LIII. Shotgun, MNF: Ithaca Gun Co., Model: Double Barrel, Cal: ZZ, SN: unknown
LIV. Rifle, MNF: Bellmore-Johnson Tool, Model: Bolt Action, Cal: 22, SN: unknown
LV. Shotgun, MNF: Hopkins and Allen, Model: Double Barrel, Cal: ZZ, SN: unknown
LVI. Handgun, MNF: unknown, Manufacturer Type: Revolver, Model: OFI Western Ranger, Cal: 22, SN: RR00241
LVII. Rifle, MNF: Hipoint, Model: 995, Cal: 9, SN: A20651
LVIII. Rifle, MNF: Serbu Firearms, Model: BFG-50, Cal: 50, SN: 523
LIX. Rifle, MNF: Harrington and Richardson, Model: Topper Model 158, Cal: 30-30, SN: AS205284
LX. Rifle, MNF: Ranger Arms Inc., Model: 103, Cal: 22, SN: none
LXI. Rifle, MNF: Western Arms Co., Model: 59, Cal: 22, SN: none
*1159 LXII. Shotgun, MNF: Westley, Richard, Model: Double Barrel, Cal: 16, SN: 51389
LXIII. Rifle, MNF: unknown, Model: Bolt Action Rifle, Cal: 308, SN: 001
LXIV. Shotgun, MNF: unknown, Model: Double Barrel, Cal: 16, SN: none
LXV. Rifle, MNF: unknown, Model: unknown, Cal: 410, SN: 49061
LXVI. Rifle, MNF: Harrington and Richardson, Model: 700 22 WMRF, Cal: 22, SN: AS501498
LXVII. Shotgun, MNF: unknown, Model: none listed, Cal: 410, SN: none
LXVIII. Shotgun, MNF: unknown, Model: Batavia Leader, Cal: 16, SN: 95218
LXIX. Shotgun, MNF: Remington Arms Company Inc., Model: Double Barrel, Cal: 16, SN: 1087
LXX. Shotgun, MNF: unknown, Model: 60, Cal: 12, SN: none
LXXI. Shotgun, MNF: Marlin Firearms Co., Model: Marlin Goose Gun, Cal: 12, SN: 71375287
LXXII. Rifle, MNF: unknown, Model: 1915, Cal: 22, SN: M347
LXXIII. Rifle, MNF: unknown, Model: Six Corp, Cal: 762, SN: 8803159
LXXIV. Rifle, MNF: Winchester, Model: 67, Cal: 22, SN: none
LXXV. Rifle, MNF: Hopkins and Allen, Model: none listed, Cal: 22, SN: none
LXXVI. Rifle, MNF: R.B. Rodda, Model: none listed, Cal: 243, SN: 26599
LXXVII. Shotgun, MNF: Hopkins and Allen, Model: Double Barrel, Cal: 16, SN: 32483
LXXVIII. Rifle, MNF: Chipmunk Manufacturing Co., Model: Chipmunk 22 SL, Cal: 22, SN: 22411
LXXIX. Shotgun, MNF: unknown, Model: none listed, Cal: 12, SN: 58044A
LXXX. Rifle, MNF: Italy, Model: Fillipietta Cat 3046, Cal: 22, SN: SA6882
LXXXI. Rifle, MNF: Remington Arms Company Inc., Model: Fieldmaster 572, Cal: 22, SN: A1414103
LXXXII. Rifle, MNF: unknown, Model: UNK, Cal: 308, SN: none
LXXXIII. Rifle, MNF: unknown, Model: M1 Carbine, Cal: 30, SN: none
LXXXIV. Rifle, MNF: unknown, Model: none listed, Cal: 762, SN: 61295
LXXXV. Rifle, MNF: BSA (Birmingham Small Arms), Model: Lever Action, Cal: 32, SN: 19314
LXXXVI. Rifle, MNF: Savage, Model: 15, Cal: 22, SN: none
LXXXVII. Rifle, MNF: Mossber, Model: 810AHT, Cal: 30-06, SN: 1010064
LXXXVIII. Rifle, MNF: Winchester, Model: 74, Cal: 22, SN: 274591A
LXXXIX. Rifle, MNF: Remington Arms Company, Inc., Model: 12-C, Cal: 22, SN: RW448317
XC. Rifle, MNF: Browning, Model: UNK, Cal: 12, SN: 0017
XCI. Rifle, MNF: Harrington and Richardson, Model: Shikari 155, Cal: 44, SN: AS228207
*1160 XCII. Rifle, MNF: Harrington and Richardson, Model: Topper M48, Cal:410, SN: J55626
XCIII. Rifle, MNF: Harrington and Richardson, Model: 176 10 G Magnum, Cal: 10, SN: AS217937
XCIV. Shotgun, MNF: Ranger Arms Company, Inc., Model: UNK, Cal: 12, SN: 4370
XCV. Shotgun, MNF: Remington Arms Company, Inc., Model: 870, Cal:12, SN: 840197V
XCVI. Rifle, MNF: Springfield Firearms Corporation, Model: UNK, Cal: 22, SN: none
XCVII. Shotgun, MNF: Springfield Firearms Corporation, Model: UNK, Cal: 12, SN: Y370
XCVIII. Shotgun, MNF: Mossberg, Model: 1000, Cal: 12, SN: FD09288
XCIX. Rifle, MNF: Mauser, Model: Argentino 1891, Cal: * *, SN: B9190
C. Shotgun, MNF: Savage, Model: 77F, Cal: 12, SN: none
CI. Shotgun, MNF: Remington Arms Company, Inc., Model: 870, Cal: 16, SN: S669351 V
CII. Shotgun, MNF: Unknown, Model: BATAVIBAKER, Cal: 16, SN: 152116
CIII. Rifle, MNF: Brescia Armas, Model: 1936 XIV, Cal: 762, SN: D8840
CIV. Shotgun, MNF: unknown, Model: 66, Cal: 12, SN: none
CV. Shotgun, MNF: Winchester, Model: 37, Cal: 16, SN: none
CVI. Rifle, MNF: Harrington and Richardson, Model: UNK, Cal: 12, SN: 35853C
CVII. Shotgun, MNF: Savage, Model: Stevens, Cal: 12, SN: none
CVIII. Shotgun, MNF: Remington Arms Company, Inc., Model: 200D, Cal: 12, SN: none
(Filing 70 (Preliminary Order of Forfeiture).)
There were no objections to the presentence report (PSR) and I adopted that report. (Filing 77 (Tentative Findings).) The defendant was 43 at the time of sentencing in 2006. (PSR at 2.) His mother, Wanda, was 73 years of age at the time of sentencing. (PSR ¶ 49.) The defendant's father, Cecil, died in February of 2000. (PSR ¶ 48.)
The defendant had a long history of marijuana abuse. (PSR ¶ 55.) He also occasionally used methamphetamine, but he claimed to have stopped using methamphetamine about year prior to his arrest. (PSR ¶ 55.)
The defendant obtained his high school diploma much later than is typical. (PSR ¶ 56.) As we shall see, the defendant's brother, David, paid for that schooling and he also paid for training so that Ricky could become a gunsmith.
The probation officer interviewed Mrs. McCollum. She reported that "most of the firearms located in the defendant's residence belonged to her" and "[s]he further reported that the defendant's father had collected the firearms." (PSR ¶ 49.) At that residence, and between 2000 and 2004, the defendant had operated Blue Hollow Gun Works. (PSR ¶ 59.)
The government told the probation officer that three cooperating individuals had provided information that in mid-2003 the defendant traded a gun to a known methamphetamine user, Michael Andrews, in exchange for cash and methamphetamine.[5]*1161 (PSR ¶ 17.) The defendant admitted that the "charge is true." (PSR ¶ 20.) On October 31, 2005, Andrews was sentenced to 180 months in prison for his involvement in a methamphetamine conspiracy and possession of a firearm during a drug trafficking offense. (PSR ¶ 15.)
Ricky T. McCollum's criminal history Category was I and his total offense level was 12. (PSR ¶ 66.)[6] His Guidelines imprisonment range was 10 to 16 months. (PSR ¶ 66.) He was eligible for a split sentence. (PSR ¶ 67.) In May of 2006, and upon the recommendation of the probation officer, I sentenced the defendant to 5 months in prison and 3 years of supervised release with 5 months of that supervised release requirement to be served in the home confinement program. (Filing 80 (Judgment).)
B. Mrs. McCollum's Evidence
Mrs. McCollum attended the hearing together with her other son, David McCollum. They offered testimony and documentary evidence that tended to support much, but not all, of Mrs. McCollum's claim.
1. The Testimony of Mrs. McCollum
Mrs. McCollum, who is hard of hearing but very sharp-minded, testified that she had been married to her husband Cecil (Todd) McCollum for over 50 years and that she was 73 years of age. (Tr. 8, 18.) She said her late husband worked for the railroad for 42 years. (Tr. 39.) Cecil collected guns all of his life, and his large collection included guns handed down from his father, grandfather and great grandfather. (Tr. 9, 13.) He died in 2000, leaving Mrs. McCollum, the defendant and David McCollum as the sole surviving heirs. (Tr. 10-11.)
While there was no will, and no probate proceedings, Mrs. McCollum believed that she inherited her husband's gun collection and she claimed that collection as her own. (Tr. 10, 14, 23.) She specifically testified that she never gave the gun collection to the defendant, stating "they were my guns until I passed away." (Tr. 14.) Pursuant to an understanding that she had with her husband, and after she passed away, the guns were to be divided between her two sons. (Tr. 14.) According to Mrs. McCollum, that was only "natural." (Tr. 14.)
Mrs. McCollum said that she left the rural (and very modest) family home sometime in 2001 (Tr. 28), after her husband died, because she was diagnosed with cancer and told that she needed back surgery. (Tr. 9-10, 12.) She then moved into town, presumably so she could be close to her medical providers. When she moved she left the guns and other personal property at the family home (Tr. 12) and asked the defendant to "go out and stay in the house" because "I didn't know what else to do at the time." (Tr. 14.) (As we shall see, Mrs. McCollum's other son lives in Arizona.) She said the gun collection was left in the house, particularly in a cabinet and under the bed in the room her husband used prior to his death. (Tr. 47-48.)
Mrs. McCollum affirmed that she and her husband owned the home and that she still owned the home. (Tr. 15.) The government admitted that this was true. In fact, the case agent specifically testified that Mrs. McCollum holds the title to the residence where the guns were found and she pays the taxes on that real property. (Tr. 70.)[7]
Mrs. McCollum further testified that he son David had paid for the defendant to *1162 study and receive his high school diploma and to learn to be a gunsmith. (Tr. 16.) In that same vein, Mrs. McCollum added that she bought all the tools, parts and equipment the defendant needed to operate a gunsmith business and that she believed he operated that business from a shed adjacent to the family home. (Tr. 17-18.) Mrs. McCollum testified that the defendant had a firearms license (Tr. 19-20) and the government agreed that the defendant acquired a federal firearms license in 2000 or 2001. (Tr. 51.)
Because of her health problems, Mrs. McCollum testified that she seldom went back to the family home. (Tr. 18, 28.) She specifically denied knowing that the defendant "was doing anything wrong out there." (Tr. 17.)
While Mrs. McCollum was sure her husband had purchased ammunition, she could not be specific about the type or quantity. (Tr. 24-25.) Additionally, and because she believed it belonged to the defendant's girlfriend, Mrs. McCollum admitted that she had no claim to a "Hipoint" rifle which is listed on the preliminary order of forfeiture. (Tr. 27.)[8]
After the death of her husband, and at the urging of her son David, Mrs. McCollum testified that she purchased the parts for a "Serbu 50 caliber" rifle so the defendant could build the gun, and learn how to work "on these 50 calibers." (Tr. 16.) She said that the gun was also to be a tribute to her late husband who always wanted to go to Africa and hunt. (Tr. 16.) The defendant was supposed to place the words "Hot Totty," her husband's nickname, on the weapon. (Tr. 16.) There is a gun that partially matches Mrs. McCollum's description on the preliminary order of forfeiture.[9]
2. The Testimony of David McCollum
David McCollum testified that he was nearly 50 years of age, that he was retired from a career in the Marines, that he had been a warrant officer, and that he presently worked for the United States as an engineer at a Marine Corps base in Arizona. (Tr. 30-31.) He was candid and extremely credible.
David McCollum confirmed that his father had a large gun collection. (Tr. 31-32.) In fact, it was so large that shortly after his father passed away David and his wife prepared a partial[10] inventory of the weapons. (Tr. 32-34; McCollum Exhibit 2.[11]) David McCollum produced a copy of the inventory, but acknowledged that it was difficult to read. (Tr. 34; McCollum Ex. 2.)
David McCollum testified that his father, shortly before his death, asked David to help Ricky because Ricky's life had been troubled and Ricky had little education and no trade. (Tr. 35.) David agreed and thus paid for schooling that provided Ricky with his high school diploma and the skills necessary to become a gunsmith. (Tr. 35.)
After his father died, David stated his mother purchased tools and equipment so that Ricky could work as a gunsmith. (Tr. 35.) David stated (and lamented) that he was responsible for his mother buying the *1163 parts for the 50 caliber rifle. (Tr. 35-36.) He asked his mother to buy the parts and provide them to Ricky so he could "get training on a weapon that the military was using." (Tr. 36.) He also confirmed that he wanted his brother to put his father's name on the weapon. (Tr. 36.)
David McCollum testified that he visited the family home in 2003. At that time he saw guns in a cabinet in his father's bedroom, guns hanging on the wall in the living room and guns under the bed in his father's room. (Tr. 46-47.)
During the life of their father, David McCollum testified that both he and Ricky McCollum bought guns at the direction of and for their father with money their father had given them. (Tr. 38.) The elder McCollum, who had no criminal record, directed his boys to buy weapons for him because he wanted to avoid a dispute with his wife about acquiring more guns. (Tr. 39.) David McCollum did not believe Ricky McCollum ever had the money to buy guns for himself. (Tr. 38.)
3. Mrs. McCollum's Exhibits
Mrs. McCollum presented three exhibits. McCollum Exhibit 1 consists of various credit card receipts, invoices and tax statements. Among other things, the records show that Mrs. McCollum paid the taxes on the real property where the defendant lived and that she bought and paid for many items clearly related to the defendant's gunsmith business.
Notably, the invoices from Brownells, Inc., show that from 2001 to 2005 a large number of tools, parts and equipment related to the gunsmith business were shipped directly to "MCCOLLUM GREEN HOLLOW GUN WORK" and "RICKY MCCOLLUM." From those invoices, it appears that Mrs. McCollum's Visa card was the source of the payments.
McCollum Exhibit 2 is the inventory of the gun collection prepared by David McCollum and his wife shortly after David's father died. While it is very difficult to read, I count over 60 shotguns and rifles listed on the document. This number is consistent with the 67 rifles and shotguns listed on the preliminary order of forfeiture.
However, and because the inventory is hard to read and because it uses different descriptive words, I cannot match the rifles and shotguns listed on the inventory with the rifles and shotguns listed on the preliminary order of forfeiture. As a result, I cannot be absolutely certain that the guns on the inventory are the same guns listed on the preliminary order of forfeiture. That said, it is more probable than not that many of them are the same.
A few handguns (including a revolver) are also listed on the inventory, and one handgun (described as a revolver) is listed on the preliminary order of forfeiture. Once again, it is not possible to match any of the handguns shown on the inventory with the handgun on the preliminary order of forfeiture.
Save for a reference to "black powder," no ammunition is listed on the inventory. Numerous items of ammunition are listed on the preliminary order of forfeiture.
McCollum Exhibit 3 contains several affidavits and letters stating that Cecil "Todd" McCollum owned an extensive gun collection prior to his death. For example, Lt. Colonel Craig Watts submitted an affidavit.
Among other things, Watts stated that he had been in the McCollum home on numerous occasions over many years while the senior McCollum was alive. Watts knew that "Todd" McCollum had a large gun collection. He recalled "counting some fifty different rifles and shotguns" and one revolver. (McCollum Ex. 3; Affidavit of Craig Watts dated May 22, 2006).
*1164 C. The Government's Evidence
The government presented the testimony of Clay Nolte, a special agent with the ATF. Agent Nolte was also very credible. The government additionally presented exhibits that were received into evidence.
Agent Nolte sketched the background for his investigation into the affairs of the defendant and his application for a search warrant. (Tr. 50-51; Government's Exhibit 1 (Application and Affidavit for Search Warrant and Search Warrant).) The agent also described his execution of the search warrant and what he found. (E.g., Tr. 55.)
Agent Nolte testified that he found numerous guns in the residence and some of them were loaded. (Tr. 55.) The "majority of them" were in "the master bedroom" in a cabinet. (Tr. 55.) There were guns displayed on the wall of the house and probably "12 to 15 guns stacked just in a leaning position [against] the wall. . . ." (Tr. 55.) While most of the weapons were found in the house, Nolte thought that "close to a dozen firearms" were found in the shed. (Tr. 55.) The agent estimated that he seized approximately 70 guns and "probably over 100 pounds of ammunition." (Tr. 57.)
When the defendant returned to the home sometime after the execution of the warrant, the agents interviewed him. He admitted that he had given a gun to an individual and received methamphetamine in return. (Tr. 58.) At various times, the defendant also said the guns found in the residence and shed belonged to his deceased father, or they were "his and his Dad's," or "they were his guns." (Tr. 58-59; Government's Exhibit 3 (tape of postarrest interview).) The defendant did not mention his mother. (Tr. 58.) The defendant was upset when he learned the guns were to be confiscated by the government, and stated that his brother, who lived in Arizona, would want the guns. (Tr. 58.)
By searching postal service records, the agent confirmed that Mrs. McCollum had moved into town. (Tr. 63.) He believed she moved to town "around 2002" but she might have moved earlier. (Tr. 63.) The agent also confirmed that title to the real property belonged to Mrs. McCollum and that she paid the taxes. (Tr. 70.) The agent did not know of Mrs. McCollum's interest until after she filed a claim in this case. (Tr. 61-62, 70.)
The agent presented a video documenting the search of the home and the shed. (Government's Exhibit 2.) I have reviewed the video. From that review, I find that most of the weapons were located in the home. Only a few[12] weapons were located in the shed and those weapons cannot be specifically identified from the video.[13] Most of the ammunition was found in one or more drawers in the shed.
I saw at least one weapon displayed on the wall of the shed and that display was generally similar to a display in the home. I also saw what may have been a "receiver" on a bench.[14] The shed also contained numerous parts, tools, and equipment that *1165 are obviously associated with a gunsmith's business.
As shown on the video, the shed itself was locked when the agents executed their search warrant. They had to break the lock. On the video, the defendant's girlfriend is heard to say that the defendant has the only key to the shed and he was not then available. The shed is only a few feet from the residence.
During the testimony of Mrs. McCollum, the government represented that three weapons, 2 handguns and a rifle, belonged to Charlie Bressman and those weapons were apparently returned to him. (Tr. 26-27.) Those weapons are not described on the preliminary order of forfeiture. There is no evidence showing where those weapons were located at the time of the seizure. Specifically, it is not possible to determine from the video whether those weapons were located in the residence or in the shed.
II. ANALYSIS
I first review federal law. Then I examine the government's concessions and Nebraska law. After that, I apply the law to the facts.
A. Federal Law
Although this is a criminal case, the matter before me is quasi-civil in nature and arises pursuant to 21 U.S.C. § 853(n) (criminal forfeiture and third-party interests). After an initial order of forfeiture has been entered in a criminal case against a defendant and his property, the law allows an interested third-person to contest the forfeiture of the property by filing a "petition" to "adjudicate the validity of [the third-person's] alleged interest in the property." 21 U.S.C. § 853(n)(2).
If such a petition is submitted within the time allowed by law, the judge is obligated to hold a hearing. Id. The hearing is "before the court alone, without a jury." Id. After the hearing, "the court shall amend the order of forfeiture" to protect the interests of the third-party if that party has proven "by a preponderance of evidence" at least one of two things:
(1) (a) the petitioner has a legal right, title or interest in the property, and (b) such right, title or interest renders the forfeiture order invalid in whole or in part because (I) the right, title or interest was vested in the petitioner rather than the defendant or (ii) was superior to any right, title or interest of the defendant at the time of the commission of the acts which give rise to the forfeiture of the property;
or
(2) (a) the petitioner is a bona fide purchaser for value of the right, title or interest in the property and (b) was at the time of the purchase reasonably without cause to believe that the property was subject to forfeiture.
Compare 21 U.S.C. § 853(n)(6)(A) with 21 U.S.C. § 853(n)(6)(B).
In addition to the statutory rules, an Eighth Circuit case, United States v. Totaro, 345 F.3d 989 (8th Cir.2003), presents two important additional principles that are also applicable here. They are:
(1) When deciding whether a claimant under 21 U.S.C. § 853(n) has an interest that must be protected, the court looks to state law to determine the nature and extent of the claimed interest except when that law frustrates an important federal interest. Totaro, 345 F.3d at 994 (reversing forfeiture of wife's interest and remanding the case for further proceedings; construing 18 U.S.C. § 1963(l), but stating that it is identical to 21 U.S.C. § 853(n) and relying on cases decided under section 853(n); applying New York law).
*1166 (2) Under 21 U.S.C. § 853(n), a third-party who innocently acquires an interest in the subject property is protected to the extent of that interest even though the defendant may have subsequently exercised some dominion or control over the property. Totaro, 345 F.3d at 997 (the district court's decision that wife of husband who was convicted of 61 counts of RICO violations had forfeited entire estate, consisting of two parcels of land, unimproved house, and improvements to land, based on finding that wife had no interest that was superior to husband's, was in error, even though proceeds from husband's RICO violations were filtered through wife's checking account to pay for mortgages, real estate taxes, and maintenance; wife proved by preponderance of the evidence that she received one-half of first land parcel as gift from husband with funds untainted by the RICO violations and that she purchased remaining one-half of parcel from one of husband's creditors apparently without assistance from husband).
B. The Government's Concessions and Nebraska Law
Relying upon Nebraska law, the government candidly states:
According to Mrs. McCollum's testimony, she acquired an interest in the weapons found in Ricky McCollum's possession through intestate succession following her husband's death. Based on her testimony, she appears to be a bona fide purchaser for value of some weapon parts she purchased for Ricky.[15] Additionally, based on the marital interest she had or acquired upon her husband's death, she would have had a superior legal right, title or interest in the weapons at the time of her husband's death.[16] (Filing 90 at 4-5 (Government's Brief) (Italics in original).)
I agree with the government's use and reading of Nebraska law. Indeed, I decide that in this case application of Nebraska law will not frustrate a federal interest. Subject to qualifications which I discuss later, I further decide that (1) Mrs. McCollum held sole title, or possessed a superior legal right, to the gun collection[17] as a result of the intestacy laws[18] or (2) she was a bona fide purchaser for value of the 50 caliber rifle[19] and the receiver and she was without notice of her son's illegality.[20]
However, the government does not give up. It argues that when Mrs. McCollum left the family home, after her husband died, "she gifted the weapons to Ricky. . . ." (Filing 90 at 5.) The United States also contends that she he made a *1167 gift of "the weapons parts she had purchased for him." (Filing 90 at 5.)
Under Nebraska law, in order to prove that a gift has been made, a party must present evidence that shows three things. See, e.g., In re Estate of Lamplaugh, 270 Neb. 941, 708 N.W.2d 645, 650 (2006) (applying Nebraska law to a gift of a check). That is, "there must be an intention to transfer title to the property, and a delivery by the donor and acceptance by the donee." Id. (citation omitted.)
Perhaps the most import element of this three-part test is the donor's intent. Thus, a "clear and unmistakable intention on the part of the donor to make a gift of his or her property is an essential element of the gift, and this contention must be inconsistent with any other theory." Id. (Citation omitted; emphasis added.)
The government's gift argument requires a more detailed analysis before a proper decision can be made. With that and other issues to resolve, I next apply the law to the facts.
C. The Law Applied to the Facts
I first examine the law and the facts regarding the gun collection. Then, I discuss the remaining property.
1. The Gun Collection
Two questions require discussion. They are: (1) What does the gun collection include? (2) Did Mrs. McCollum give the gun collection to Ricky, the defendant?
First, while the parties have spoken generically about a "gun collection" and the government does not dispute that Cecil (Todd) McCollum actually assembled a very large "gun collection," there is a certain degree of ambiguity about what makes up that collection. As best I can, I now resolve that ambiguity.
I find by the greater weight of the evidence that the "gun collection" does not include the ammunition, the receiver, a rifle described as "MNF: Hipoint, Model: 995, Cal: 9, SN: A20651" and a rifle described as "MNF: Serbu Firearms, Model: BFG-50, Cal: 50, SN: 523." I come to this decision, for among other reasons, the following:
. Mrs. McCollum has failed to convince me by the greater weight of the evidence that the collection included ammunition of the type and quantity found in the shed. Her evidence is too vague. Specifically, there is no evidence that Cecil (Todd) McCollum possessed 100 pounds of ammunition (the amount found by the ATF) at the time of his death. Although not dispositive, I also note that most of the ammunition was found in drawers in the shed, the shed was locked and the shed was under the exclusive control of the defendant at the time of the seizure.
. Mrs. McCollum does not contend that the two rifles or the receiver I have excluded were a part of the gun collection. Even if she did, her evidence would be insufficient.
Save for the two rifles mentioned above, I also find by the greater weight of the evidence that the gun collection includes all the rifles, all the shotguns and the one revolver listed on the preliminary order of forfeiture. I come to this decision, for among other reasons, because of the following:
. Over 60 rifles and shotguns are listed on the inventory prepared shortly after Cecil (Todd) McCollum's death and roughly the same number of rifles and shotguns are listed on the preliminary order of forfeiture. A revolver is also listed on the inventory and on the preliminary order of forfeiture. There is no evidence that any of the items listed on the inventory were disposed of between the time of the inventory and the time of the seizure.
*1168 . Save for the Serbu rifle excluded from the collection, there is no evidence that any of the rifles or shotguns listed on the preliminary order of forfeiture were assembled by the defendant or were otherwise "homemade."
. Most of the weapons were found where Mrs. McCollum left them; that is, the great majority of the weapons were found in the bedroom used by her husband and otherwise throughout the house where they had previously been kept. While several weapons were found in the shed, and the shed was under the exclusive control of the defendant, there is no evidence that the defendant made or assembled those weapons. In fact, one weapon was displayed on the wall of the shed in a manner similar to a display in the home. This similarity suggests that the weapon displayed in the shed was a part of the gun collection and it further suggests that the defendant may have moved a few pieces of the collection into the shed for display purposes.
. The inventory lists a revolver and so does the preliminary order of forfeiture.
Second, having determined that Mrs. McCollum owned the gun collection outright (or at least held a superior legal interest to it) as a result of Nebraska's intestacy laws, and having now defined the scope of the collection, I must address the government's contention that Mrs. McCollum made a gift of the collection to her son Ricky, the defendant. I turn to that issue now.
The evidence does not convince me that Mrs. McCollum made a gift of the gun collection to the defendant. On the contrary, the persuasive evidence shows that Mrs. McCollum intended to keep the collection in tact so that both of her boys would enjoy the fruits of their father's collection upon her death. As she said, that was only "natural." (Tr. 14.) In short, the evidence wholly fails to show that Mrs. McCollum did anything to manifest a "clear and unmistakable intention . . . to make a gift" of the gun collection. In re Estate of Lamplaugh, 708 N.W.2d at 650 (emphasis added).
In particular, I am not persuaded by the government's argument that Mrs. McCollum intended to make a gift of the gun collection because she left her rural home and its contents and allowed Ricky to move into the home. Given the fact that Mrs. McCollum was sick with cancer and suffered from a back problem thus necessitating a move into town for medical reasons, given the further fact that her one son, David, lived in Arizona and that Mrs. McCollum credibly testified that she essentially asked her other son, Ricky, to become a caretaker for the home and its contents due to her illness, and given the fact that there is no reason to think that Mrs. McCollum was motivated to "disinherit" David when it came to the gun collection,[21] the evidence fails to prove that Mrs. McCollum "clearly" and "unmistakably" expressed her intent to make a gift of the gun collection to the defendant. On the contrary, Mrs. McCollum continued to pay taxes on the home. This is strong, objective and contemporaneous evidence of her desire to preserve her legal right to the home and all its contents.
*1169 2. The Other Property
I turn next to property not included in the gun collection. That property is the ammunition, the receiver and the 50 caliber rifle. Three points should be made.
First, and as for the ammunition, there is no evidence that Mrs. McCollum paid for it. I have carefully reviewed the bank card statements and the other evidence (McCollum Exhibit 1) and those records, while documenting other gunsmith-related purchases, do not clearly document ammunition purchases. Therefore, the evidence does not show by the greater weight of the evidence that she was a bona fide purchaser for value of the ammunition within the meaning of 21 U.S.C. § 853(i)(6)(B).
Second, and on the other hand, the records (McCollum Exhibit 1) do clearly demonstrate the purchase of Serbu rifle parts and various other parts which could have included the receiver. As indicated earlier, I decide that Mrs. McCollum was a bona fide purchaser for value of those items within the meaning of 21 U.S.C. § 853(n)(6)(B). And, as I have also stated earlier, I believe that she had no notice of her son's illegal behavior. (Indeed, her son possessed a license issued by the federal government.)
Third, assuming that Mrs. McCollum was a bona fide purchaser for value of the ammunition (even though I have found otherwise) and having found that she was a bona fide purchaser for value of the Serbu rifle parts and the receiver, and having also found that she was without notice of her son's illegal behavior, I nevertheless conclude that Mrs. McCollum made a gift of those items to the defendant. Among others, I arrive at this decision for the following reasons.
. Mrs. McCollum's own evidence (McCollum Exhibit 1) conclusively shows that she bought the items Ricky used in his business, but permitted them to be shipped directly to the defendant in his name or in the name of his gunsmith business. She maintained no legal interest in these items once they were delivered. For example, she failed to take a security interest in the items under the Uniform Commercial Code. As a result, it would have been apparent to Mrs. McCollum that her son was free to dispose of these items in his ongoing business despite the fact that she bought and paid for them. Indeed, the defendant operated the business from a locked shed that could be accessed only by the one key that only he possessed.
. Still further, and perhaps most importantly, it is obvious that Mrs. McCollum intended to "give" her son the parts and equipment because the practice of making "gifts" to support Ricky's gunsmith business had become a "family tradition." Just as David McCollum supported his brother by making a "gift" of tuition so that Ricky could become a gunsmith, Mrs. McCollum made a gift of the paraphernalia necessary to operate Ricky's gunsmith business.
III. CONCLUSION
I respectfully offer Mrs. McCollum some free advice, but it is entirely up to her whether she accepts or rejects it. My advice is this:
Ricky is a convicted felon. He cannot legally possess a gun. For practical purposes, he can't even be around guns. It would be a good idea to ask David to help you with the collection.
IT IS ORDERED that:
1. Wanda T. McCollum's motion (filing 75), construed as a petition pursuant to 21 U.S.C. § 853(n), is denied in part and granted in part as hereinafter provided.
*1170 2. Referring to the numbering method used in the preliminary order of forfeiture (filing 70), Mrs. McCollum's petition is denied as to the ammunition, a receiver and two rifles, all of which are hereinafter described, such property is finally forfeited to the government, and the government may dispose of said property, to wit:
I. Ammunition, Qty: 1; MNF: other, Cal: 37
II. Ammunition, Qty: 19; MNF: Remington, Cal: 257
IV. Receiver, Model: Model 98, Cal: * *, SN: none
VI. Ammunition, Assorted, Qty: 111; MNF: Remington, Cal: 12
VIII. Ammunition, Qty: 188; MNF: unknown, Cal: 765
XIII. Ammunition, Assorted Qty: 22; MNF: other, Cal: 257
XIV. Ammunition, Qty: 54; MNF: Remington, Cal: 7
XV. Ammunition, Qty: 1; MNF: Winchester-Western, Cal: 300
XVI. Ammunition, Qty; 6; MNF: Remington, Cal: 22-250
XVII. Ammunition, Qty: 6; MNF: Winchester-Western, Cal: 270/20
XVIII. Ammunition, Qty: 11; MNF: Winchester-Western, Cal: 308
XIX. Ammunition, Qty: 78; MNF: Federal, Cal: 30-06
XX. Ammunition, Qty: 6; MNF: Winchester-Western, Cal: 243
XXI. Ammunition, Qty: 51; MNF: Winchester-Western, Cal: 30-30
XXII. Ammunition, Qty: 11; MNF: unknown, Cal: 792
XXIII. Ammunition, Qty: 1; MNF: Winchester-Western, Cal: 220
XXIV. Ammunition, Qty: 142; MNF: Federal, Cal: 12
XXV. Ammunition, Qty: 8; MNF: unknown, Cal: 50
XXVI. Ammunition, Qty: 4; MNF: Remington, Cal: 44
XXVIII. Ammunition Components, Qty: 1720; MNF: Winchester-Western, Cal: * *
XXIX. Ammunition, Qty: 51; MNF: Federal, Cal: 12
XXX. Ammunition, Qty: 226; MNF: Remington, Cal: 12
XXXI. Ammunition, Qty: 400; MNF: other, Cal: 762
XXXII. Ammunition, Qty: 164; MNF: Winchester-Western, Cal: 12
XXXIII. Ammunition, Qty: 50; MNF: Winchester-Western, Cal: 16
XXXIV. Ammunition, Qty: 20; MNF: Winchester-Western, Cal: 20
XXXV. Ammunition, Qty: 9; MNF: Westerfield, Cal: 20
XXXVI. Ammunition, Qty: 6; MNF: Winchester-Western, Cal: 10
XXXVII. Ammunition, Assorted, Qty: 97; MNF: Remington, Cal: 22
XL. Ammunition, Qty: 28; MNF: Remington, Cal: 410
XLII. Ammunition, Qty: 3; MNF: Remington, Cal: 10
XLIII. Ammunition, Qty: 10; MNF: Remington, Cal: 28
XLIV. Ammunition, Qty: 4; MNF: Fiocchi, Cal: 303
XLVI. Ammunition, Qty: 72; MNF: LC (Lake City), Cal: 30
XLVII. Ammunition, Qty: 14; MNF: Winchester-Western, Cal: 45
XLVIII. Ammunition, Qty: 22; MNF: PMC, Cal: 223
XLIX. Ammunition, Qty: 5; MNF: Winchester-Western, Cal: 44
L. Ammunition, Qty: 40; MNF: other, Cal: 6
*1171 LI.Ammunition, Qty: 50; MNF: United States Cartridge Co., Cal: 9
LII. Ammunition, Qty: 6; MNF: Winchester-Western, Cal: 380
LVII. Rifle, MNF: Hipoint, Model: 995, Cal: 9, SN: A20651
LVIII. Rifle, MNF: Serbu Firearms, Model: BFG-50, Cal: 50, SN: 523
3. Referring to the numbering method used in the preliminary order of forfeiture (filing 70), Mrs. McCollum's petition is granted as to the rifles, shotguns and handgun hereinafter described, and the government shall return said property to Mrs. McCollum, to wit:
III. Rifle, Model: Hoban Rifle, Cal: 22, SN: 45
V. Shotgun, MNF: unknown. Receiver only, Model: unknown, Cal: * *, SN: none
VII. Shotgun, MNF: Ithaca Gun Co. Model: 51 Fetherlight, Cal: 12, SN: XXXXXXXXX
IX. Rifle, MNF: unknown, Model: McCollums, Cal: 270, SN: 003
X. Shotgun, MNF: unknown, Model: Hiawatha 130 Vr-F, Cal: 20, SN: none
XI. Shotgun, MNF: Savage, Model: 94 series M, Cal: 410, SN: C517713
XII. Shotgun, MNF: unknown, Model: SB-100B, Cal: 20, SN: B084872
XXVII. Shotgun, MNF: Harrington and Richardson, Model: 155, Cal: 45-70, SN: AM288419
XXXVIII. Rifle, MNF: Savage, Model: 170B, Cal: 30-30, SN: D262099
XXXIX. Rifle, MNF: Marlin Firearms Co., Model: Glenfield Model 10, Cal: 22, SN: unknown
XLI. Shotgun, MNF: Laurona-Armas Eibar, S.A.L., Model: Double Barrel, Cal: ZZ, SN: 816421
XLV. Shotgun, MNF: unknown, Model: JC Higgins 583.16, Cal: 12, SN: none
LIII. Shotgun, MNF: Ithaca Gun Co., Model: Double Barrel, Cal: ZZ, SN: unknown
LIV. Rifle, MNF: Bellmore-Johnson Tool, Model: Bolt Action, Cal: 22, SN: unknown
LV. Shotgun, MNF: Hopkins and Allen, Model: Double Barrel, Cal: ZZ, SN: unknown
LVI. Handgun, MNF: unknown, Manufacturer Type: Revolver, Model: OFI Western Ranger, Cal: 22, SN: RR00241
LIX. Rifle, MNF: Harrington and Richardson, Model: Topper Model 158, Cal: 30-30, SN: AS205284
LX. Rifle, MNF: Ranger Arms Inc., Model: 103, Cal: 22, SN: none
LXI. Rifle, MNF: Western Arms Co., Model: 59, Cal: 22, SN: none
LXII. Shotgun, MNF: Westley, Richard, Model: Double Barrel, Cal: 16, SN: 51389
LXIII. Rifle, MNF: unknown, Model: Bolt Action Rifle, Cal: 308, SN: 001
LXIV. Shotgun, MNF: unknown, Model: Double Barrel, Cal: 16, SN: none
LXV. Rifle, MNF: unknown, Model: unknown, Cal: 410, SN: 49061
LXVI. Rifle, MNF: Harrington and Richardson, Model: 700 22 WMRF, Cal: 22, SN: AS501498
LXVII. Shotgun, MNF: unknown, Model: none listed, Cal: 410, SN: none
*1172 LXVIII. Shotgun, MNF: unknown, Model: Batavia Leader, Cal: 16, SN: 95218
LXIX. Shotgun, MNF: Remington Arms Company Inc., Model: Double Barrel, Cal: 16, SN: 1087
LXX. Shotgun, MNF: unknown, Model: 60, Cal: 12, SN: none
LXXI. Shotgun, MNF: Marlin Firearms Co., Model: Marlin Goose Gun, Cal: 12, SN: 71375287
LXXII. Rifle, MNF: unknown, Model: 1915, Cal: 22, SN: M347
LXXIII. Rifle, MNF: unknown, Model: Six Corp, Cal: 762, SN: 8803159
LXXIV. Rifle, MNF: Winchester, Model: 67, Cal: 22, SN: none
LXXV. Rifle, MNF: Hopkins and Allen, Model: none listed, Cal: 22, SN: none
LXXVI. Rifle, MNF: R.B. Rodda, Model: none listed, Cal: 243, SN: 26599
LXXVII. Shotgun, MNF: Hopkins and Allen, Model: Double Barrel, Cal: 16, SN: 32483
LXXVIII. Rifle, MNF: Chipmunk Manufacturing Co., Model: Chipmunk 22 SL, Cal: 22, SN: 22411
LXXIX. Shotgun, MNF: unknown, Model: none listed, Cal: 12, SN: 58044A
LXXX. Rifle, MNF: Italy, Model: Fillipietta Cat 3046, Cal: 22, SN: SA6882
LXXXI. Rifle, MNF: Remington Arms Company Inc., Model: Fieldmaster 572, Cal: 22, SN: A1414103
LXXXI. Rifle, MNF: unknown, Model: UNK, Cal: 308, SN: none
LXXXIII. Rifle, MNF: unknown, Model: Ml Carbine, Cal: 30, SN: none
LXXXIV. Rifle, MNF: unknown, Model: none listed, Cal: 762, SN: 61295
LXXXV. Rifle, MNF: BSA (Birmingham Small Arms), Model: Lever Action, Cal: 32, SN: 19314
LXXXVI. Rifle, MNF: Savage, Model: 15, Cal: 22, SN: none
LXXXVII. Rifle, MNF: Mossber, Model: 810AHT, Cal: 30-06, SN: 1010064
LXXXVIII. Rifle, MNF: Winchester, Model: 74, Cal: 22, SN: 274591A
LXXXIX. Rifle, MNF: Remington Arms Company, Inc., Model: 12-C, Cal: 22, SN: RW448317
XC. Rifle, MNF: Browning, Model: UNK, Cal: 12, SN: 0017
XCI. Rifle, MNF: Harrington and Richardson, Model: Shikari 155, Cal: 44, SN: AS228207
XCII. Rifle, MNF: Harrington and Richardson, Model: Topper M48, Cal:410, SN: J55626
XCIII. Rifle, MNF: Harrington and Richardson, Model: 176 10 G Magnum, Cal: 10, SN: AS217937
XCIV. Shotgun, MNF: Ranger Arms Company, Inc., Model: UNK, Cal: 12, SN: 4370
XCV. Shotgun, MNF: Remington Arms Company, Inc., Model: 870, Cal:12, SN: 840197V
XCVI. Rifle, MNF: Springfield Firearms Corporation, Model: UNK, Cal: 22, SN: none
*1173 XCVII. Shotgun, MNF: Springfield Firearms Corporation, Model: UNK, Cal: 12, SN: Y370
XCVIII. Shotgun, MNF: Mossberg, Model: 1000, Cal: 12, SN: FD09288
XCIX. Rifle, MNF: Mauser, Model: Argentine 1891, Cal: * *, SN: B9190
C. Shotgun, MNF: Savage, Model: 77F, Cal: 12, SN: none
CI. Shotgun, MNF: Remington Arms Company, Inc., Model: 870, Cal: 16, SN: S669351 V
CII. Shotgun, MNF: Unknown, Model: BATAVIBAKER, Cal: 16, SN: 152116
CIII. Rifle, MNF: Brescia Armas, Model: 1936 XIV, Cal: 762, SN: D8840
CIV. Shotgun, MNF: unknown, Model: 66, Cal: 12, SN: none
CV. Shotgun, MNF: Winchester, Model: 37, Cal: 16, SN: none
CVI. Rifle, MNF: Harrington and Richardson, Model: UNK, Cal: 12, SN: 35853C
CVII. Shotgun, MNF: Savage, Model: Stevens, Cal: 12, SN: none
CVIII. Shotgun, MNF: Remington Arms Company, Inc., Model: 200D, Cal: 12, SN: none.
4. The Clerk of the Court shall mail a copy of this memorandum and order to Mrs. McCollum.
NOTES
[1] I compliment Assistant United States Attorney Nancy A. Svoboda for the kindness and fair treatment she has afforded Mrs. McCollum. Such civility is consistent with the best traditions of the Department of Justice and the bar of this court.
[2] The government does not claim that petition was untimely.
[3] In her letter, Mrs. McCollum asked that I return a hand drawn picture of her husband that she inadvertently included with her exhibits. I have done so.
[4] In exchange for these pleas, the government dismissed Count II of the Superseding Indictment which alleged that McCollum, being an unlawful user of a controlled substance, possessed a firearm transported in interstate commerce. (Filing 80 (Judgment).)
[5] According to a search warrant affidavit, Andrews told the ATF that McCollum was to "manufacture" the weapon. (Government's Ex. 1 at 4 ¶ 6.)
[6] The statutory range for this Class C felony was 0-10 years in prison. (PSR ¶ 65.)
[7] However, the government was unaware that Mrs. McCollum owned the home at the time the guns were seized. (Tr. 70.)
[8] That weapon appears to be item "LVII" on the preliminary order of forfeiture. (Filing 70 at 7.)
[9] That weapon appears to be item "LVIII" on the preliminary order of forfeiture. (Filing 70 at 7.) The preliminary order of forfeiture does not, however, indicate that the words "Hot Totty" are on this weapon.
[10] He stated that "[w]e just kinda jetted through it hurriedly. . . ." (Tr. 33.)
[11] I reserved ruling on the McCollum exhibits to give the government an opportunity to review them and submit objections. (E.g, Tr. 34.) The government has not objected to the exhibits and they are now received.
[12] As indicated in the text, Nolte testified that he estimated that there were approximately 12 guns in shed. Although it is hard to be sure, my review of the video suggests that Nolte's estimate is too high and fewer than 12 weapons were in the shed.
[13] The government did not offer evidence specifically showing where each gun was located at the time of the seizure.
[14] A "receiver" is "the metal frame in which the action of a firearm is fitted and to which the breech end of the barrel is attached." Webster's Third New International Dictionary, 1894 (1986). A "receiver" is listed as item IV on the preliminary order of forfeiture. (Filing 70 at 5.)
[15] See generally Maryott v. Oconto Cattle Co., 259 Neb. 41, 607 N.W.2d 820, 829 (2000) (discussing the differences between Nebraska common law and Nebraska's version of the Uniform Commercial Code as applied to "a good faith purchaser for value").
[16] The government cites Neb.Rev.Stat. § 30-2302(3) (defining the interest of a surviving spouse where there are children but no will; the wife takes the first $50,000 of the decedent's estate and one half of the remainder). (Filing 90 at 5.)
[17] As discussed later, I decide that the gun collection did not include ammunition. I also decide that Mrs. McCollum was not a bona fide purchaser of the ammunition and, even if she was, she gave the ammunition to the defendant.
[18] 21 U.S.C. § 853(n)(6)(A).
[19] Mrs. McCollum makes no claim to the "Hipoint" rifle. (Tr. 27.) Therefore, no further discussion of that weapon is required.
[20] 21 U.S.C. § 853(n)(6)(B).
[21] Had she done so, she would have acted in direct contravention of the wishes of her husband (Tr. 14) and there is simply no reasons to think that Mrs. McCollum was so inclined. Moreover, we know David cared deeply about his Dad's gun collection since he went to the trouble of making an inventory of the collection after his father's death. Thus, there is also no reason to think that David would have encouraged his mother to give the collection to Ricky. | 01-03-2023 | 10-30-2013 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.